The Supreme Court is sending Rio Grande basin states back to the drawing board after determining their proposed water-sharing deal fails to meet the federal government's interests.
A proposed consent decree between Texas and New Mexico that would have created a system to determine how much Rio Grande water each state should receive and ended years of litigation, would undercut the United States' claims under a compact guiding water-sharing on the river, the court said in a 5-4 ruling.
While the states in the case argued that the federal government doesn't have valid claims under the compact because it doesn't directly receive an apportionment of water, the court's majority held that it it holds "distinctively federal interests" for ensuring water can be delivered to Mexico.
"Our decision today follows directly from our prior recognition of the United States’ distinct federal interests in the Rio Grande Compact," wrote Justice Ketanji Brown Jackson, who drafted the majority opinion. "Having acknowledged those interests, and having allowed the United States to intervene to assert them, we cannot now allow Texas and New Mexico to leave the United States up the river without a paddle."
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Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh joined in Jackson's opinion.
The dispute began when Texas filed suit in 2013 claiming that New Mexico water users were “unfairly siphoning” water, leaving little for Texas. The two states and Colorado joined to negotiate an agreement. The Interior Department of the Interior also took issue with New Mexico's water use, seeking "an injunction requiring New Mexico to stop in-state entities from interfering" with its delivery of water to Elephant Butte Irrigation District, El Paso County Water Improvement District 1, and Mexico, Jackson said.
The court allowed the U.S. to intervene despite a special master's recommendation to dismiss its complaint. The states drafted a consent decree that proposed "incorporating New Mexico's groundwater pumping into the compact by adopting a new method for apportioning Rio Grande water," Jackson wrote. That solution, she said, fell outside of what the United States had originally sought, and accepting it would "dispose of" the federal government's legal claim.
Justice Neil Gorsuch, in a dissent joined by Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett, contended that the proposal would "fairly apportion water from the Rio Grande River between those two states and leave federal reclamation operations in the area running the way they have run for decades."
While Gorsuch acknowledged that federal reclamation officials would need to measure the water they release to Texas and New Mexico water districts using an equation called the D2 curve and use an El Paso gauging station to do so, he noted that it already does both to some degree. The decree, he argued, "does not impose any new improper duty or obligation on the federal government or deny it the ability to pursue any valid claim it may have."
"The court’s decision is inconsistent with how original jurisdiction cases normally proceed," Gorsuch wrote. "It defies 100 years of this court’s water law jurisprudence. And it represents a serious assault on the power of states to govern, as they always have, the water rights of users in their jurisdictions."
New Mexico Attorney General Raúl Torrez, in a press release, said the Supreme Court's decision will lead to "millions more spent in legal fees and more uncertainty for New Mexico’s water users, all because the Interior Department feels the need to dictate how New Mexico meets its obligations to the State of Texas."
“We are profoundly disappointed by the Supreme Court’s decision to reject a comprehensive settlement that would have safeguarded the rights of water users throughout southern New Mexico,” Torrez said. “But we are even more disappointed that the federal government would stand in the way of an equitable resolution of a decades-long case that neither Texas nor New Mexico wish to continue."
Texas Attorney General Ken Paxton echoed Torrez, noting that the states and the special master supported the decree, which he said would "ensure Texas farmers have access to vital water supplies."
"We will continue to work to ensure that the rights of Texas farmers are protected during the next steps of the process,” Paxton said.
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