Supreme Court Rio Grande ruling could ripple through other water cases

By Jennifer Yachnin | 06/21/2024 01:39 PM EDT

The decision “changes the landscape of future interstate water cases and our ability to settle them between states,” said one lawyer.

Rafts piloted by guides emerge from Heath Canyon, carved by the Rio Grande through Big Bend National Park, Texas.

Rafts piloted by guides emerge from Heath Canyon, carved by the Rio Grande through Big Bend National Park in Texas. Michael Graczyk/AP

This story was updated at 5:15 p.m. EDT.

The Supreme Court’s new ruling that rejected a state-authored settlement in the long-running legal battle over the Rio Grande could bolster the federal government’s position in negotiations over other Western waterways — including the Colorado River.

The court Friday ruled 5-4 in favor of the Biden administration to rebuff the proposed settlement among the three Western states named in Texas v. New Mexico and Colorado over how to account for water use in the Rio Grande River Basin.


“Our decision today follows directly from our prior recognition of the United States’ distinct federal interests in the Rio Grande Compact,” wrote Justice Ketanji Brown Jackson, who led the majority opinion. “Having acknowledged those interests, and having allowed the United States to intervene to assert them, we cannot now allow Texas and New Mexico to leave the United States up the river without a paddle.”

Jackson was joined by Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan and Brett Kavanaugh.

The decision sends the case back to Judge Michael Melloy of the 8th U.S. Circuit Court of Appeals, who is acting as special master overseeing the Rio Grande case. Officials for Texas, New Mexico and Colorado could opt to reopen negotiations with the Justice Department and various state water districts, or the case could resume a trial that had halted in early 2022 to make way for settlement talks.

Colorado Attorney General Phil Weiser (D) indicated Friday that the states will continue to work together.

“While I disagree with that finding and the court’s holding, it cannot change the fact that three states have already resolved their dispute under the Compact and are interested in ending this litigation,” Weiser said. “To that end, I remain committed to working with Texas and New Mexico to develop a path forward that ends this dispute as expeditiously as possible.”

New Mexico Attorney General Raúl Torrez (D) likewise said he was dissatisfied with the Supreme Court’s ruling.

“We are even more disappointed that the federal government would stand in the way of an equitable resolution of a decades-long case that neither Texas nor New Mexico wish to continue,” Torrez said. “This decision will result in millions more spent on legal fees and more uncertainty for New Mexico’s water users, all because the Interior Department feels the need to dictate how New Mexico meets its obligations to the State of Texas.”

He added: “It’s a sad day when two western states are able to resolve a generational dispute over water only to have that deal undermined by lawyers and bureaucrats in Washington D.C.”

The office of the Texas attorney general did not immediately respond to request for comment on the Supreme Court’s ruling or next steps in the case.

Samantha Barncastle, general counsel of the Elephant Butte Irrigation District, which had opposed the settlement, said she is hopeful that negotiations can continue.

“We remain committed to the process. This means that we all still need to roll up our sleeves and work a little harder to get to a settlement,” Barncastle said. “The states have now been told they can’t do this without us.”

Texas officials filed the lawsuit in the Supreme Court in 2013, accusing New Mexico water users of shorting the Lone Star State of its fair share of Rio Grande waters under a 1938 compact. That 1938 agreement divides the Rio Grande, which emerges from the southern Colorado Rockies and runs into New Mexico and then to Texas, where it forms the border with Mexico.

The compact dictates that Colorado delivers Rio Grande water to the New Mexico border, and New Mexico then delivers water to the Elephant Butte Reservoir, which sits about 100 miles north of the Texas border. Increased groundwater pumping in that stretch prompted Texas to argue that it was not receiving its full share of the river’s waters.

The settlement decree would have mandated a new reporting system, including a new water gauge near El Paso, Texas, and recordings of groundwater pumping and river flows.

But the Biden administration objected to the deal, citing concerns about how the new conditions would affect operations of the Elephant Butte Dam and Reservoir and other federal facilities along the Rio Grande.

Gage Zobell, a partner at the firm Dorsey & Whitney who practices water law, said observers are waiting to see how Reclamation will use the Supreme Court ruling to seek greater concessions on water measurement and groundwater usage.

“The new precedent set today changes the landscape of future interstate water cases and our ability to settle them between states,” Zobell said.

‘Veto power’

Justice Neil Gorsuch, who led the court’s dissent, criticized his colleagues in the majority for rejecting an agreement reached by states.

“It is hard to imagine anything that might do more to expand the scope of this dispute than forcing the States to continue to litigate when they have already resolved their differences,” Gorsuch wrote.

His dissent was joined by Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett.

Gorsuch went on to warn that siding with DOJ could give the federal government “veto power” over future disputes between states on water compacts, the agreements that govern how large bodies of water across the West are divided between competing users.

“In light of the veto power the Court seemingly awards the government over the settlement of an original action, what State in its right mind wouldn’t object to the government’s intervention in future water rights cases?” Gorsuch wrote.

“If, as happened here, even heavily caveated permission to intervene may end up federalizing an interstate dispute, what State (or Court) would ever want to risk letting the nose make it under the tent?” he continued. “In that way, too, 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.”

Colorado River

Before Friday’s ruling, legal observers had suggested that a decision granting the federal government new power to control the flow of water in drought-stricken regions would be of particular note, given ongoing negotiations over the long-term operating plan for the Colorado River.

A series of existing agreements for management of the Colorado River — which is shared by Arizona, California, Colorado, Utah, Nevada, New Mexico and Wyoming — will expire at the end of 2026. The seven states are currently negotiating a new deal along with federal officials.

James Eklund, Colorado’s former top water official, predicted the Supreme Court’s decision in the Rio Grande case stands to strengthen the federal government’s “already substantial role” in brokering interstate water agreements.

“Beyond the obvious impact to the Rio Grande interstate negotiations, it comes at a critical time on the Colorado River where the basin states have been unable to reach agreement on river operations and recent federal attempts to push them toward agreement have been unsuccessful,” said Eklund, who leads the water and natural resources practice at the law firm Sherman & Howard.

He added: “The opinion carries outsized implications on the Colorado River where the federal interests include not only the largest reservoirs on the nation but also 30 sovereign tribes to which the federal government owes a trust responsibility.”