On January 8, 2013, the State of Texas filed a complaint in the United States Supreme Court (Supreme Court) alleging that the State of New Mexico has, contrary to the purpose and intent of the 1938 Rio Grande Compact (Compact), allowed and authorized Rio Grande Project (Project) water intended for use in Texas to be intercepted and used in New Mexico.  The Compact requires that New Mexico deliver Rio Grande water into Elephant Butte Reservoir (Elephant Butte), a storage feature of the Project.  Texas alleges that New Mexico, by allowing and authorizing the interception of Project water intended for Texas, violates the purpose and intent of the Compact, causing grave and irreparable injury to Texas.  Texas included Colorado as a named party in the complaint on the basis that it is also a signatory to the Compact.  The Supreme Court has original and exclusive jurisdiction over cases and controversies between two or more states.

Somach Simmons & Dunn represents the State of Texas in this litigation and Stuart L. Somach is Counsel of Record for the State of Texas.

Background

The Project provides water to agricultural lands in southern New Mexico and in areas adjacent to El Paso, Texas.  Elephant Butte Dam and Reservoir is the main storage feature of the Project.  Project water is allocated based upon the ratio of irrigable Project acreage within New Mexico and Texas.  Historically, this acreage has been about 57 percent in New Mexico and 43 percent in Texas.  The Compact does not specifically identify a New Mexico–Texas state line delivery obligation, but instead provides for certain water delivery requirements into Elephant Butte Reservoir and otherwise protects the Rio Grande Project and the water allocations from the Project.  A fundamental purpose of the Compact is to maintain Project operations under the conditions that existed at the time of entry to the Compact in 1938.

New Mexico’s Elephant Butte Irrigation District (EBID) and Texas’ El Paso County Water Improvement District No. 1 (EP#1) are the beneficiaries of Project water.  The City of El Paso, Texas receives approximately 50 percent of its water from the Project pursuant to a contract with EP#1.

In 2008, EBID and EP#1 finalized an operating agreement for the Project with the United States Bureau of Reclamation.  The operating agreement acknowledges the 57/43 percent ratio noted above, and represents a significant compromise among the parties.  In August of 2011, New Mexico filed an action against the Bureau of Reclamation in federal district court in New Mexico seeking to set aside the operating agreement.  Additionally, New Mexico, in New Mexico state court, is in the process of adjudicating water rights to the Lower Rio Grande River in New Mexico.  The adjudication includes non-Project diversions and extractions in areas below Elephant Butte.  Texas is not a party to either the federal district court litigation or the New Mexico state court adjudication.

Texas’ Claims

Texas alleges that New Mexico, based on novel interpretations of the Rio Grande Compact and its resulting obligations, has over-appropriated water for use in New Mexico, which depletes Texas’ allocation of Project water.  The complaint asks the Supreme Court to declare the rights of Texas to the waters of Rio Grande and issue a decree demanding that New Mexico deliver waters of the Rio Grande to Texas in accordance with the Compact, and cease and desist from all actions that interfere with Texas’ Compact rights.  Furthermore, Texas seeks damages for its injuries.

Next Steps

The Supreme Court’s exercise of its original jurisdiction is discretionary.  It will likely ask for New Mexico and Colorado to file responsive briefs, after which it will decide whether to accept Texas’ complaint.  If the Supreme Court accepts Texas’ complaint, it will likely appoint a Special Master as the fact finder.  Because there are no specific deadlines for Supreme Court decisions on original jurisdiction actions, it is difficult to predict when to expect a final ruling on the merits of Texas’ complaint, but it would likely take a number of years.

A copy of the complaint can be found at http://www.tceq.texas.gov/assets/public/agency/01-08-13-motion-complaint-brief.pdf (Jan. 9, 2013).

For more information on Texas v. New Mexico & Colorado, please contact Andrew M. Hitchings or Richard S. Deitchman at (916) 446 7979, or by email (ahitchings@somachlaw.com or rdeitchman@somachlaw.com).

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