The Water Wars Are Here, Sort of

It is an inconvenient fact for a number of states in the American West that, in its liquid state, water moves, while political boundaries do not. At the moment this is particularly true for Texas, which exists at the unfortunate confluence of two facts: it is growing very quickly, and according to those who study climate change, becoming increasingly hot and dry.

(It's actually not as dry as it was in the 15th and 16th centuries, but let’s agree to speak only of the weather in recent memory.)

In the past two years, the Supreme Court of the United States of America has made two critical decisions regarding the supply of water to Texas. The first is its 2013 ruling in favor of the state of Oklahoma in Tarrant and Hermann et al, which I have previously addressed. The second is the court's decision to hear a case in which Texas is suing New Mexico because it believes it is being shortchanged on water under the Rio Grande Compact of 1938.

A particularly notable aspect of this case, Texas v. New Mexico and Colorado, is that it was filed, in January of 2013, in the Supreme Court without first being heard in a lower court—in other words in this case the Supreme Court is the "original jurisdiction," instead of an appellate body.

The Court will only consider that type of case if it meets a fairly specific set of criteria. First, there must be no sufficient alternative forum, which is the case for disputes between states party to a compact. Second, that the dispute is between two sovereign or quasi-sovereign entities—not individuals or agencies; in this case the Texas Commission on Environmental Quality, on behalf of the state of Texas, is suing the state of New Mexico. 

The third criterion is that the dispute must be one of sufficient seriousness that if those states were sovereign nations, they would go to war over it. 

So, at least in theory, the Supreme Court believes that Texas might declare war on New Mexico over this particularly section of the Rio Grande, and in theory, Texas feels the same way.

There has always been only a small amount of water in the American West, but in recent centuries there has been a great deal of farming, and, in recent decades, a large number of people. The United States government has had a heavy hand in those last two developments, and to support them has built enormous dams and lots of pipelines and countless irrigation systems. Because, once again, water tends to move between states, the government has also approved numerous interstate water compacts, with varying levels of success.

The agreement at hand is the Rio Grande Compact of 1938, under which the State of Colorado is required to deliver a certain amount of water from the Rio Grande to the State of New Mexico, which impounds some of it in the Elephant Butte Reservoir, which is just west of White Sands Missile Range. At this point the Bureau of Reclamation divides the water between two irrigation districts, one in New Mexico and one in Texas. The compact was designed to fairly distribute water to farmers in southern New Mexico and West Texas, although at this point El Paso needs that water too. 

(It's worth noting that the population of New Mexico in 1940 was 531,000; today it is 2,860,000. The population of Texas in 1940 was 6,425,000; today it is 26,960,000.) 

The whole dispute is over the 90-mile section of the river between Elephant Butte and the border between New Mexico and Texas, right around El Paso.

The issue is that all of the 90 miles are in New Mexico, meaning that water belonging to Texas has to make its way past a number of New Mexican farmers that, as it is, do not have enough water for their farms. Both before and after the compact was signed, farmers have been allowed, by the state of New Mexico, to drill wells on their property, augmenting their own supply, but possibly using water belonging to Texas to do so. 

The suit alleges that, by permitting groundwater pumping between Elephant Butte Reservoir and the Texas state line, New Mexico is abetting the depletion of groundwater and therefore a reduction of water that is supposed to get to Texas.

New Mexico has sort of been able to get away with this because the Rio Grande Compact is not all that specific, nor does it explicitly address groundwater. The amount of water New Mexico must deliver to Texas is not actually an amount, it is a percentage: 43 percent of the Elephant Butte water goes to Texas and 57 percent to New Mexico, based on the ratio of irrigated farmland. 

Texas says the division by the percentage is done at Elephant Butte, and at that point, the amount of water going to Texas is fixed, and any groundwater pumping by New Mexicans after that point is, basically, stealing. New Mexico holds that the percentage is what matters, and what happens within its borders is under the jurisdiction of state law.

That the Supreme Court has agreed to hear the case is a boon for Texas, though the state must have been somewhat optimistic as they set aside $5 million in the 2014 budget to pursue the case.

That optimism was not unwarranted. In the past, of the water-related cases that were filed directly to the Supreme Court, those that have been heard are ones that resolve disagreements over apportionment, enforce interstate compacts, declare rights under a compact, or involve a river that divides two states. 

(The federal government also backs Texas, having joined the state as a plaintiff in early 2014. That subject, however, is for another post.)

Population growth and drought will continue to inspire legal battles over these interstate compacts; it’s possible that the Supreme Court agreed to hear this case in order to begin establishing precedent for these disputes.

Of course there has to be water to fight over, and that's not really a given. For all the fighting over the Elephant Butte Reservoir, much of the American West has been in drought on and off for literally eons, but also in the last decades, and there is not all that much water even when there isn't a drought. If the federal government had not funded those giant water projects in the middle of the last century, settlement of the American West would look a lot different. (Air conditioning also played a big part.)

In 2013, when Court decided to hear Texas v. New Mexico and Colorado, Charles DuMars offered this pithy but not untrue remark to The Los Angeles Times: "If there is adequate snowpack for two or three years in a row and they can fill Elephant Butte, then it's OK. But all the injunctions in the Supreme Court are not going to create snow."