Vol. No. 55-2 Water Rights

Water Rights

The U.S. Government Stands on the Opposite Side of the River as a United Group of States: Updates in Texas v. New Mexico and Colorado

1. Introduction

For around a decade, Texas and New Mexico have been in litigation over the distribution of the Rio Grande River’s waters.^[1] After years of disputes, a proposed consent decree between the states was thwarted by the federal government’s objection.^[2] The  Supreme Court upheld this, recognizing distinct federal interests in the dispute.^[3] However, this decision is likely to affect the delicate balance of authority between state and federal governments in future management of interstate water rights.^[4]

2. The Rio Grande Compact

The Rio Grande River is one of the most valuable natural resources in the American West.^[5] It originates in southern Colorado, flows through New Mexico, and then forms the international border between Texas and Mexico.^[6] Controversies over its date back to the 1880’s, when strife arose between irrigators in Mexico and the United States. In 1906, an international treaty between the United States and Mexico allocated 60,000 acre-feet of Rio Grande water to Mexico and prompted “construction by the federal government of a dam at Elephant Butte, New Mexico.”^[7] The U.S. government also entered into separate “Downstream Contracts” with New Mexico and Texas to supply water captured and managed by the Bureau of Reclamation via the federal Rio Grande Project irrigation system.^[8] To further address interstate water allocation, Colorado, New Mexico, and Texas entered into a temporary agreement called the Rio Grande Compact of 1929.^[9] This interstate agreement was negotiated based on the compact clause of the U.S. Constitution, with approval from the federal government.^[10] Nine years later the states entered the more permanent Rio Grande Compact of 1938, which remains in effect today.^[11]

The Rio Grande is a vital resource to farmers living in the Chihuahuan Desert, spanning Texas and New Mexico, where rainwater is limited.^[12] The Compact’s water obligations significantly impact residents of both states.^[13] Under the Rio Grande Compact, Colorado must deliver a sufficient quantity of water to New Mexico, which must then enough to the Elephant Butte Reservoir to feed the Rio Grande as it flows into Texas.^[14] The required deliveries are “calculated on a sliding scale based on the river flow” as stated in the compact.^[15] However, the Compact does not explicitly define how to divide waters “between western Texas and southern New Mexico after New Mexico has met its delivery obligation at Elephant Butte Reservoir.”^[16] Within just 20 years of the Compact’s passage, drought and groundwater pumping in New Mexico reduced the water flowing across the New Mexico-Texas border.^[17] For much of the last half-century, the two states have been at odds over their fair share of the Rio Grande’s waters.^[18]

3. Texas v. New Mexico and Colorado – An Overview

In 2013, Texas sued New Mexico for allegedly violating the Rio Grande Compact.^[19]  Texas alleged that New Mexico permitted local entities to pump excessive groundwater, intercepting water from traveling to Texas via the Rio Grande.^[20] Texas claimed that such groundwater pumping not only violated the Compact but also infringed on its legal right to groundwater in the Basin that is hydrologically connected to the river.^[21] Texas sought “declaratory, injunctive, and monetary relief,” including an injunction commanding New Mexico to prevent further groundwater pumping.^[22] In response, New Mexico contended that Compact’s language only obligates it to deliver sufficient water to Elephant Butte, which it asserted it has done.^[23] New Mexico refuted the argument that groundwater pumping that depletes water below Elephant Butte is a violation of the Compact.^[24]

In 2014, the federal government filed its own complaint against New Mexico and sought to intervene in Texas’s lawsuit.^[25]  Like Texas, the federal government challenged New Mexico’s groundwater pumping, arguing that it interfered with the efficiency of the federal Rio Grande Project.^[26]  Justice Gorsuch described these claims as “allegations that parallel Texas’s’” in his 2018 Supreme Court majority opinion.^[27] The Court held that the United States was permitted to intervene in this case due to its “distinctively federal interests,” but noted that the United States is not automatically entitled to intervene in every dispute stemming from an interstate compact under the Compact Clause.^[28] The Court intervention here because: 1) “the [Rio Grande] Compact is inextricably intertwined with the Rio Grande Project and the Downstream Contracts,” 2) the United States plays an “integral role” in the Compact’s operation, 3) the Compact could jeopardize the federal government’s treaty obligations, and 4) the United States sought substantially the same relief as Texas.^[29] In sum, the Court permitted the United States to proceed because the Compact is intertwined with federal projects and treaty obligations, and because the federal government’s claims aligned with those of Texas.

