On the Rio Grande, Texas is waging a legal war against New Mexico that could have huge implications for southern New Mexico farmers, the state budget, and the economy.
Since the compact divvied the river’s waters among states in 1938, New Mexico’s farmers have drilled more than 2,000 groundwater wells near the Rio Grande. They use that groundwater to supplement low flows from the river.
In its suit, Texas alleges that by not better regulating groundwater pumping below Elephant Butte in southern New Mexico, state officials have allowed farmers to “intercept” water from the Rio Grande that should be flowing to Texas. When water is pumped from below ground, the river’s waters sink to recharge the aquifer, rather than flowing downstream.
New Mexico had filed a motion to dismiss the case, which is heading for the US Supreme Court. But this summer, the high court’s special master recommended rejecting that motion.
If the court hears the case, and New Mexico loses, southern farmers might have to stop pumping groundwater. And according to an AP story earlier this summer, New Mexico could have to pay as much as $1 billion in damages.
Speaking at a water law class in Santa Fe recently, New Mexico State Engineer Tom Blaine said the state is currently spending $3-4 million a year litigating the case. “Are there opportunities to settle this lawsuit?” he asked. “I’m having those conversations, and building those relationships.”
Relationships are an important consideration in the lawsuit, as is history.
Under the compact, Colorado, New Mexico, and Texas share the waters of the Rio Grande based on an intricate system of measuring annual stream flows near Colorado’s border with New Mexico and also, the amount of water stored in Elephant Butte Reservoir.
New Mexico’s water deliveries to Texas are further complicated by the fact that New Mexico deposits that water in Elephant Butte Reservoir—which is 90 miles north of the border. Then, the US Bureau of Reclamation divvies up the reservoir’s water for users in both southern New Mexico and Texas.
The current lawsuit arises in part from those complications, which are by no means new.
But, as I have written elsewhere, in 2008 the Elephant Butte Irrigation District, the United States, and Texas had come up with a new operating agreement.
As part of that, Texas agreed to grandfather in 40-years’ worth of groundwater depletions below Elephant Butte. In other words, Texas agreed to base the agreement on 1978 groundwater levels, rather than 1938 levels. That was a good deal for New Mexico considering that when the compact was signed in 1938, there were only a few wells in the area.
Local farmers liked the deal, which also allowed New Mexico and Texas farmers to share water during drought.
But New Mexico officials weren’t happy with that agreement, and in 2011 then-Attorney General Gary King sued the US Bureau of Reclamation.
Texas fired back with its own complaint to the Supreme Court.
Now, it’s a matter of waiting to see if and when the Supreme Court will hear the case.
NMID’s requests to speak with State Engineer Tom Blaine, Interstate Stream Commission Director Deborah Dixon, and attorneys from the New Mexico Office of the Attorney General were not granted.