Texas v. New Mexico Supreme Court Water Case: Issues, Process and

Interpretation

American Water Resources Association 50th Anniversary - 2014 Annual Conference

November 3-6, 2014 – Vienna, Virginia

Ari M. Michelsen, Tiffany Dowell, Zhuping Sheng and Ronald Lacewell, Texas A&M University Brian Hurd, New Mexico State University

Michelsen

Rio Grande Two Countries, Five States (jurisdiction matters)

1,900 miles (3,057 kilometers; more than half TX-Mexico border)

Basin is arid or semi-arid (Chihuahuan Desert)

Sources of water (are outside of Texas)

– Upper Basin, Snowmelt from Rocky Mountains– Lower Basin, Pecos River and Rio Conchos

Legally managed as two separate systems– Upper Rio Grande: CO, NM, TX, and MX– Lower: TX and MX, Fort Quitman to Gulf

MichelsenTexas A&M AgriLife Research Center at El Paso

1938-Three State Federal Compact Distribution of water between Colorado,

New Mexico, and Texas Compact commission 4 members, one from

each state plus Federal Government Delivery obligations measured at:

– CO - CO-NM Stateline at Lobatos– NM - at Otowi Bridge/San Marcial into Elephant Butte– TX- EB/Caballo Reservoir in NM (120 miles upstream)

Interstate - Rio Grande Compact

MichelsenTexas A&M AgriLife Research Center at El Paso

Elephant Butte Dam and Reservoir

Rio Grande Project • USBR – Authorized 1905 for agricultural irrigation• Construction completed 1916• 2.2 million acre feet storage • Water allocated based on Project acreage

• Elephant Butte Irrigation District, 90,640 acres, 57%

• El Paso County Water Improvement District, 69,010 ac. 43%

• Plus up to 60,000 acre feet to Mexico

• NM and TX water rights appurtenant to Project Land

• Tax on land used to repay USBR; reimbursed in 1980

MichelsenTexas A&M University-El Paso Research Center

Rio Grande Project Region• Chihuahuan Desert – average annual rainfall 8.5”

• Basin and range topography - elevation 3,800’ to 7,200’

• Population: El Paso, TX 770,000Ciudad Juarez, MX 1,500,000Dona Ana County, NM 200,000Total 2,470,000

• Rio Grande - Elephant Butte/Caballo Dam 120 miles upstreamFull allocation release 790,000 acre-feet for yearMajority of water used for crop irrigationExtensive agricultural distribution systemRiver channelized, US & MX levees (IBWC)

• Groundwater – major or only source for urban and agricultural use

RIO GRANDE PROJECT

MichelsenTexas A&M AgriLife Research Center at El Paso

MichelsenTexas A&M AgriLife Research Center at El Paso

MichelsenTexas A&M AgriLife Research Center at El Paso

Elephant Butte Dam and Reservoir

Elephant Butte Reservoir – 15+ years of drought

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

Drought Watch on the Rio GrandeSurface Water Supply Conditions August 28, 2013

Water Supply Conditions & Forecasts• Water in Storage is 93,778 acre-feet or 4.2% of the combined reservoir

capacity of 2.23 million acre-feet. Of this 57,604 acre-feet of the amount in storage is Rio Grande Compact and San Juan-Chama credit water which is not available for use, leaving only 1.6% of capacity available.

• 2013 was the shortest irrigation season with the lowest water deliveries in the almost 100 year history of Rio Grande Project. Spring snowpack runoff was almost zero this year. The 2014 river water supply depends almost completely on next winter’s snowpack. The Climate Prediction Center three month forecast calls for above normal temperatures and average chances of precipitation.

• The 2013 Rio Grande Project water allocation was only 6.1% of a full supply. The water allocation for 2012 was 38.7% of a full supply.

