Feds object to judge’s nod to settle Rio Grande SCOTUS case

The federal government will fight the 11th hour settlement that came down last year, and will stretch into 2024 at least.

By: - October 18, 2023 4:30 am

A small stream flows alongside the Rio Grande at Isleta Blvd. and Interstate 25 on Sept. 7, 2023. (Photo by Anna Padilla for Source New Mexico)

Whether the water is low or high, the Supreme Court fight over Rio Grande water stretches on.

The latest iteration of the legal fights that span decades, is the Texas claim before the U.S. Supreme Court that New Mexico groundwater pumping below Elephant Butte Reservoir shorts the downstream state its rights to the river’s water.

This would be a violation of the 1938 Rio Grande Compact, which splits the water between Colorado, New Mexico and Texas.

Possible deal to end Rio Grande SCOTUS case becomes public

A recent settlement proposal between the three states was accepted by a federal judge overseeing the case as special master in July.

Not everyone is on board.

The federal government officially laid out its objections to the special master’s recommendation that the U.S. Supreme Court adopt a compromise to end the lawsuit over the Rio Grande’s water between Texas and New Mexico.

In a 96-page document, Solicitor General Elizabeth Prelogar and other Department of Justice attorneys lay out three legal arguments arguing why the high court should reject the deal.

First and foremost, they argue, settlement is impossible without the federal government’s consent.

A settlement requires consent from each party, and the agreement adds a “host of obligations,” on the federal operation of the Rio Grande Project, which delivers water in a series of canals and ditches to two regional irrigation districts and to Mexico.

Finally, the federal government argues the settlement violates the compact by moving the location of water deliveries, and fails to recognize a “1938 baseline,” of minimal groundwater pumping.

The proposed settlement uses a mathematical model to determine splitting the water, based on drought conditions from 1951 until 1972, when drought and development pushed pumping to increase significantly. Much of the region’s agriculture and its entire residential use is pumped from groundwater.

The federal government argues using the model violates the Compact.

“But the baseline on which the Compact was predicated was the baseline that existed when the Compact was signed — not decades later, after groundwater pumping in New Mexico had greatly increased and drawn water away from the Project,” the federal government wrote.

The region is already expecting the state government to curb pumping – with the New Mexico Office of the State Engineer announcing the need to cut 17,000 acre feet to meet the settlement using the proposed model.

TheElephant Butte Irrigation District and El Paso County Water Improvement District No. 1 supported the federal government’s position in legal briefs of their own.

They agreed that the state compacts have no authority over the operation of the Rio Grande Project.

The Supreme Court has accepted the federal government’s arguments over a special master’s recommendation in this case before. In 2018, justices unanimously admitted the Department of Justice as a party into the case.

Additional responses and replies from the party will be collected into 2024, and there’s no expectation of scheduling a hearing with the Supreme Court until then.

Correction: The article has been updated to correctly reflect how many acre-feet the New Mexico Office of the State Engineer expects to cut. 

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Danielle Prokop
Danielle Prokop

Danielle Prokop covers the environment and local government in Southern New Mexico for Source NM. Her coverage has delved into climate crisis on the Rio Grande, water litigation and health impacts from pollution. She is based in Las Cruces, New Mexico.