4. The 2024 SCOTUS decision in Texas v. New Mexico to reject the States’ proposed consent decree

As the litigation advanced for around a decade, the federal government’s claims and requested relief against New Mexico remained somewhat consistent, but Texas’ position changed.^[30] Rather than continuing to pursue litigation, Texas and New Mexico negotiated a “consent decree” that “updated the method used to calculate the amount of water New Mexico had to deliver downstream,” using a new system of calculations known as the EEPI method.^[31] The proposed consent decree would have practically replaced the previous terms of the Compact as the states agreed that being in compliance with the consent decree would be sufficient for the states to also be in compliance with the Compact.^[32] The consent decree would “incorporate New Mexico’s groundwater pumping into the Compact” through adopting the new EEPI method to apportion Rio Grande water.^[33]

However, the U.S. government objected to this proposed consent decree.^[34] The federal government claimed that the states’ proposed consent decree “would dispose of its Compact claims without it consent.”^[35]  The U.S. government maintained that it still had valid claims against New Mexico for violating the Rio Grande Compact, regardless of Texas’s choice to pursue a consent decree. The Court was then forced to address whether the federal government could still pursue the same claims in the same litigation, even though no other signatory state to the Compact maintained a claim.^[36] A narrow 5-4 majority of the Court held that the United States still had its own valid individual claims under the Compact in this case, and that the proposed decree would unlawfully dispense with them.^[37]

The analysis determining whether the United States still had valid Compact claims despite Texas’s desire to settle mostly followed the same reasoning in the 2018 opinion which determined that the United States was permitted to intervene in the litigation. Writing for the majority, Justice Jackson states that “the same considerations that convinced [the Court] to let the [United States] intervene” in the lawsuit led the Court “to conclude that the [United States] still has valid Compact claims[].”^[38] Interstate compacts are mainly agreements between the participating States; however, the federal government can engage in compact suits to protect “distinctively federal interests” tied to that compact.^[39] With the Rio Grande Compact, the United States still has the same commitments in ensuring the Rio Grande Project’s efficiency, the execution of the Downstream Contracts, and the fulfillment of the treaty with Mexico. The distinct federal interests involved are: “(1) the [U.S.’s] duties under the Project and the Downstream Contracts, (2) the [U.S.’s] integral role in the Compact’s toperation, and (3) the [U.S.’s] treaty obligations.^[40]  Although the United States had parallel interests to Texas and brought a similar claim, these interests are “distinctively federal.”^[41] Regardless of Texas’s position in the litigation, the Court determined that these interests remained with the federal government.

Moreover, the Court held that as the United States government had valid compact claims and had not agreed to the proposed consent decree, the consent decree would impermissibly dispose of those valid claims.^[42] Even though U.S. and Texas interests have diverged, Texas is not permitted to settle with New Mexico via a consent decree if it extinguishes the federal government’s claims without the federal government’s consent.^[43] The dissent authored by Justice Gorsuch, who wrote the previous 2018 opinion in this case, expresses concern at this decision. Gorsuch urges that when a consent decree consistent with the Compact has been accepted by the states initially embroiled in the litigation, the federal government’s claims should be extinguished here, and the United States should pursue “any valid independent claims it may have in the lower courts.”^[44] Still, despite Gorsuch’s dissent, the majority decision sides with the federal government and directs this ten-year-old lawsuit to continue.