Water Available for Allocation

Combined Elephant Butte and Caballo Reservoir Storage

0%10%20%30%40%50%60%70%80%90%

100%

J F M A M J J A S O N D

Water allocation to agricultural and urban users as a percent of full supply (amount varies by district)

2,200

2,000

1,800

1,600

1,400

1,200

1,000

800

600

400

200

0

ThousandAcre Feet

2006Combined Storage4.2 %

2003

2011

2005, 08, 09Allocations

Water Not Available for Allocation

Cumulative Water Allocation for the Year

0.0 End of Releases

2007, 10

Produced by: Texas A&M AgriLife Research Center at El Paso, Texas A&M University System in cooperation with the USDOI Bureau of Reclamation, El Paso,

Texas Water Resources Institute and USDA-NIFA Rio Grande Basin InitiativeFor additional information: http://elpaso.tamu.edu/research

http://elpaso.uc.usbr.gov

Labor Day water level in Elephant Butte will be almost 115 feet below the dam.

2004, 12

The lake surface will be only 10% of the full reservoir surface area.

No Water Allocation

0.0 3.4 5.46.1 6.1 6.1 2013

Delivery

Photo of EP1 GW pumping

Michelsen

Groundwater – The Solution?

Elephant ButteReservoir

CaballoReservoir

Las CrucesHueco Basin

TexasEl Paso

Fort Quitman

MexicoCiudad Juárez

Mesilla Basin

United States

New Mexico

Rincon Basin

Paso del Norte

Increase in Wells

0

500

1000

1500

2000

2500

3000

0 200 400 600 800 1000 1200

Winter 01Summer 00Winter 00

TDS

(mg/

L)

Distance (km)

Alb

uque

rque

Elep

hant

But

te

El P

aso

TDS (salinity) of the Rio Grande

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Winter 01Summer 00Winter 00

TDS

(mg/

L)

Distance (km)

Alb

uque

rque

Elep

hant

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te

El P

aso

Recommended drinking water standard

TX/El Paso drinking water standard

Source: Dr. Fred Phillips

Michelsen

History of Litigation• USBR, EBID, EPCWID, EPWU…..• 1981 EPWU applies for NM GW rights

• NM denies, EPWU sues• Settlement Agreement 1991 • EPWU agrees to restrict pumping

• Late 1990’s, early 2000’s almost a dozen law suits

• 2007 EPCWID v. EBID, claims NM pumping diminishing deliveries and water quality

2008 Operating Agreement• USBR, EBID and EPCWID sign

Operating Agreement and drop suits

• Resolves issues over groundwater pumping, water deliveries and water quality

• EBID foregoes a portion of Project deliveries to account for groundwater pumping

• Increased deliveries to EPCWID

• Allows Irrigation Districts to carry-over water

Lack of Agreement• 2011 NMOSE files suit against USBR

• NM alleges Operating Agreement changes authorized allocation of Project Water

• 2013 Texas requests approval to file suit against New Mexico in the Supreme Court alleging NM has allowed groundwater wells that reduce delivery of 1938 Compact water to Texas

Let the Fight Begin - TX v. NM

Off to Washington

• Texas files suit in US Supreme Court.• USSC has original jurisdiction for suits between

sovereign states.• USSC invited United States to weigh in on

whether it should allow the case to go forward.

Fightin’ Words“New Mexico will not cede one inch of New Mexico water to Texas!” – NM Governor Susana Martinez

Litigants and Stakeholders

TexasCity of El Paso

El Paso CntyWID #1

New Mexico

U.S. Bureau of Reclamation

ColoradoCity of Las Cruces

Elephant Butte Irrigation District

What has the Court decided?

• Texas may file its Complaint.

• The United States may interveneand file its own Complaint.

• New Mexico may file a Motionto Dismiss, Texas will respond,and New Mexico will reply.

Texas’ Arguments• “Spirit and purpose” of the Compact!• There is less water available for Texas.• “Fundamental purpose” to ensure 1938 conditions.• 2,500 new wells have been drilled between

Elephant Butte and the state line.

What does Texas want?

• Declare the rights of the State of Texas under the Compact and Project.

• Command New Mexico to deliver waters in accordance with the Compact and Project

• Command New Mexico to cease and desist all actions that interfere with the ability of the United States to operate the project.

• Damages.

New Mexico’s Arguments• Read the Compact language!• Delivery point is Elephant Butte, not the state

line. Compact does not address this issue.• No requirement to maintain 1938 conditions.• Other remedies are proper.

