Today, the Supreme Court decided in Texas v. New Mexico, which looked at a water dispute between the states and the Rio Grande River. The Supreme Court rejected a settlement between Western states over managing the Rio Grande’s water.
The 5-4 decision rejected a settlement recommended by a federal judge on water sharing among New Mexico, Texas, and Colorado, as the Supreme Court determined the federal government’s claims against New Mexico remained unresolved.
“Texas v New Mexico stands to be the landmark water law decision of the 21st century as it recognizes a federal interest that likely affords the federal government a seat at almost all future interstate compact negotiations,” explains Gage Zobell, a water law expert and partner at Dorsey and Whitney.
U.S. Circuit Judge Michael Melloy deemed the proposal a fair and reasonable solution to the Texas-New Mexico water dispute, aligning with a longstanding agreement involving Colorado.
However, the federal government objected, citing the proposal’s lack of specific water capture or use limitations in New Mexico.
“The Court’s narrow 5-4 decision denying the States’ consent decree comes somewhat unexpectedly after the oral arguments seemed to preface a 6-3 or 5-4 decision the other way,” explains Zobell.
New Mexico officials indicated that implementing the settlement would involve reducing Rio Grande water use through various methods, such as compensating farmers to leave fields fallow and improving infrastructure.
“The immediate aftermath of the decision is, frankly, uncertainty as to the future of apportionment and water usage along the Rio Grande. The implications stretch from Southern Colorado through Texas,” says Zobell. “At this juncture, the claims by the United State Bureau must be addressed and the simple solution proposed by New Mexico and Texas to move the place of measurement will not suffice.”
Over the past two decades, southern New Mexico farmers have increasingly turned to groundwater wells in response to dwindling water resources along the Rio Grande due to drought and climate change. Texas challenged this practice, alleging it diminished water delivery under the interstate compact. The proposed settlement addresses these concerns by implementing various measures to ensure New Mexico meets its obligations to Texas.
Additionally, New Mexico will drop its challenges against Texas in exchange for clarity on water accounting and provisions for water transfers based on downstream flow variations.
“This reminds me of the recent issue in Idaho where you had 500,000 acres of planted cropland held hostage to a potential water curtailment. If New Mexico farmers are unclear if their groundwater usage is allowed in the future, do you risk planting crops? This question has to be on everyone’s mind as we wait on if the United States Bureau of Reclamation comes to the settlement table quickly or simply uses this SCOTUS decision to enforce its interests against the states,” states Zobell.
“The future questions will be: 1. Will the United States Bureau of Reclamation seek to use this precedent to intervene in other interstate river issues (i.e., Colorado River); and 2. Can the states and the Supreme Court differentiate their decision in such a case,” concludes Zobell.
The current dispute traces back to the 1938 Rio Grande Compact, a pact regulating river use across three U.S. states through a debit-credit system adapted to changing hydrological conditions.
Historically, New Mexico has received 57 percent of the domestic Rio Grande flow, with the remainder allocated to Texas. Spanning 1,896 miles from its southwestern Colorado origin through New Mexico and Texas, the Rio Grande also delineates the U.S.-Mexico border and serves 20 tribal nations in New Mexico and two in Texas. Additionally, the U.S. established a separate water-sharing accord with Mexico in 1906.
»Related: Op-Ed: Mexico’s disregard for treaty has farmers on the brink