5. The impact of the 2024 Texas v. New Mexico SCOTUS decision

While the most direct impact of the Supreme Court decision in 2024 is that the litigation between Texas and New Mexico will persist, the opinion may provide a broad and powerful example of the balance of power in interstate compact disputes.  The dissent worries that the Court gives the federal government license to undo inter-state efforts to resolve water disputes whenever the United States has sufficient federal interests.^[45]  Gorsuch writes that the majority decision disregards the long practice of federal deference to state water law in the management of federal reclamation projects.^[46] The impact of this decision shifts the delicate balance between state and federal governments in the management of interstate water resources towards more federal authority and input.  It may therefore be harder to “secure the kind of cooperation between federal and state authorities” in future water rights management issues.^[47]

Emily Rogers is the managing partner at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of water and environmental law. She has extensive experience representing cities, river authorities, and water districts in matters involving surface and groundwater rights, water and wastewater utility matters, and industrial and municipal solid waste disposal cases. Emily earned her B.A. in History from the University of Texas, her M.A. in History from Southwest Texas State University, and her J.D. from the University of Houston Law Center.

Kimberly Kelley is an attorney at Bickerstaff Heath Delgado Acosta LLP and practices in the areas of municipal, open government, water, and environmental law. She earned her undergraduate degree from Texas A&M University and graduated Texas Tech University

[1] See Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 30 (2024)

[2]  Id. at 31.

[3] Id.

[4] Id. at 33.

[5] Tylynn R. Payne, In (Not So) Deep Water: The Texas-New Mexico Water War and the Unworkable Provisions of the Rio Grande Compact, 52 Tex. Tech L. Rev. 669, 670 (2020).

[6] Douglas R. Littlefield, The Rio Grande Compact of 1929: A Truce in an Interstate River War, 60.4 Pacific Hist. Rev. 497, 497 (1991).

[7]Id.

[8] Frances Williamson, Water and Federalism in Texas v. New Mexico, 2024 Harv. J.L. & Pub. Pol’y  28, 2 (2024).

[9] William A. Paddock, The Rio Grande Compact of 1938, 5 U. Denv. Water L. Rev. 1, 3 (2001).

[10]  Littlefield, supra note 6 at 499, 501, and 512–15.

[11] Id. at 514–15; Colo. Rev. Stat. Ann. § 37-66-101

[12] Payne, supra note 5, at 670–72.

[13] Id.

[14] Williamson, supra note 1, at 30.

[15] Priscilla M. Hubenak and Kellie E. Billings-Ray, Essentials of Texas Water Resources §14.11 (8th ed.  2024).

[16] Id.

[17] Williamson, supra note 1, at 30.

[18] Payne, supra note 5, at 682.

[19]  Texas v. New Mexico, 602 U.S. 943, 947 (2024).

[20] Id. at 951.

[21] Payne, supra note 5, at 683.

[22] Texas, 602 U.S. at 951.

[23] Payne, supra note 5, at 684.

[24] Id.

[25] Texas, 602 U.S. at 952.

[26] Id. at 951–52.

[27] Texas v. New Mexico, 583 U.S. 407, 411 (2018).

[28] Id. at 412–13 (quoting Maryland v. Louisiana, 451 U.S. 725, 724 n.21 (1981).

[29] Id. at 413–15

[30] Williamson, supra note 1, at 3.

[31] Texas, 602 U.S. at 952,

[32] Id.

[33]  Id. at 962 (emphasis omitted).

[34] Williamson, supra note 1, at 3.

[35] Id.

[36] Id. at 955.

[37] Texas, 602 U.S. 943 at 954.

[38] Id.

[39] Id.

[40] Id. at 959

[41]  Id. (emphasis omitted).

[42] Williamson, supra note 1, at 3.

[43] Texas, 602 U.S. at 964

[44] Id. at 979 (Gorsuch, J., dissenting).

[45] Williamson, supra note 1, at 1.

[46] Texas, 602 U.S. at 983 (Gorsuch, J., dissenting).

[47] Id. at 990.