October 5, 2022 914 PM
WASHINGTON, D.C. — A longstanding lawsuit over groundwater pumping along the Rio Grande in New Mexico is about to mark a nine-year anniversary. The state of Texas is suing New Mexico — and Colorado, technically, though only because the state is named in the original set of laws at play — over a longstanding agreement between the three states to fairly divide water from the Río Grande.
The El Paso Times reported last week that it is unlikely that a settlement will finally be reached by the end of the year — instead, the case is likely to go to trial in January 2023. The suit was originally filed by Texas, which claimed that groundwater pumping below the Elephant Butte Dam was taking away from the state’s fair share of river water.
The two states have been involved in litigation over the Río Grande on and off for over a hundred years. The Rio Grande Compact — signed between the states of New Mexico, Colorado and Texas in 1938 — originated from a lawsuit between Texas and New Mexico filed just a few years prior. The United States Supreme Court has served as the venue for these interstate conflicts, turning the regional water debate into an ongoing national spectacle.
The 1938 Rio Grande Compact divided the river in three, setting “delivery points” for water between the states at the Colorado-New Mexico state line and just below Elephant Butte Dam. Colorado’s annual share of the water depends on average annual flow, but the split of the water delivered to Texas below the dam has been set at 57-43 — 57% to New Mexico, 43% to Texas.
The Elephant Butte Dam, constructed in 1916, is widely blamed for killing the Rio Grande below the enormous reservoir. As far as the 1938 Compact is concerned, Texas’s stretch of the Rio Grande ends at Fort Quitman, about 75 miles downstream from El Paso. Though the river used to run from Colorado to the Gulf of Mexico year round, the once-mighty river is now relegated to a concrete ditch in El Paso and typically runs dry between Fort Quitman and Presidio.
Of course, opinions about interstate water rights run hot-tempered and depend on who you ask. When a civil engineer for the federal government warned of the potential negative impacts of the Elephant Butte Dam before its construction, the dam’s major booster, Nathan E. Boyd, went scorched earth on the report: “One is almost driven to account for its extraordinary irrelevancy by concluding that it was written by a congenital idiot, borrowed for such purpose from the nearest asylum for the insane,” he wrote.
The stipulations of the 1938 Compact were intended to take some of the emotion out of apportioning water between the states. The law included the creation of a permanent commission to oversee water operations, the establishment of gauging stations, and the creation of a system of credits and debits.
Stuart Somach, lead counsel for the state of Texas, argued that this latest round of litigation centered around the drilling of 2,500 ground water wells drilled in New Mexico below the dam since the compact was signed, cutting into Texas’ share of the water. New Mexico, in response, argued that the law didn’t specify that water delivered to the state line, just that New Mexico was obligated to release a certain volume of water from the Elephant Butte dam downstream.
Kevin Urbanczyk, director of the Rio Grande Research Institute at Sul Ross, said that the historical consequences of the dam meant that the lawsuit was unlikely to have an impact on how much water Big Bend residents see in the river — but that the case could have broader implications for how groundwater issues are handled in higher courts.
Water policy in the United States is governed by a number of overlapping entities that have different interests — the science of water use and the politics of water use have long been disconnected. “The government kind of lets states do what they want with groundwater,” Urbanczyk explained. “Surface water is different — that’s all prior appropriation and the federal government is involved there.”
To make matters more confusing, the study of groundwater — the central issue of the ongoing suit — is constantly evolving. “When early groundwater law was being established, [lawmakers] were borrowing from legal precedent in England and Europe that treated groundwater as occult,” he said. “It was hard to see and hard to study — it still is.”
In Texas, a “right to capture” state, landowners are legally allowed to capture water below the surface of their property. Urbancyzk cited a handy hunting metaphor often used to explain how many Texans view groundwater disputes. “Using groundwater is like shooting a pheasant,” he said. “You can’t shoot it if it’s on your neighbor’s land, but if it flies over the fence you can.”
That precedent isn’t the best way to understand the actual science of groundwater. “What they didn’t know a century ago when they were writing these rules is about the connection between recharged groundwater and discharged groundwater, and how intercepting that really affects what goes to the river, what goes into a spring, and what ends up downgradient,” Urbanczyk explained. “Now nobody would ever dispute that there’s a direct connection between surface water and groundwater.”
What’s to blame for all the water politics — poor apportionment, climate change, or overuse? Urbanczyk thinks that the problem is multifaceted, and many of his colleagues and fellow researchers are keeping a close eye on how these disputes evolve. “There’s always the same amount of water,” he said. “Earth isn’t really gaining or losing water, it’s just where it is and what quality it is that changes.”