Texas v. New Mexico Supreme Court

Transcription

1 Texas v. New Mexico Supreme Court Water Case: Issues, Process and Interpretation American Water Resources Association 50 th Anniversary Annual Conference November 3-6, 2014 Vienna, Virginia Ari M. Michelsen, Tiffany Dowell, Zhuping Sheng and Ronald Lacewell, Texas A&M University Brian Hurd, New Mexico State University Michelsen

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3 Rio Grande Two Countries, Five States (jurisdiction matters) 1,900 miles (3,057 kilometers; more than half TX-Mexico border) Basin is arid or semi-arid (Chihuahuan Desert) Sources of water (are outside of Texas) Upper Basin, Snowmelt from Rocky Mountains Lower Basin, Pecos River and Rio Conchos Legally managed as two separate systems Upper Rio Grande: CO, NM, TX, and MX Lower: TX and MX, Fort Quitman to Gulf Texas A&M AgriLife Research Center at El Paso Michelsen

4 Interstate - Rio Grande Compact 1938-Three State Federal Compact Distribution of water between Colorado, New Mexico, and Texas Compact commission 4 members, one from each state plus Federal Government Delivery obligations measured at: CO - CO-NM Stateline at Lobatos NM - at Otowi Bridge/San Marcial into Elephant Butte TX- EB/Caballo Reservoir in NM (120 miles upstream) Texas A&M AgriLife Research Center at El Paso Michelsen

5 Rio Grande Project USBR Authorized 1905 for agricultural irrigation Construction completed million acre feet storage Water allocated based on Project acreage Elephant Butte Irrigation District, 90,640 acres, 57% El Paso County Water Improvement District, 69,010 ac. 43% Plus up to 60,000 acre feet to Mexico NM and TX water rights appurtenant to Project Land Tax on land used to repay USBR; reimbursed in 1980 Elephant Butte Dam and Reservoir

6 Rio Grande Project Region Chihuahuan Desert average annual rainfall 8.5 Basin and range topography - elevation 3,800 to 7,200 Population: El Paso, TX 770,000 Ciudad Juarez, MX 1,500,000 Dona Ana County, NM 200,000 Total 2,470,000 Rio Grande - Elephant Butte/Caballo Dam 120 miles upstream Full allocation release 790,000 acre-feet for year Majority of water used for crop irrigation Extensive agricultural distribution system River channelized, US & MX levees (IBWC) Groundwater major or only source for urban and agricultural use Texas A&M University-El Paso Research Center Michelsen

7 RIO GRANDE PROJECT

8 Texas A&M AgriLife Research Center at El Paso Michelsen

9 Texas A&M AgriLife Research Center at El Paso Michelsen

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11 Texas A&M AgriLife Research Center at El Paso Michelsen

12 Elephant Butte Dam and Reservoir

13 Elephant Butte Reservoir 15+ years of drought

14 Drought Watch on the Rio Grande Surface Water Supply Conditions August 28, 2013 Combined Elephant Butte and Caballo Reservoir Storage Thousan d Acre Feet 2,200 2,000 1,800 1,600 1,400 1,200 1, % 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Water Available for Allocation Water Not Available for Allocation Labor Day water level in Elephant Butte will be almost 115 feet below the dam. The lake surface will be only 10% of the full reservoir surface area. Combined Storage 4.2 % Water Supply Conditions & Forecasts Water in Storage is 93,778 acre-feet or 4.2% of the combined reservoir capacity of 2.23 million acre-feet. Of this 57,604 acre-feet of the amount in storage is Rio Grande Compact and San Juan-Chama credit water which is not available for use, leaving only 1.6% of capacity available was the shortest irrigation season with the lowest water deliveries in the almost 100 year history of Rio Grande Project. Spring snowpack runoff was almost zero this year. The 2014 river water supply depends almost completely on next winter s snowpack. The Climate Prediction Center three month forecast calls for above normal temperatures and average chances of precipitation. The 2013 Rio Grande Project water allocation was only 6.1% of a full supply. The water allocation for 2012 was 38.7% of a full supply. 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Water allocation to agricultural and urban users as a percent of full supply (amount varies by district) Cumulative Water Allocation for the Year 2005, 08, 09 Allocations 2007, No Water Delivery , 12 Allocation End of Releases J F M A M J J A S O N D Produced by: Texas A&M AgriLife Research Center at El Paso, Texas A&M University System in cooperation with the USDOI Bureau of Reclamation, El Paso, Texas Water Resources Institute and USDA-NIFA Rio Grande Basin Initiative For additional information:

15 Groundwater The Solution? Photo of EP1 GW pumping Michelsen

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17 Elephant Butte Reservoir Caballo Reservoir Rincon Basin Paso del Norte Mesilla Basin United States Mexico Ciudad Juárez Las Cruces Hueco Basin El Paso Fort Quitman New Mexico Texas

18 Increase in Wells

19 TDS (salinity) of the Rio Grande 3000 TDS (mg/l) TDS (mg/l) Winter 01 Summer Winter 00 TX/El Paso drinking water standard Winter 01 Summer 00 Winter 00 Albuquerque Albuquerque Elephant Butte Elephant Butte El Paso El Paso Distance (km) Distance (km) Source: Dr. Fred Phillips Recommended drinking water standard

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21 History of Litigation USBR, EBID, EPCWID, EPWU EPWU applies for NM GW rights NM denies, EPWU sues Settlement Agreement 1991 EPWU agrees to restrict pumping Late 1990 s, early 2000 s almost a dozen law suits 2007 EPCWID v. EBID, claims NM pumping diminishing deliveries and water quality

22 2008 Operating Agreement USBR, EBID and EPCWID sign Operating Agreement and drop suits Resolves issues over groundwater pumping, water deliveries and water quality EBID foregoes a portion of Project deliveries to account for groundwater pumping Increased deliveries to EPCWID Allows Irrigation Districts to carry-over water

23 Lack of Agreement 2011 NMOSE files suit against USBR NM alleges Operating Agreement changes authorized allocation of Project Water 2013 Texas requests approval to file suit against New Mexico in the Supreme Court alleging NM has allowed groundwater wells that reduce delivery of 1938 Compact water to Texas

24 Let the Fight Begin - TX v. NM

25 Off to Washington Texas files suit in US Supreme Court. USSC has original jurisdiction for suits between sovereign states. USSC invited United States to weigh in on whether it should allow the case to go forward.

