Federal government fights to maintain control of Western water rights at Supreme Court

WASHINGTON (CN) — A decade-old water fight in the arid West will make its second Supreme Court appearance next week in a case that could determine what authority the feds have over state water fights. 

The United States wants the Supreme Court to prevent Texas, New Mexico and Colorado from entering a water deal without its consent. It claims the states’ deal saddles the federal government with obligations it has not agreed to and violates a nearly century-old compact. But some water-law experts see the dispute as just one in the long-fraught relationship between Western water law and federalism, and they've urged the justices to take this opportunity to rein in the federal government. 

“The United States should not be allowed to eat its cake and have it too,” water-law experts wrote in an amicus brief. “The court, which granted the intervention, should make clear that the United States must not abuse its superior power and resources to engage in asymmetrical interstate litigation among coequal states.”

The water in question comes from the Rio Grande, which begins in Colorado and flows through New Mexico, Texas and across the border into Mexico before emptying into the Gulf of Mexico. While it passes through multiple states and countries, irregular floods leave the flow of water along the river disproportionate. 

To create more water equity between all parties along the river, the United States created the Rio Grande Project, a dam and reservoir, to store flood waters and distribute them downstream. 

Mexico agreed to give the United States the rights to all unclaimed water in the Rio Grande. The two countries signed a treaty giving Mexico a portion of floodwaters collected by the United States each year. 

Texas, New Mexico and Colorado created the Rio Grande Compact in 1938 to equally divide up the states’ share of the water. While water was plentiful at the time, droughts and a rise in groundwater pumping in New Mexico have since created problems. 

In 2013, Texas accused New Mexico of failing to meet its obligations under the compact. Texas claimed groundwater pumping in New Mexico was intercepting Texas’ water. The United States joined Texas’ complaint with similar allegations. 

A court-appointed special master recommended dismissing the government’s complaint, but the Supreme Court unanimously overruled that decision in 2018. The court said the federal government had interests outside of the states that needed to be addressed. 

A trial began but was postponed for settlement negotiations. As these conversations dragged on, the special master suggested that New Mexico and Texas create their own agreement. 

Texas and New Mexico found common ground and proposed a consent decree. This is where the federal government’s objection comes from.  

“The proposed consent decree would make the United States ‘responsible for operating the project in a way that assures that the compact’s equitable apportionment’ is ‘achieved consistent with the terms of th[e] decree,’” U.S. Solicitor General Elizabeth Prelogar wrote. 

The federal government said it would be required to make sure the Rio Grande Project does not interfere with the states’ new plan. It would also be responsible for transferring water between districts and operating the dam in line with the compact. 

Texas and New Mexico claim the agreement resolves the issue between the two states. They said the government’s claims were nearly identical to Texas’ and that the proposal therefore deals with everyone’s concerns. 

“The primary issue in this case is the baseline for the compact apportionment between New Mexico and Texas below the reservoir,” wrote Aaron Nielson, Texas’ solicitor general. “The consent decree resolves that issue. With its exception, the United States seeks to block the settlement and send this case back to litigation.”

The court will hear arguments on March 20. 

Follow @KelseyReichmann

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