EL PASO — On Friday, Texas and New Mexico reached a settlement in a lawsuit that’s stretched on for 12 years. The suit alleges that New Mexico made a habit in the second half of the 20th century of pumping too much groundwater, depriving river users downstream of the Elephant Butte dam — namely, farmers and municipalities around El Paso and Juárez — of water apportioned for them under the 1938 Rio Grande Compact between Texas, Colorado and New Mexico.
Texas originally filed suit in 2013 and named the state of Colorado as a codefendant, seeking “declarative, injunctive, and monetary relief,” per court documents. In other words, the state of Texas wanted legal clarification on the state of the Rio Grande Compact 75 years after it was signed, given how much both the supply of and demand for water along the river had changed in that time. The federal government filed its own complaint a year later, reminding all of the parties involved that the government has a constitutional right to sign off on agreements between states. (This case is also made more complicated by a 1906 treaty that guarantees water deliveries to Mexico.)
These sprawling suits have been arbitrated in part by a “special master” — an expert appointed by a judge to sift through evidence and help move the case along. In the early stages, the special master recommended that the federal government’s suit be tossed, but the Supreme Court allowed the United States to proceed with litigation.
In both Texas’ and the United States’ legal view, the 1938 Rio Grande Compact needed to be reevaluated to reflect the realities of modern agriculture. While many politicians in Texas shy away from policies that explicitly name climate change, a series of droughts starting in the 1950s prompted farmers to start drilling for groundwater — a process that these suits allege siphons water out from the shared supply before it can be delivered to downstream users.
Both the science of hydrology and legal frameworks around water rights have changed dramatically over the past 75 years. In 1938, the link between groundwater and river levels had not been fully established, and “capture” laws regulating the use of water on a particular property tended to grant the property owner free reign on groundwater, regardless of the impact to river levels.
Texas and New Mexico originally reached a settlement in 2022, which reframed the Rio Grande Compact from conditions in 1938 to reflect a period of study from 1951 to 1978 that would have updated the expectations of water deliveries to reflect a more modern reality. The states’ “consent decree” was struck down by the Supreme Court in June 2024, with a slim 5-4 majority arguing that it unfairly boxed the federal government out of its role as an “agent” regulating the interstate compact. “We cannot now allow Texas and New Mexico to leave the United States up the river without a paddle,” Justice Ketanji Brown Jackson wrote for the majority.
Justices Gorsuch, Thomas, Alito and Barrett disagreed with this logic, saying that Brown’s argument was a serious impediment to states’ abilities to regulate water rights — conflicts over which are likely to intensify as the American West gets busier and more crowded. “I fear the majority’s short-sighted decision will only make it harder to secure the kind of cooperation between federal and state authorities reclamation law envisions and many river systems require,” Justice Gorsuch wrote.
In a story for Inside Climate News last fall, reporter Martha Pskowski interviewed a number of experts on the decision, including Burke Griggs, a professor of water law at Washburn University. “States that settle water disputes are now going to think twice,” he told Inside Climate. “It’s a real wrinkle we haven’t seen before, where a non-party to a compact can intervene and then block a settlement.”
The most recent settlement, formally announced last week, sets revised formulas for different entities that have a stake in the Rio Grande and an agreement for New Mexico to cut back on groundwater use. It allows New Mexico some wiggle room to transfer water rights to help meet demand both above and below the Elephant Butte Reservoir, which was at 3.8% full as The Sentinel went to press this week.
The Rio Grande runs dry most of the year between El Paso and Presidio, so river users in the Big Bend are unlikely to see a big boost from better-regulated water deliveries between New Mexico and Texas. If this most recent settlement doesn’t meet the same demise as the one drafted in 2022, the real change that folks along the river may notice in the coming years is in the realm of case law — this sprawling, decade-plus long suit is likely to have an impact on how states regulate their water use going forward. “Of course, when a river touches so many jurisdictions, disputes about water rights are bound to follow,” Justice Jackson wrote.