With little doubt, water is our most precious natural resource. Without it, the ground would dry up, plants could not grow, and life as we know it on Earth would cease to exist. So it stands to reason that when it comes to water, it is easily our most contentious resource, often dividing neighbor from neighbor, states from neighboring states, and nations from nations.
Poet Jan Erik Void put it this way: “If you gave me several million years, there would be nothing that did not grow in beauty if it were surrounded by water.”
For the residents, and especially farmers and ranchers of Texas and New Mexico, the U.S. Supreme Court is scheduled to hear opening oral arguments Jan. 8 from attorneys representing both states over management of one of North America’s longest rivers, the Rio Grande.
On the issue of water rights, officials from both states have agreed, the stakes are high as this controversial legal battle enters the judicial and hallowed halls of the Nation’s highest court, a legal disagreement that has been years in the making and has captured the attention of an entire nation because it’s legal outcome could affect every river in every state in the years ahead.
THE LEGAL ISSUE
In 1938, the states of Colorado, Texas and New Mexico entered into the Rio Grande Compact to allocate water from the Rio Grande to these states. Under terms of the Compact, New Mexico is obligated to deliver water from Elephant Butte Reservoir to users in both south-central New Mexico and Texas.
During the drought of the 1950s, the Rio Grande’s surface water supply all but dried up. Farmers on both sides of the state line had to turn to groundwater to keep their crops alive. In a Reclamation Annual report for 1954, the Bureau reported that storage “was so limited that even the first irrigation had to be made with a combination of water pumped from farm wells and water from the storage supply.”
As time passed and water levels in the river and reservoirs returned, farms expanded their operations, especially in south central New Mexico where New Mexico green chiles had become popular, not only by native New Mexicans but to consumers in adjoining states. Following the chile boom, onion producers cashed in on the fertile basin area to make their mark in agricultural production. Also, commercial pecan growers began developing highly successful orchards and the requirement for irrigation water grew rapidly, taxing water supplied by the river. Similar farm expansion was occurring across the border in Texas, and it became apparent that better water management would be required to meet the growing demand.
By 2002, water use by commercial farms and ranches and communities on both sides of the state line had increased rapidly, as did the total number of water wells. Before long, federal officials were charged with changing water allocations that led to lawsuits in district courts in New Mexico and Texas. Though a federal Reclamation agreement was tentatively reached between irrigation districts in both states, officials at the larger state government level in New Mexico and Texas had not agreed, relying on the original agreement reached between the states in 1938. Lines in the sand had been drawn, and the water problems of the 21st century were yet to come.
By the time the serious drought of 2011 arrived, saber rattling had reached a crescendo. Farmers in New Mexico and Texas once again were forced to rely on groundwater wells, further exasperating the problem. Lower court challenges became the norm, and that same year the New Mexico Attorney General filed suit in New Mexico federal district court, seeking to invalidate the Reclamation Operating Agreement and to obtain an injunction against its use. New Mexico believed that Project operations under the agreement were grossly unfair to farmers within their state for several reasons.
Heavy use taxed the water table so drastically that New Mexico was unable to deliver water to Texas according to the 1938 agreement in spite of conservation efforts, and water troubles between the two states, already a topic of contention and lower court battles, reached a boiling point.
In 2013, Texas escalated legal action by filing a federal lawsuit with the highest federal court to force New Mexico farmers to “stop taxing the watershed” by groundwater use and to force New Mexico to deliver the contractual total of water according to earlier agreements.
The result of such a suit creates an impossible conundrum for New Mexico. If the requirement to deliver water according to the original agreement is upheld by the Supreme Court, New Mexico communities and farmers relying on water would have little or no water to meet their local needs. Since a water agreement exists between the U.S. and Mexico over the waters collected in Elephant Butte Reservoir are divided between the two countries, it puts the federal agency charged with allocating water from the river in an impossible position, namely, not enough water to satisfy the total demand.
Because that international water agreement is secured by a treaty with Mexico, if the Supreme Court rules in favor of Texas, delivering enough water to not only satisfy the annual allocation promised but enough to pay back shortfalls undelivered to Texas in past years, New Mexico would be left with virtually no water for their own use.
In such a case, the court could force New Mexico to pay Texas for the water shortfalls of years past, a financial burden New Mexico officials say is impossible to meet. To amplify the problem, irrigation districts in New Mexico were not in favor of elevating the legal fight between the two states to the Supreme Court level because losing such a battle would be devastating. But the New Mexico’s Attorney General’s office proceeded in spite of the warnings.
New Mexico officials have argued in court documents that it is meeting delivery obligations to Texas, an argument lower courts have questioned.
As recent as last week, water policy experts, lawyers and farmers in New Mexico were feverishly working behind the scenes to craft possible solutions that could help end a lengthy battle with Texas over management of the Rio Grande. The Associated Press reported what those solutions might look like are under wraps because of a court-issued confidentiality order.
The report went on to say an attorney representing the irrigation district that serves farmers from Elephant Butte south to the U.S.-Mexico border said groundwater will continue to be relied upon into the future to protect everyone’s access. But the spokesman suggested parties are looking at managing the aquifer in ways New Mexico has never seen before, and that might include more flexibility and policies aimed at avoiding the permanent fallowing of farmland.
The New Mexico legislature has dedicated $1.5 million for next year’s Supreme Court battle, but Texas officials have dedicated more than $5 million already to fight the case in court, and they have hinted they will invest more if required to bring the case to a satisfactory conclusion.
Short of an eleventh hour solution all parties can agree to, however, the case will proceed to Washington in early January.