Rio Grande High Court Ruling Could Discourage State Water Deals

The outcome of a US Supreme Court case over the federal government’s involvement in a dispute over Rio Grande water allocation may discourage states from striking interstate water compacts in the future, legal experts say.

The Supreme Court last week agreed to resolve the original jurisdiction case, Texas v. New Mexico, which has been pending at the court for a decade. Oral arguments are scheduled for March 20.

Texas originally alleged that New Mexico was taking too much water under the Rio Grande Compact. The states agreed to settle, but after the court in 2018 allowed the US to intervene, the federal government objected because it didn’t consent to the settlement.

“How the Court decides the principal issue in this case—whether the USA, a non-party to the Rio Grande Compact, can block a settlement among the compacting states—will affect not only existing interstate water compacts but also the likelihood of other states pursuing new compacts,” Burke Griggs, a law professor at Washburn University School of Law in Topeka, Kan., said in an email.

If the Supreme Court allows the federal government to litigate a water compact against the wishes of the states, the justices will be allowing the US to significantly interfere in interstate water relations, said Griggs, who was among 10 water law professors who filed an amicus brief in the case.

The federal government is seeking a strong role in the Rio Grande Compact because the Bureau of Reclamation manages a large New Mexico water storage and irrigation project on the river—similar to federal projects on the Klamath River in California and Oregon, the Arkansas River in Colorado and Kansas, and the Republican River in Kansas, Colorado, and Nebraska, Griggs said.

“The court needs to tell the USA that it can’t just pick and choose how it wants to participate in a given compact dispute,” he said. “There has to be consistency.”

If the court allows the US to prolong the litigation, “then it will have allowed the USA to hijack what is fundamentally a dispute between the states,” Griggs said. “The USA is not a party to the compact.”

Potential Roadmap

A ruling in favor of the federal government could strike fear in states that the federal government will wield too much power to influence state negotiations, said Sam Kalen, a law professor at the University of Wyoming who also signed the amicus brief.

The states want to ensure that the federal government doesn’t present too much of a roadblock in modernizing interstate water compacts to account for climate change and tribal water rights, Kalen said.

“The US can deploy vastly superior offensive resources” than the state can to litigate interstate water disputes, Kalen said. “The US can then weigh in and exercise too much power.”

The case also has the potential to provide a roadmap for states that have already struck interstate water compacts to update them to account for climate change, population growth, endangered species and other issues, said Robin Kundis Craig, a water law professor at the University of Southern California who also signed the amicus brief.

“Most compacts are multiple decades old and lack mechanisms to adjust the initial allocations in light of evolving conditions,” Craig said.

“If the court makes clear that these compacts need to comply with modern environmental law, such as the Endangered Species Act and the Clean Water Act, the case will have gone a long way towards integrating interstate water law with climate change adaptation and modern environmental requirements,” she said.

The case is not expected to have a significant effect on the Colorado River Compact, one of the West’s most consequential interstate water allocation agreements, because the federal government is already heavily involved in it.

The level of direct federal power involved in the Colorado River Compact is unusual for an interstate compact, Griggs said.

Executive branch buy-in is essential to the Colorado River Compact, said John Leshy, former Interior Department solicitor in the Clinton administration.

“There’s too much at stake because of the river’s geographic reach and importance,” Leshy said.

Water officials in Arizona and California, two Colorado River Compact states that have long conflicted over water use, declined to comment. The Colorado attorney general’s office and the Justice Department also declined to comment. Texas and New Mexico didn’t respond to requests for comment.

“The federal government does not have nearly the same type of operational authority over the Rio Grande that it does over the Colorado,” Griggs said. “It’s not even close.”

Federal Objections

The Rio Grande Compact was approved by Congress in 1939 and apportions water in the river between its headwaters in Colorado’s Rocky Mountains and Fort Quitman, Texas, about 80 miles southeast of El Paso.

The settlement among Texas, New Mexico, and Colorado, in the form of a consent decree, integrates into the compact the effects of groundwater pumping and climate change on reduced flows in the Rio Grande. It requires a more accurate accounting of water delivery and compact administration among the states and resolves ambiguities in Texas’ water allocation from the river.

Texas filed its original jurisdiction case against New Mexico in 2014 for a compact violation, and the Supreme Court later allowed the federal government to intervene to pursue its own claims against New Mexico. A special master oversaw the settlement among the states and supports it.

The US said in a court filing that it objects because its claims against New Mexico have never been adjudicated and the federal government has not agreed to settle them. The Justice Department is asking the Supreme Court to deny the states’ motion in part because the states moved to enter into the consent decree without US consent.

However, the special master said the federal government’s consent wasn’t necessary, as Texas and the US were no longer aligned in their claims.

The US alleges that the consent decree would violate the Rio Grande Compact in part because it would measure water deliveries to Texas at the state line rather than at an upstream reservoir in New Mexico.

The federal government also objects because it alleges that the decree allows the states to “dictate” water apportionment without regard to the federal government’s interests downstream and approves more groundwater pumping than existed when the compact was struck in 1938.

However, when Congress approved the compact a year later, it was clear that the US was not a party to the compact, Griggs said.

“So the court shouldn’t recognize a role in the Compact that Congress has not clearly authorized,” he said. “The court can’t rewrite compacts to include a federal representative.”

The case is Texas v. New Mexico, U.S., No. 22O141, 1/22/24.