Newly elected New Mexico Attorney General Hector Balderas isn't wasting time preparing for a major water suit with the State of Texas. Appearing before a State House Committee recently he petitioned lawmakers for more money to fight a lawsuit filed by Texas over water rights and management of the Rio Grande.
The U.S. Supreme Court cleared the way last year for Texas to proceed with its lawsuit against New Mexico. Texas initiated the lawsuit in 2013 alleging that New Mexico has violated and continues to violate the Rio Grande Compact, an interstate water contract between Texas, New Mexico and Colorado, by allowing illegal and unauthorized diversions and use of water apportioned to Texas.
The lawsuits asks the High Court to order New Mexico to stop all illegal diversions and to compensate Texas for damages it has incurred because of New Mexico’s unlawful water-use activities.
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Balderas inherits the role of defender for New Mexico in the suit after taking over the state's AG office after former state Attorney General Gary King vacated the seat in an unsuccessful bid for Governor last November. With the pending Texas lawsuit set for arguments sometime this year, Balderas told lawmakers he would need additional resources to prepare responses to charges brought by Texas.
Under terms of the lawsuit, Texas is charging that groundwater pumping in New Mexico is tapping the shallow aquifer, causing water tables to drop and preventing water from draining back into the river. The suit alleges as a result river levels are lower than normal and prevents Texas from receiving its full share of water as required by the Compact.
In spite of attempts and a comprehensive legal brief filed by King to have the Supreme Court refuse to hear the lawsuit, the High Court ruled in favor of a Texas brief supporting claims over groundwater pumping and further agreed the Court would hear the case.
Last June, a flurry of others in Texas, including the city of El Paso, El Paso County water-improvement district, and a conservation district in Hudspeth County, joined in the case by filing additional briefs with the Court. The three claimed they could lose access to millions of gallons of water annually as a result of unauthorized groundwater pumping they say they should get under terms of the 1938 water compact.
Balderas told lawmakers that if Texas were to win the case it could create devastating consequences to communities, rural families and industry in southern New Mexico by limiting groundwater pumping needed to support drinking water projects, farming and other business and industrial water users. Even worse, losing the lawsuit could leave the state in the dangerous position of having to deliver more water down the river to the Texas line, cutting into New Mexico's allocation for water they believe was authorized by the Compact.
Under the leadership of King, the New Mexico Attorney General's office argued that the Texas lawsuit is in effect asking the High Court to serve as a trial court instead of in its normal role as an appellate court, a dangerous development that could lead to federal authorities making all water decisions over how water in rivers, lakes and streams are divided among users instead of allowing lower courts and water users to decide the fate of their local resources.
Pat Gordon, Texas' representative on the Rio Grande Compact Commission at the time the briefs were filed in 2013, said at least 2,500 wells had been drilled into the Mesilla Bolson since the compact was inked in 1938. The Mesilla Bolson aquifer runs from the Las Cruces area and terminates near the Franklin Mountains near El Paso.
"These unlawful surface-water diversions and extractions of water beneath ground have increased over time until, and in 2011 they amounted to 10,000 acre-feet annually," former Texas Attorney General and current Texas Governor Greg Abbott charged in the original complaint filed with the Supreme Court.
King responded that New Mexico and other interested parties don't dispute the drilling, but say they do not agree that it violates the tri-state water compact.
The Rio Grande Compact of 1938 was ratified by Congress in 1939. Among provisions of the original agreement, water controlled by the Rio Grande Project would be distributed to the Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1.
But in 2008, both irrigation districts filed a lawsuit against the U.S. Bureau of Reclamation over what was termed unfair distribution of water. A settlement was reached between the three parties before the lawsuit went to court.
According to that settlement, New Mexico officials claim Elephant Butte Irrigation District was to give up 150,000 acre-feet of its annual water allotment to make up for the water that was being sucked from under the river before it made it to the Texas state line.
Las Cruces, which wasn't a party to the agreement, wasn't pleased with the settlement, and claimed they were entirely dependent on the water rightsTexas was seeking to curtail. Subsequently, New Mexico filed suit with the U.S. District court in New Mexico. But that case was put on hold pending the fate of the U.S. Supreme Court lawsuit.
The U.S. Solicitor General, which argues before the court on behalf of the federal government, intervened in the case and indicated he agrees with the position offered by Texas. In so doing, it effectively rejected New Mexico's argument that state and federal courts in the state are the primary courts that should hear the case.
Balderas told New Mexico State House Committee members that the future of water in southern New Mexico largely depends on the outcome of this case and asked that the legislature not hold back support in efforts to effectively argue against the lawsuit before Supreme Court judges if and when the case is scheduled.