A settlement draft is on the table to end nearly a decade of litigation over Rio Grande water before the Supreme Court — but not everyone is on board.
On Tuesday, Judge Michael Melloy — who is overseeing the case as the special master — said he would hear arguments on a draft settlement presented by Colorado, New Mexico and Texas, over the objections of the federal government and at least two irrigation districts.
The three states called the draft settlement a “carve-out decree” that resolves all issues of Rio Grande water-sharing between the states, while leaving open discussions of “intrastate” water management in New Mexico. Those discussions would involve disagreements over management of federal irrigation canals and dams, said Jeff Wechsler, the lead attorney for New Mexico.
“The settlement we believe fairly ensures that both Texas and New Mexico receive their fair share of water,” Wechsler said, adding that the state was open to resolving issues with the federal government.
Attorneys for the federal government disagreed that any issues could be “carved out,” and objected to the states’ proposed settlement, the terms of which remain confidential.
“Without the United States agreeing to this settlement, this compact dispute can’t end,” said Fred Liu, assistant to the Department of Justice’s solicitor general.
Texas sued New Mexico in the Supreme Court in 2014, arguing that groundwater pumping in southern New Mexico denied Texas its fair share of river water laid out by the 1938 Rio Grande Compact. In 2018, the high court allowed the federal government to join the case. The federal government has argued that New Mexico’s groundwater pumping threatens a water-sharing treaty with Mexico and arrangements with El Paso County Water Improvement District No. 1 and Elephant Butte Irrigation District.
Attorneys representing the irrigation districts sided with the feds Tuesday in opposing the states’ proposed settlement.
“This is a settlement over the objection of three major participating entities, all who run the (Rio Grande) Project and all who will be responsible for implementing this settlement over our objection, over our rights,” said Samantha Barncastle, who represents Elephant Butte Irrigation District. The Rio Grande Project is the series of federal dams and canals that distributes water and hydroelectric power to communities along the Texas-New Mexico state line.
Barncastle asked Melloy to send all of the parties back to the negotiating table.
Maria O’Brien, the attorney for El Paso County Water Improvement District No. 1, called the draft agreement “not workable.” She charged the states with making offers they could not actually keep.
Melloy on Tuesday called off the Jan. 17 trial date he set last month after the parties failed to reach an agreement after nearly a year of negotiations. He scheduled a Jan. 24 briefing to determine the legal issues surrounding the proposed settlement.
The judge encouraged the parties to continue negotiations in the months ahead of the briefing.
Liu pushed back, saying the federal government’s team did not have the resources to split between negotiating a new settlement, and responding to the states’ draft settlement.
Melloy responded that it was the federal government who had pushed for continuing to negotiate the case in May when the court inquired about scheduling the pending second half of the trial.
“Don’t start down that ‘poor old United States of America. We’re too busy to talk about settlement, and we don’t have the resources and we’re stretched too thin.’ I’m not buying that argument,” Melloy said, clarifying that he was not directing the parties to continue settlement discussions.
“I’m not directing you to do anything, and you can do whatever you want.”