Attorneys laid out their arguments Monday during the first day of a virtual trial in a lawsuit over Rio Grande water with Texas and the federal government alleging that New Mexico’s use of groundwater cut into Texas’ share of river water.
The appointed special master, Michael Melloy, a senior judge for the U.S. 8th District Court of Appeals, is hearing arguments in the 8-year-old case and will compile a report for the U.S. Supreme Court.
Melloy determined in late August that the long-awaited three-month trial would be split into two portions, one virtual and one in-person later in Cedar Rapids, Iowa. He cited a health emergency for one of the Texas attorneys and concerns about the increase of COVID-19 cases for splitting the trial.
Virtual testimony from a mix of members of federal agencies, farmers, irrigation managers, hydrologists and city officials from El Paso and Las Cruces will continue over several weeks.
In the 2014 complaint in the case, officially called No. 141 Original: Texas v. New Mexico and Colorado, Texas attorneys allege New Mexico’s groundwater pumping reduced Texas’ Rio Grande portion by tens of thousands of acre feet each year, and owes Texas damages. An acre-foot of water is equal to about 325,851 gallons.
Colorado is named as a defendant only because it is a signatory to the 82-year-old Rio Grande Compact.
The compact lays out how much water each state gets. Colorado is required to deliver the water to the New Mexico state line and New Mexico is to deliver the water into Elephant Butte Reservoir. The water stored there is used for irrigation districts in New Mexico and Texas (which is roughly 120 miles downstream) and to provide Mexico its share of Rio Grande water.
The longstanding tug-of-war over the river’s water between the states and the federal government started a decade ago. In a 2011 federal lawsuit, New Mexico alleged the federal government shorted New Mexico its Rio Grande water, and gave too much to Texas. It escalated when Texas filed a new lawsuit against New Mexico in the U.S. Supreme Court three years later.
On Monday, attorney Stuart Somach, who represents Texas, opened with an apology for repeating arguments, saying he’s presented Texas’ case since 2012.
“It seems to me like it’s all been hashed and rehashed a million times,” Somach said.
The basis for Texas’ case, Somach said, was that New Mexico’s groundwater pumping south of the Elephant Butte Reservoir depleted the Rio Grande and violated the Rio Grande Compact.
Historically, the Rio Grande was split 57% to New Mexico and 43% to Texas. Somach said that the increased groundwater use from the city of Las Cruces, New Mexico State University and agriculture in New Mexico reduces the total amount of river water available to Texas.
“We don’t quibble with the fact that we get 43% of something,” Somach said. “But what we’re entitled to is 43% of the conditions that existed in 1938, not the conditions that have been created by New Mexico groundwater pumping.”
Somach said over the next few weeks, Texas farmers, the irrigation district and officials from the city of El Paso will testify to the “injury caused directly by New Mexico’s actions.”
James DuBois, an attorney in the Department of Justice, told the court that New Mexico has known that groundwater pumping would impact the amount of water in the Rio Grande.
“The United States intervened because New Mexico has failed to administer groundwater use to prevent interference with the water supply of the Rio Grande Project,” DuBois said.
DuBois said New Mexico’s actions threatened the compact, and the 1906 treaty that guarantees Mexico’s portion of the Rio Grande, up to 60,000 acre-feet.
“The continued deterioration of the river and the aquifer system poses a potential threat to the United State’s ability to deliver the obligated water,” he said.
DuBois said the court would hear from federal officials at the U.S. Bureau of Reclamation, which oversees irrigation projects in the West, about a 2008 operating agreement between the federal government and irrigation districts that updated allocations.
He said to expect testimony from the International Boundary and Water Commission, a binational agency which enforces the water treaty with Mexico, in coming weeks.
The opening arguments for New Mexico were split between the outside counsel and New Mexico Attorney General Hector Balderas.
Balderas said the uncertain climate future and a shrinking river make this case pressing.
“We know that climate is not changing by itself, but we have seen less and less water as the years go on,” Balderas said.
Balderas said the state maintains that New Mexico is not receiving its fair share of water. He referenced the federal civil case from 2011, when the then-Attorney General Gary King sued the federal government over the 2008 operating agreement with the irrigation districts. King alleged the agreement gave too much water to Texas and shorted New Mexico. That 2011 case remains unresolved, because when Texas filed the lawsuit in the Supreme Court in 2014, action halted in the lower courts.
“It’s not Texas that is being harmed in this case, it is New Mexico,” Balderas said.
Attorney Jeff Wechsler, representing New Mexico, said the 2008 operating agreement meant that New Mexico is shorted on surface water, making area farmers more reliant on groundwater pumping.
“The evidence will show that project supply is no longer allocated on that basis or on the principle of an equal amount per acre,” Wechsler said.
Wechsler said that additional water in Texas is sold by the El Paso irrigation district to Hudspeth County, which is allowed to use Rio Grande project waste water.
“If the water were not wasted, flowing out the bottom or sold to Hudspeth, then it would be in project storage, and if it were in project storage it would be available for division and use in New Mexico and Texas as well,” Wechsler said.
Wechsler went on to say that groundwater pumping in the Hueco Bolson by El Paso, a major source of water for the city, has impacted Rio Grande project waters.
Wechsler said that New Mexico farmers, relying on groundwater because of the federal government’s allocation changes since 2008, are paying more in maintenance and in soil changes, which he said amount to millions in damages.
Weschler asked the court to rule that “New Mexico receives 57% of project water” and allow the state to collect damages.
Cover photo: The Rio Grande seen from Country Club Road at the Texas-New Mexico state line, with Mexico’s Sierra de Juárez in the background, on Aug. 15. (Corrie Boudreaux/El Paso Matters)