Feds warn Rio Grande settlement could trigger disaster

By Jennifer Yachnin | 02/06/2023 04:24 PM EST

The Biden administration is seeking to block a tri-state settlement proposal in a long-running water fight.

A cyclist bikes through a mostly dry Rio Grande riverbed

A cyclist bikes through a mostly dry Rio Grande riverbed last year in Albuquerque, N.M. AP Photo/Brittany Peterson

The Biden administration on Monday urged a federal judge to reject a state-authored agreement that could end the long-running legal battle over the waters of the Rio Grande, asserting that proposal could bankrupt a major irrigation project.

The Justice Department’s warning was among a slew of objections it has raised to the proposed Rio Grande consent decree, a tentative agreement over the division of the river’s waters between New Mexico and Texas, as well as Colorado (Greenwire, Jan. 10).

The states have been locked in a legal battle in the Supreme Court since 2013, when Texas filed a lawsuit accusing New Mexico water users of shorting the Lone Star State of its fair share of Rio Grande waters under a 1938 compact.


That document governs how the river is shared between Colorado, New Mexico and Texas.

Late last year, the trio of states announced they had reached agreement on a settlement, which would create a new reporting system — incorporating temperature, groundwater pumping and river flows — to ensure Texas is receiving its full entitlement.

But the Justice Department argues that proposal would shortchange the Rio Grande Project that provides irrigation water to nearly 200,000 acres of the land. That project, managed by the Bureau of Reclamation, includes the Elephant Butte Dam and its power plant.

“The ultimate disaster with this proposed decree your honor, may be the end of the project and the function of the [irrigation] districts,” said Lee Leininger, a trial attorney in the DOJ’s Environment and Natural Resources Division at a Monday hearing in Cedar Rapids, Iowa.

“This is not hyperbole,” Leininger continued. “The mandates of the proposed decree … overrides the complex operations of the [Rio Grande] Project that ensure the releases and delivery of the project water.”

The Biden administration argues that the proposal could further drain federal reservoirs in order to meet Texas’ annual allocation, despite a more than two-decade drought that has diminished water supplies.

Leininger also argued that the settlement failed to address groundwater pumping.

In its original complaint, Texas said New Mexico allowed users to remove water from the Rio Grande Basin below Elephant Butte Reservoir — which sits about 105 miles north of the Texas border — depleting its anticipated water deliveries.

“The states should not be allowed to settle this case on the backs of the irrigation districts and the abrogation of a federal contract in the allocation of the project water,” Leininger said.

Audio from the session, overseen by Judge Michael Melloy, who serves on the 8th U.S. Circuit Court of Appeals and is also acting as special master in the Rio Grande case, was broadcast by the court.

Melloy urged the federal government and state attorneys to continue to negotiate in the case while he weighs his own decision, which could require a month or more to complete.

“We ought to be talking about a resolution before we get to that point of either approving a settlement — that you then have to go to the U.S. Supreme Court and take exceptions to — or disapproving a settlement,” Melloy said, alluding to a trial if the states and federal government fail to reach agreement.