The US Supreme Court on Friday rejected motions from Texas and New Mexico to reach a settlement regarding water rights in the Rio Grande river.
The decision, reached by a 5-4 vote, overturns the recommendation of lower court judges on how Texas, New Mexico, and Colorado should share the water resources of the 1,900-mile-long river. The Supreme Court found that the federal government still holds water rights in New Mexico and that the settlement agreement cannot resolve this issue, as government lawyers objected to the agreement.
Justice Ketanji Brown Jackson, in the majority opinion, wrote that based on a 1939 agreement on sharing river resources, the federal government has the right to be involved.
“We cannot allow Texas and New Mexico to put the United States in a bind, as the consent decree would deal with the claim that addresses U.S. contracts without federal government approval,” the Justice wrote.
If the consent decrees of the states were to be approved, the federal government would not be able to assert its current claim on how New Mexico extracts groundwater—namely that New Mexico’s current groundwater extraction levels violate the contract.
Officials in New Mexico stated that implementing the settlement agreement would require a series of measures to reduce water usage in the Rio Grande, including paying farmers to fallow their land and improving infrastructure. Some legislators in New Mexico expressed concerns, but the state’s attorney general leading the negotiations hailed the agreement as a victory.
Over the past two decades, due to decreasing flow in the Rio Grande and diminishing water levels in reservoirs along its banks, farmers in southern New Mexico have had to increasingly rely on groundwater wells. Texas brought a lawsuit on groundwater extraction, arguing that this practice reduced the amount of water ultimately delivered under the interstate compact.
The proposed settlement agreement between the two states would acknowledge multiple measures to ensure that New Mexico provides Texas with its due share of water resources. At the same time, New Mexico agreed to drop challenges against Texas in exchange for clarification on the calculation method of water flowing downstream. The agreement also outlined transfer plans in cases of insufficient or excess water reaching Texas.
Last year, following a federal judge’s recommendation for the Supreme Court to adopt the agreement among the three states, the New Mexico Attorney General’s Office praised the decision, stating that farmers and municipal authorities in New Mexico would receive a “fair share of water resources” from the river.
However, U.S. government lawyers argued that the settlement agreement could not be approved without prior consent from the federal government and that it infringed on the government’s own interests.
In a document submitted to the Supreme Court, the government wrote, “The parties’ dispute involves water released by federal projects operated by the Interior Department’s Bureau of Reclamation, including setting diversion allocations for downstream users.” “The court’s interpretation of the rights and obligations under the agreement will affect the Bureau’s calculation of these diversion allocations.”
The original lawsuit was filed by Texas about a decade ago, alleging that New Mexico was extracting groundwater in the Elephant Butte Dam area and diverting Rio Grande water that should have been allocated to Texas.
In the months leading up to the Supreme Court’s ruling on Friday, Harvard University environmental law professor Andrew Mergen said that the U.S. government had a “strong interest” in the case because of the “obligations to Mexico,” as Mexico and Texas share the Rio Grande river on the border.
“Another reason is some of this water is delivered through reclamation projects. The Bureau of Reclamation is an agency within the Interior Department whose chief function is to provide water to irrigators in the arid Western states,” he said, adding that the government also has an “obligation” to provide water to Native American tribes in the region.
The only Supreme Court Justice to dissent was Neil Gorsuch. Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett also expressed dissenting opinions. Chief Justice John Roberts, Justice Brett Kavanaugh, Sonia Sotomayor, and Elena Kagan joined Justice Jackson in the majority.
Gorsuch wrote that with the Supreme Court’s decision, Texas and New Mexico now face “tens of millions of dollars in legal fees” and can only commit to more litigation in the future.
He added, “I worry that the short-sighted decision of the majority will only make the cooperation envisioned in federal and state water law and many river systems that require cooperation between authorities more difficult.”