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Rio Grande settlement proposal is in federal judge’s hand

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Rio Grande settlement proposal is in federal judge’s hand

Feb 07, 2023 | 6:12 am ET
By Danielle Prokop
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Rio Grande settlement proposal is in federal judge’s hand
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The cracked riverbed lays exposed in El Paso, Texas, on May 23, 2022. The riverbed below Elephant Butte Reservoir is often empty for most of the year, as the river only runs during irrigation season, which is shortened by drought. (Photo by Diana Cervantes for Source NM)

A proposed deal that Texas and New Mexico say will bring an end to the states’ years-long, multi-million dollar dispute over Rio Grande water had its day in court Monday, facing objections from two irrigation districts and the federal government. 

And now, everyone waits. 

The next step lies in the hands of a federal judge. 8th Circuit Court of Appeals Judge Michael Melloy is overseeing the case as it winds its way through the United States Supreme Court. Melloy heard arguments from all sides during a seven-hour long hearing in Cedar Rapids, Iowa. 

He was unsure when the ruling on the proposed settlement would come down, telling attorneys “It’s not going to be next week, or probably even next month.”

Crisis on the Rio Grande is a multi-part series that travels along the river from Colorado through New Mexico and into Texas.

Read more: Moral questions on a standard San Luis Valley farm

Colorado, Texas and New Mexico jointly presented their draft agreement to support the deal. Attorneys argued that any remaining issues between New Mexico, the federal government and irrigation districts, are “intrastate” and should be resolved in lower courts. 

“We think that the consent decree was a very significant accomplishment,” said Jeff Wechsler, lead attorney for New Mexico. “It will set the division of water between the states going forward, it will help provide clarity and stability.”

The prospective decree requires the Supreme Court’s approval to go into effect. The states asked Melloy to recommend the high court adopt the prospective plan.

Attorneys said the agreement establishes that New Mexico would receive 57% of the Rio Grande water while Texas would receive 43%, and that groundwater pumping would be factored into those formulas, which are based off of a period of drought from 1951-1978.

The water share for Texas would be measured on a point at the state line located at the El Paso Gage. Chad Wallace, the attorney for Colorado, said this would ensure that the water is received by Texas after New Mexico delivers the water to Elephant Butte Reservoir, about 100 miles upstream.

Finally, it allows flexible conditions for New Mexico and Texas to handle disputes on under- or over- deliveries of the proposed water split. If New Mexico fails to meet delivery requirements for three consecutive years, the draft agreement requires a New Mexico irrigation district to transfer water to Texas.

Because that transfer process would require using federally managed dams, canals and ditches — which are also owned by local irrigation districts — this was a heated point of contention at the hearing. 

Melloy said the crux of the case will determine if the United States has the right to block the proposal, because the feds operate pathways that move the water from irrigation districts in Southern New Mexico and into far West Texas.

Lee Leininger, the lead attorney for the United States, said the federal government’s concerns cannot be overruled, and that the deal imposes new burdens.

Officially called Original No. 141 Texas v. New Mexico and Colorado, the lawsuit is a culmination of decades of fighting over Rio Grande water below Elephant Butte Reservoir in New Mexico. 

In a 2014 complaint before the U.S. Supreme Court, Texas alleged New Mexico shorted the state its share of Rio Grande water by thousands of acre-feet. This would violate the 83-year-old agreement to share the river’s water between Colorado, New Mexico and Texas, called the Rio Grande Compact. The Compact mentions the Rio Grande Project, the network of dams, reservoirs and canals constructed to deliver water to irrigation districts and Mexico. 

The spark for this lawsuit flared up after the severe droughts of the early 2000s. Two irrigation districts, Elephant Butte Irrigation District in Southern New Mexico and El Paso County Water Improvement District No. 1 far west Texas, filed lawsuits against the U.S. Bureau of Reclamation. The federal government and the districts settled out of court, creating a document called the 2008 Operating Agreement, which changed how the districts would manage water in drought. 

