Federal lawyers recommend that U.S. Supreme Court hear Rio Grande Compact case

At issue is disagreement over whether the Compact allows water users in New Mexico to take water below Elephant Butte Reservoir beyond their Rio Grande Project allocations

Texas and New Mexico are engaged in a dispute over whether New Mexico is allowing sufficient flows of Rio Grande water into Texas to meet terms of the Rio Grande Compact. Federal attorneys have filed an amicus brief recommending the U.S. Supreme Court hear the case.

The Rio Grande Compact was enacted among the states of Colorado, New Mexico and Texas to apportion the waters of the Rio Grande from its headwaters in Colorado to Fort Quitman, Texas. To meet that end, it specifies a schedule of deliveries from Colorado to New Mexico, and then similarly, specifies a schedule of deliveries from New Mexico to Elephant Butte Reservoir, where it becomes Rio Grande Project water to be delivered to irrigation districts in New Mexico and Texas according to federal water contracts.

New Mexico has been allowing diversions of surface water and pumping of hydrologically-connected groundwater below Elephant Butte Reservoir. Texas alleges that these diversions have increased over time until “they amounted to tens of thousands of acre-feet of water annually” by 2011. According to a footnote in the federal attorneys’ amicus brief, New Mexico does not contest that there have been substantial diversions.

Texas’ primary argument is that once the Rio Grande water reaches Elephant Butte Reservoir, it belongs to the Rio Grande Project. Therefore, downstream diversions of surface water and pumping of hydrologically-connect groundwater violate the project’s federal contract allocations and prevent assurance of deliveries to project beneficiaries in Texas and Mexico.

New Mexico counters with the argument that the compact requires delivery to Elephant Butte Reservoir, not the state line. Because the deliveries are made to the reservoir, it is not violating the compact. Further, New Mexico argues that Texas’ complaint is not based on an express violation of the compact, but rather that Texas water users are not receiving they are entitled to under federal contract. In addition, New Mexico claims that because the United States has not joined the case, there are venues other than the U.S. Supreme Court to hear the case.

The federal attorneys are involved because the U.S. Supreme Court invited the Solicitor General to express the views of the United States. The federal attorneys affirm Texas’ allegation that the case involves “an interstate dispute sufficient enough to warrant [the U.S. Supreme] Court’s exercise of original jurisdiction.”

Because the case involves substantive questions about the interpretation of an interstate compact, the attorneys also recommend that the Court resolve the major legal issues before referring the case to a Special Master. At issue is disagreement over whether the Compact allows water users in New Mexico to take water below Elephant Butte Reservoir beyond their Rio Grande Project allocations. The federal attorneys state on its merits, New Mexico’s claim is contrary to the purpose of the compact and to the definition of delivery.
While Colorado is a party to the Compact, it will not take a position in this case until it better understands the alleged violation.

Read the amicus brief (PDF)

Written by Marta Weismann