Attorneys for the federal government submitted a brief to the U.S. Supreme Court last week and argued in favor of the high court agreeing to hear the merits of a complaint filed last year by the State of Texas against New Mexico over shared water rights on the Rio Grande.
In a complaint to the Supreme Court last year, Texas charged that groundwater pumping in the Hatch and Mesilla valleys of New Mexico to irrigate pecan and chili pepper crops is robbing the Rio Grande of higher flows and reducing recharge, depriving Texas of water that belongs to them.
Attorneys for the government filed a motion last week that would clear the way for the Supreme Court to hear the complaint, a move that technically elevates the case. It would, if approved, establish a precedent by naming the U.S. Supreme Court as the only court that holds initial and exclusive jurisdiction with respect to the issue. The U.S. Supreme Court primarily hears appeals; being the court of original and exclusive jurisdiction is unusual.
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Perhaps it is one of the early signs in the growing importance of water and how the issue will continue to explode on a state, local, national and international level in the years ahead unless scientists are wrong and climate change doesn't cause a continuing trend for dry conditions, in other words, until the rains return.
In effect, in the brief filed last week, federal attorneys asked the Supreme Court to intervene in the dispute over how waters of the Rio Grande are to be divided between the two states. But the implications of the high court’s involvement could go beyond that, possibly impacting international water management agreements and policy, especially if the current drought should continue multiple years as forecast.
In regards to the current issue, New Mexico Attorney General Gary King says he is opposed involving federal courts in water issues between states and instead argues the legal authority in the case should be a New Mexico State District Court. He is accusing federal lawyers of siding with Texas by their latest action and says New Mexico is meeting their obligations as outlined by the Rio Grande Compact, an interstate water agreement that indicates how the water of the Rio Grande will be shared by Colorado, New Mexico and Texas.
New Mexico, however, has previously acknowledged before a New Mexico State District Court that groundwater pumping in New Mexico and Texas has reduced the efficiency of the Rio Grande. But since pumping groundwater in Texas only happens after the water stored at Elephant Butte Reservoir is divided as noted in the Compact, then pumping groundwater in New Mexico would be the only cause of reduced levels in the reservoir, the point at which the water is divided among the states.
Nonetheless, King argues that legal precedent has already been established by the state court's multiple hearings and pending water cases. He insists the Supreme Court has no jurisdiction in the case and says he is prepared to fight a long and lengthy battle if necessary on behalf of farmers’ rights in New Mexico.
Not all New Mexico water stakeholders affected by the issue agree. Critics, even among southern New Mexico irrigation districts, fear that rehashing the issue in the courts could end with New Mexico losing some of its share of the water from the reservoir as a result of the litigation.
Federal court officials have countered King's position by saying the issue involves the U.S Bureau of Reclamation, which manages Elephant Butte and is charged with distributing water not only to Texas by the Compact but also to Mexico according to terms of an international water treaty. That treaty established a bi-nation agency made up by water officials of both Mexico and the United States. The group, known as the International Boundary and Water Commission (IBWC), is charged with overseeing the management of all rivers and their tributaries that border or feed into rivers that border Mexico.
Officials say the court would need to be careful not to make any ruling that conflicts with the terms of that international water treaty. Some, however, have suggested it may be time for the U.S. to consider renegotiating the treaty over allegations Mexico has failed to satisfy their responsibilities to release water from the tributaries that feed the lower Rio Grande at Lake Amistad.
Some Texas officials, including local officials in the Lower Rio Grande in South Texas, complain Mexico is playing games with water stored in Mexican reservoirs and has traditionally been late or short of water deliveries that would benefit farmers in the lower Texas Valley. There has been sword rattling along the South Texas border over the plight of the South Texas agriculture economy.
Once a vibrant agricultural region where vegetable, commodity crop and citrus farms stretched from county to county, the Valley in recent years has declined in agricultural production and become more a hub for the entry and cold storage and shipping of Mexican food imports, including fresh fruits and vegetables. A growing portion of all of Mexico's food imports are being shifted to South Texas.
Regardless what action the Supreme Court may or may not make in the weeks, months or years ahead, the larger issue of water shortages and how state and international neighbors will resolve issues over water sharing will dominate the news unless an unexpected change in the weather brings an extended period of abundant rain. Until then, the forecast calls for uncertainty.