In (Not so) Deep Water: The Texas–New Mexico Water War and the Unworkable Provisions of the Rio Grande Compact

Abstract

In the 2018 Supreme Court case, Texas v. New Mexico, Texas claimed that New Mexico breached its obligations under the Rio Grande Compact of 1938 by allowing groundwater pumping in New Mexico south of Elephant Butte Reservoir. The Rio Grande Compact is one of many interstate water compacts in the western United States. The Compact requires Colorado and New Mexico to pay river water to the respective downstream states based on 1929 river conditions. The Supreme Court jurisprudence over interstate water disputes has wavered between concepts of equity (through the Court’s power of equitable apportionment) and contract law, which makes it difficult to predict how the Court will eventually hold in the Texas–New Mexico dispute.

Regardless of how the Court holds, the underlying problem of unworkable provisions of the Rio Grande Compact will continue to present problems. Interstate water compacts have a common flaw of failing to consider changing factors that affect water availability such as decreased precipitation and snowcap runoff as well as increased temperatures, evaporation and population growth, which all result in lower river flows. The Rio Grande Compact must be amended and restructured to provide for considerations of climatic factors and changes that affect river flows and water availability. The Rio Grande Compact should borrow some concepts from the Utton Transboundary Resource Center’s Model Interstate Water Compact, but the Model Compact fails to address the important climatic factors. Without the consideration of these factors, the sustainability of interstate water resources will diminish entirely. The Rio Grande Compact and its Commission must be structured to consider these climatic factors and provide for the best interest of the Rio Grande itself as a vital and diminishing natural resource.

Keywords: rio grande, rio grande compact, new mexico, texas, mexico, river, interstate water compact, water compact, groundwater, climate change, aquifer, river, river water, sustainability, supreme court of the united states, supreme court, supreme court jurisprudence, water law, water, surface water