Water rulings a blow to New Mexico

LAS CRUCES - The nation’s highest court will likely have to settle a dispute between Texas and New Mexico over management of water from the Rio Grande.

Officials in both states have been waiting for nearly a year for a recommendation on the handling of the case that could dramatically curb groundwater pumping in some of New Mexico’s most fertile valleys and force the state to pay as much as $1 billion in damages.

Now, a special master assigned by the U.S. Supreme Court is recommending the rejection of a motion by New Mexico to dismiss the case, meaning it can move forward as long as the high court agrees.

Texas sued in 2013, claiming New Mexico failed to deliver water as required under a decades-old compact involving the river that serves more than 6 million people in several major cities and irrigates more than 3,100 square miles of farmland in the U.S. and Mexico. Groundwater wells drilled over the decades in Doña Ana County have been a focal point of Texas' concerns.

Not surprised

New Mexico Sen. Joe Cervantes, whose district includes the border region, said the special master’s recommendation was not a surprise, and that he and a small group of lawmakers have been warning about potentially dire outcomes if Texas gains the upper hand in the legal battle.

Cervantes said the recommendation to let the case proceed seems to support demands by Texas for more water from the Rio Grande.

“A great deal more water delivered to Texas to make up for historic shortfalls seems to be a clear direction he’s going,” Cervantes said of the special master. “And since water won’t make up for all of the shortfalls, we’re looking at the risk of large financial damages.”

The parties have a chance to respond to the special master before the Supreme Court weighs in on what is the latest legal battle over water to pit states against one another. Connecticut and Massachusetts, Nebraska and Wyoming, and New York and New Jersey all have been embroiled in water disputes over the decades.

The federal government has weighed in on the New Mexico-Texas case, arguing that pumping north of the border is tapping a shallow aquifer that would otherwise drain back into the Rio Grande and flow to Texas and eventually to Mexico.

Officials with the Elephant Butte Irrigation District have long warned that the Texas had an upper hand in the lawsuit, which the district blames on former New Mexico Attorney General Gary King's decision to challenge a 2008 water-sharing agreement that was reached between El Paso and Doña Ana County irrigators.

More than a decade ago, officials in Texas made claims about water shortages under the compact. Irrigation districts that serve farmers on both sides of the border reached the 2008 operating agreement with the federal government that shared the burdens of drought, while ensuring everyone received water allotments.

Local water managers say the agreement worked even during the driest of times, but King insisted it was more beneficial to Texas and sued over his concerns, setting the stage for Texas to take its complaints to the U.S. Supreme Court.

Current Attorney General Hector Balderas said New Mexico will continue to work diligently to protect state residents and their water supply.

Requests denied

EBID and its counterpart in El Paso had asked the Supreme Court's representative, known as a special master, to be granted standing equal to that of the states involved in the case. However, the special master's rulings, which are in draft form, denied those requests. The districts were given the right to continue on as so-called friends of the court. That will allow them to continue giving input, experts said.

"Obviously, we're disappointed we weren't granted intervention," said EBID board member and farmer Robert Faubion. "I think in a case like this, it's critically important that the irrigation districts play a role."

New Mexico argues that its only duty under the compact is to deliver water to Elephant Butte Reservoir for storage for downstream users. It also argues that state law, not the compact, governs the distributions of water released from Elephant Butte within state boundaries.

Officials with the Elephant Butte Irrigation District — responsible for funneling Rio Grande Project water to farmers and other users — say the special master’s report implies that the water is protected by the compact and federal law.

In his report, the special master suggested New Mexico has a “stunted interpretation” of the compact and that the state may not divert or intercept water it’s required to deliver downstream.

The Rio Grande stretches from southern Colorado, through New Mexico and Texas and into Mexico. In recent years, stretches of the river have gone dry in New Mexico and flows often don’t reach the Gulf of Mexico.

Sun-News reporter Diana Alba Soular contributed to this report. She may be reached at 575-541-5443, dalba@lcsun-news.com or @AlbaSoular on Twitter.