July 6, 2023

Special master supports Texas v. New Mexico agreement

Laura Paskus

Downstream of Elephant Butte Dam, water issues get even trickier.

A special master appointed by the U.S. Supreme Court says that an agreement reached by Texas, Colorado and New Mexico regarding Rio Grande water is permissible under the interstate compact. Furthermore, Judge Michael Melloy, the court-appointed special master, found that the United States, which has opposed the agreement, should not be able to block the settlement agreement.

Melloy filed his third interim report with the U.S. Supreme Court this week.

In the filing, Melloy outlines the history of the Rio Grande Compact and questions that have arisen since the states entered into the compact in the 1930s.

He writes that the proposed consent decree clarifies how much water Texas should receive and how much New Mexico is entitled to use downstream of Elephant Butte Reservoir, but it does not purport to answer all the questions surrounding Compact rights, duties, and compliance.

One important part of the agreement, according to Melloy, is that it provides “a strong, simple and easily pulled lever” that can be employed if New Mexico uses too much water that should be going to Texas or if New Mexico fails to reduce the impacts that groundwater pumping has had on the Rio Grande. Should this type of scenario arise, some of the Elephant Butte Irrigation District’s rights will be temporarily transferred to an irrigation district in Texas. 

“The United States objects to the Consent Decree in part because it neither answers the several other questions identified above nor mandates specific water capture or use limitations within New Mexico,” Melloy wrote. “Rather, it leaves resolution of these matters for state or federal political, administrative, or judicial fora within New Mexico. In essence, the United States does not trust New Mexico to fulfill its generally stated duty under the Consent Decree to manage water use within New Mexico in a manner that satisfies the delivery requirement.”

The Supreme Court will consider Melloy’s filing when determining the ultimate ruling in the Texas v. New Mexico lawsuit. It is not yet clear when that will occur. 

Much of the case centered around the use of groundwater in southern New Mexico for agricultural purposes and the impacts that has on the amount of water Texas receives through the Rio Grande.