26 Fightin Words New Mexico will not cede one inch of New Mexico water to Texas! NM Governor Susana Martinez

27 Litigants and Stakeholders City of El Paso Texas El Paso Cnty WID #1 U.S. Bureau of Reclamation Elephant Butte Irrigation District New Mexico City of Las Cruces Colorado

28 What has the Court decided? Texas may file its Complaint. The United States may intervene and file its own Complaint. New Mexico may file a Motion to Dismiss, Texas will respond, and New Mexico will reply.

29 Texas Arguments Spirit and purpose of the Compact! There is less water available for Texas. Fundamental purpose to ensure 1938 conditions. 2,500 new wells have been drilled between Elephant Butte and the state line.

30 What does Texas want? Declare the rights of the State of Texas under the Compact and Project. Command New Mexico to deliver waters in accordance with the Compact and Project Command New Mexico to cease and desist all actions that interfere with the ability of the United States to operate the project. Damages.

31 New Mexico s Arguments Read the Compact language! Delivery point is Elephant Butte, not the state line. Compact does not address this issue. No requirement to maintain 1938 conditions. Other remedies are proper.

32 State of New Mexico I. TEXAS CLAIMS ARE NOT APPROPRIATE FOR THE EXERCISE OF ORIGINAL JURISDICTION. A.Texas claims are not based on the express terms of the Compact B.New Mexico s Compact delivery obligation is to Elephant Butte Reservoir and not to the New Mexico-Texas state line C.Texas asks this Court to insert new terms into the Rio Grande Compact 1. Texas asks this court to rewrite the Rio Grande Compact 2. The plain language of the Rio Grande Compact simply does not include any protection of 1938 conditions 3. The Rio Grande Compact does not require New Mexico to guarantee that water delivered to Elephant Butte Reservoir flow unimpeded to the New Mexico-Texas state line sources: (1) (2) Sarah Bond, NM Assistant AG and Council of Record for the State of New Mexico, Apr 2014, Law of the Rio Grande presentation

33 State of New Mexico II. THE ISSUES RAISED BY TEXAS ARE BEING LITIGATED IN ALTERNATIVE FORA A. Texas interests may be vindicated in ongoing cases in the Federal District Court and in the Lower Rio Grande Adjudication B. The United States distribution of Rio Grande Project water is currently being litigated in Federal District Court C. The United States claims to Rio Grande Project water are properly before the Lower Rio Grande Adjudication Court pursuant to 43 U.S.C. 666 III. TEXAS MOTION FOR LEAVE MUST BE DENIED BECAUSE THE UNITED STATES IS AN INDISPENSABLE PARTY AND HAS NOT CONSENTED TO JOINDER IN THIS ACTION Subsequently, US agreed and is now added as a plaintiff in lawsuit asserting its own claims and allegations towards BOTH NM and TX IV. TEXAS FULL FAITH AND CREDIT AND GOOD FAITH AND FAIR DEALING ARGUMENTS HAVE NO MERIT

34 State of Colorado Colorado is not now expressing a view on whether the Complaint adequately alleges a controversy between the states, but it cannot see an alleged injury based on the terms of the Compact. As the home of nine interstate water compacts, Colorado believes that litigation regarding compacts should be narrow in scope. Colorado requests that it be granted the ability to fully participate in any motion in the nature of a motion to dismiss. Because Colorado is a party to the Compact, it has a genuine interest in its interpretation. The United States has made several statements in its brief that concern Colorado and may adversely impact Colorado s rights and obligations under the Compact. Until Texas clearly asserts a violation of the terms of the Río Grande Compact, Colorado does not support Texas Motion on the basis of a compact controversy.

35 United States Bureau of Reclamation The effect of the 2008 Operating Agreement is that EBID agrees to forgo a portion of its Project deliveries to account for changes in Project efficiency caused by groundwater pumping in New Mexico. The United States has a further interest in ensuring that New Mexico water users who do not have contracts with the Secretary for delivery of Project water, or who use Project water in excess of contractual amounts, do not intercept Project water or interfere with delivery of that water to other Project beneficiaries.... particularly under drought conditions, there would likely come a point at which uncapped groundwater pumping in New Mexico would reduce Project efficiency to an extent that 43% of the available water could not be delivered to Texas, even if EBID forwent all Project deliveries. The United States has an interest in ensuring that violations of the Compact by New Mexico do not prevent the United States from meeting its contractual obligations to Project beneficiaries.

36 United States Arguments Look at the purpose! The purpose is to allocate water above Ft. Quitman, not above Elephant Butte. NM gives up control of water when delivered. Groundwater & surface water is hydrologically connected.

37 What does the United States want? Declare that New Mexico: May not permit water users without contracts to intercept or interfere with Project water deliveries. May not permit beneficiaries in New Mexico to intercept water in excess of allowed amounts. Must affirmatively act to prohibit or prevent such interference. Enjoin New Mexico from interfering. Mandate that New Mexico affirmatively prevent such interference.

38 Where do we go from here? Just this week, announcement that the case is being assigned to a Special Master. Years of fun will likely begin. Court will rule..sometime.