In 2011, New Mexico Attorney General Gary King, sued the federal government in state district court, alleging that the agreement gave too much water to Texas. Texas then took their complaint to the Supreme Court. The federal government requested to join the lawsuit, siding with Texas that New Mexico’s pumping depleted Rio Grande water. Federal attorneys alleged that New Mexico pumping threatened water deliveries to irrigation districts and Mexico. In a 2018 opinion, the Supreme Court granted party status to the federal government. 

The first part of the trial started in October 2021. Settlement negotiations started in early 2022 and continued for months. With no agreement reached, Melloy ordered in September that a second part of the trial would start in January 2023. 

Just a month later, attorneys for New Mexico, Texas and Colorado dropped a bombshell, saying they came to an agreement on a prospective decree. The federal government objected, requesting Melloy to toss out the agreement. 

He said the draft agreement is “vague, indefinite and incomplete” for how New Mexico would curb pumping below Elephant Butte.

“The states should not be allowed to settle this case on the backs of the irrigation districts,” Leininger said. 

Phil King, an engineering consultant for Elephant Butte Irrigation District, wrote in sworn testimony that the irrigation districts may not survive years of transfers under the new agreement

“The raiding of (Elephant Butte Irrigation District) surface water allocation by New Mexico, combined with reduced surface water due to climate change and drought, could cause (Elephant Butte) to fail,” King wrote. 

Melloy asked Leininger several times if the United State’s main concern was that the federal government did not trust the New Mexico plan to reduce groundwater pumping.

“You want New Mexico to do more to guarantee that they will do something with whether it’s pumping or some other remedies within the state of New Mexico to address what you believe are problems,” Melloy noticed Leninger nodding and asked if that meant he agreed.

The attorney agreed, responding “Ultimately, that’s the resolution.”

In his rebuttal, Wechsler told the court New Mexico would take steps to curb unchecked groundwater pumping in the Lower Rio Grande. He said the New Mexico Legislature is working to hire additional state water experts for the region, and fund programs to reduce water use. 

“There’s a very significant appropriation being sought for things like fallowing (croplands) and depletion reduction programs, those things are already afoot,” Wechsler said. 

Groups who are not parties in the litigation but are involved in the settlement discussions and hold significant water rights, are split in supporting and opposing the prospective deal. 

Attorneys representing the City of Las Cruces, New Mexico State University, the Public Service Company of New Mexico, a rural utility providing water to Sunland Park and several farmers groups urged Melloy to approve the deal. 

The federal government should “stop stalling” the state process for determining water rights, and raise any concerns there, said Tessa Davidson, who represented both Southern Rio Grande Diversified Crop Farmers Association and the New Mexico Pecan Growers. She spoke in support of the proposed agreement.

Maria O’Brien, the attorney for El Paso County Water Improvement District, questioned the legality of the draft in her statements, requesting the judge throw it out. 

“It’s illegal on its face because it rewrites a compact without congressional approval,” she said.

In a departure from other attorney’s presentations, Samantha Barncastle, the attorney for Elephant Butte Irrigation District recited a three-minute long poem, a “eulogy” for the Rio Grande Project, she said.

“Now the states’ big idea, you see, is to take water from (Elephant Butte) to make Texas quite happy, but it’s really quite crappy,” her poem read.

She concluded by imploring Melloy to send all of the parties back to the negotiation table. 

“Luckily, this isn’t a real funeral and you don’t have to go down in history as the judge who had the chance to save the Rio Grande Project and didn’t,” Barncastle said. “Don’t go for the easy solution or the quick fix, order us back to settlement.” 

Despite the requests from both irrigation districts, the judge declined to order settlement talks. Melloy only encouraged the official mediator to reach out to the fractured parties, and suggested they talk informally as he contemplates a decision.

“I would think it would be in everybody’s best interest to present a united front to the Supreme Court on a proposed settlement,” Melloy said.