June 28, 2018

Texas-New Mexico water fight could be impacted by SCOTUS ruling

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Laura Paskus

The Rio Grande in Mesilla, N.M., April 2018

A U.S. Supreme Court decision on Wednesday in a water fight between Florida and Georgia could have implications for a similar legal battle between Texas and New Mexico over the Rio Grande water supply, legal experts said.

Five years ago, Texas sued New Mexico, asserting that New Mexico is in violation of the Rio Grande Compact, an interstate agreement that has governed water allocations between the two states and Colorado for 80 years. New Mexican farmers pumping the river’s groundwater cause river levels in Texas to drop, depriving Texans of the water they’re obligated to, the state argued.

Over 1,000 miles away along the Florida-Georgia border, the Sunshine State is accusing its neighbor of taking more than its fair share of water from the Apalachiola-Chattahoochee-Flint River Basin.

In Wednesday’s decision, the high court remanded the case to the court-appointed special master responsible for issuing recommendations to the court. The special master ruled that while Georgia’s overuse of water might have caused ecological and economical harm, Florida’s case should be dismissed for failure to prove a possible resolution to the problem.

But in a 5-4 decision, the court decided Wednesday that Florida only needs to prove harm, lowering the burden of proof for states locked in similar water battles with upstream neighbors. Now, states have more flexibility when it comes to providing evidence on how to remedy solutions. If the court lets this ruling set the standard for proving harm in water rights cases, this could bode well for Texas.

Like Florida v. Georgia, Texas’ case also awaits a preliminary ruling from a special master.

“The decision issued today is the Supreme Court’s most recent opinion on how to take all of the laws associated with equitable apportionment and put it into one place,” said Lara Fowler, an environmental attorney and professor at Pennsylvania State University. “Today’s case will be informative not only for the Texas case, but for future cases.”

Florida and Georgia’s water spat is slightly different from the fight in the West — unlike Texas and New Mexico, the states’ water use is not divvied up by a compact. And Florida v. Georgia doesn’t involve the connection between surface water and groundwater, as Texas’ argument does.

But both cases do dive into how the court establishes and reevaluates equitable apportionment of water use between states, Fowler said. While Texas v. New Mexico focuses on the interpretation of a compact, at the core of it all is whether that compact divides water fairly.
And today’s ruling seems to signal a more active involvement from the Supreme Court in straightening out water battles, said Todd Votteler, president of Collaborative Water Resolution LLC.

“Sometimes, I think these issues gather a lot more attention than some of the water issues within individual states themselves,” Votteler said.

Votteler and Fowler envision both cases ending in some form of mediation, although that’s easier said than done, and could take years as the cases sit in court. If the states don’t reach mutual agreement, then it’s on the high court to make a decision.

“The states are fiercely territorial,” Fowler said. “They really don’t want another state telling them what to do. The courts are a very blunt instrument for making decisions about what are really complicated issues. They’re used to doing that, but it doesn’t mean states will necessarily like the outcome.”

“Texas-New Mexico water fight could be impacted by SCOTUS ruling” was first published at https://www.texastribune.org/2018/06/27/texas-water-fight-new-mexico-could-be-impacted-scotus-decision/ by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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