State of New Mexico I. TEXAS’ CLAIMS ARE NOT APPROPRIATE FOR THE EXERCISE OF

ORIGINAL JURISDICTION.A.Texas’ claims are not based on the express terms of the Compact B.New Mexico’s Compact delivery obligation is to Elephant Butte

Reservoir and not to the New Mexico-Texas state lineC.Texas asks this Court to insert new terms into the Rio Grande Compact

1. Texas asks this court to rewrite the Rio Grande Compact2. The plain language of the Rio Grande Compact simply does not include any

protection of 1938 conditions3. The Rio Grande Compact does not require New Mexico to guarantee that water

delivered to Elephant Butte Reservoir flow unimpeded to the New Mexico-Texas state line

sources: (1) http://sblog.s3.amazonaws.com/wp-content/uploads/2013/04/3-11-13-NM-Opposition-Brief.pdf(2) Sarah Bond, NM Assistant AG and Council of Record for the State of New Mexico, Apr 2014,

Law of the Rio Grande presentation

State of New Mexico II. THE ISSUES RAISED BY TEXAS ARE BEING LITIGATED IN ALTERNATIVE

FORAA. Texas’ interests may be vindicated in ongoing cases in the Federal District Court

and in the Lower Rio Grande AdjudicationB. The United States’ distribution of Rio Grande Project water is currently being

litigated in Federal District Court C. The United States’ claims to Rio Grande Project water are properly before the

Lower Rio Grande Adjudication Court pursuant to 43 U.S.C. § 666

III. TEXAS’ MOTION FOR LEAVE MUST BE DENIED BECAUSE THE UNITED STATES IS AN INDISPENSABLE PARTY AND HAS NOT CONSENTED TO JOINDER IN THIS ACTIONSubsequently, US agreed and is now added as a plaintiff in lawsuit asserting its own claims and allegations towards BOTH NM and TX

IV. TEXAS’ FULL FAITH AND CREDIT AND GOOD FAITH AND FAIR DEALING ARGUMENTS HAVE NO MERIT

State of Colorado“Colorado is not now expressing a view on whether the Complaint adequatelyalleges a controversy between the states, but it cannot see an alleged injury based on the terms of the Compact.”

“As the home of nine interstate water compacts, Colorado believes that litigation regarding compacts should be narrow in scope.”

“Colorado requests that it be granted the ability to fully participate in any motion in the nature of a motion to dismiss. Because Colorado is a party to the Compact, it has a genuine interest in its interpretation. The United States has made several statements in its brief that concern Colorado and may adversely impact Colorado’s rights and obligations under the Compact.”

“Until Texas clearly asserts a violation of the terms of the Río Grande Compact, Colorado does not support Texas’ Motion on the basis of a compact controversy.”

United States – Bureau of Reclamation• “The effect of the 2008 Operating Agreement is that EBID agrees to forgo

a portion of its Project deliveries to account for changes in Project efficiency caused by groundwater pumping in New Mexico.”

• “The United States has a further interest in ensuring that New Mexico water users who do not have contracts with the Secretary for delivery of Project water, or who use Project water in excess of contractual amounts, do not intercept Project water or interfere with delivery of that water to other Project beneficiaries.”

• “... particularly under drought conditions, there would likely come a point at which uncapped groundwater pumping in New Mexico would reduce Project efficiency to an extent that 43% of the available water could not be delivered to Texas, even if EBID forwent all Project deliveries.”

• “The United States has an interest in ensuring that violations of the Compact by New Mexico do not prevent the United States from meeting its contractual obligations to Project beneficiaries.”

United States’ Arguments

• Look at the purpose!• The purpose is to allocate water above Ft.

Quitman, not above Elephant Butte.• NM gives up control of water when delivered.• Groundwater & surface water is

hydrologically connected.

What does the United States want?

• Declare that New Mexico:– May not permit water users without contracts to

intercept or interfere with Project water deliveries.– May not permit beneficiaries in New Mexico to

intercept water in excess of allowed amounts.– Must affirmatively act to prohibit or prevent such

interference.• Enjoin New Mexico from interfering.• Mandate that New Mexico affirmatively prevent

such interference.

Where do we go from here?• Just this week, announcement that the case is

being assigned to a Special Master.

• Years of fun will likely begin.

• Court will rule…..sometime.