The U.S. Supreme Court’s decision Friday in a lawsuit between Texas and New Mexico over Rio Grande water reframes discussions in Colorado River Basin, where the threat of a similar Supreme Court action looms.
Texas and New Mexico schemed a water-sharing agreement to settle the thing, but the Department of Interior intervened to say “Nope” to the deal, and the Supreme Court said “Yup” to Interior’s “Nope,” essentially saying the federal interest in water management was sufficient to block the states’ attempt to settle their own affairs.
The Rio Grande Compact is fundamentally a contract among the three states that share the Rio Grande – Texas, New Mexico, and Colorado. (Colorado is technically a party to all of this, but the lawsuit’s a Texas versus New Mexico dispute.)
But while it’s a state-to-state thing, the Supreme Court’s rulings in this case make legally clear that the United States government has a “distinctively federal” interest in water management on the Rio Grande in southern New Mexico and Texas, parallel to the states’.
This interest arises from the federal government’s responsibilities under the legislation creating the Rio Grande Project, and the contracts flowing from that project.
To ensure that Texas receives its share of water, the Compact relies on the United States Bureau of Reclamation to operate the Rio Grande Project, an irrigation system in southern New Mexico.
So we have here a) states arguing over the meaning and interpretation of key terms of an interstate compact, and b) the federal government with a legal standing to step into that argument resulting from a “distinctively federal” interest in the outcome of that argument.
This seems analogous to the situation on the Colorado River.
First, as in the initial phases of Texas v. New Mexico, we have states in disagreement – in the Colorado River case over the meaning of Article III(d) of the Colorado River Compact, which discusses the flow of water past Lee Ferry. Is it a delivery obligation, or a non-depletion obligation?
Second, we have at least the potential for a “distinctively federal interest” flowing from the 1928 Boulder Canyon Project Act, which authorized construction of Hoover Dam and the resulting federal contracts for the delivery of water therefrom. To ensure that the Lower Basin states receive their share of the water, the Colorado River Compact relies on the United States Bureau of Reclamation to operate Hoover Dam and the irrigation and river management works downstream.
The parallel to the Rio Grande situation is striking.
If for whatever reason Colorado River management ends up at the Supreme Court when deliveries past Lee Ferry drop below a legally argued “delivery obligation,” it would be consistent for Interior to assert a federal interest in ensuring that flows from the Upper Basin are sufficient to meet the requirements of the federal government’s “distinctively federal interest.”
It also would be consistent for the U.S. Supreme Court to be OK with that.
That would be bad for an Upper Basin being squeezed by climate change.
I am Not a Lawyer
There’s a legal tangle in the decision’s footnotes that I don’t understand, but that’s probably important. In the Rio Grande case, Texas filed suit, and the U.S. government intervened. Might the federal government have standing to initiate a lawsuit if the deliveries at Lee Ferry cross the tripwire? From said footnote tangle:
As with our 2018 decision, today’s opinion says nothing about whether the United States could have initiated a Compact suit on its own.
I am a writer
While I am not a lawyer, I am enough of a water writer to have been charmed by the cheesy use of water imagery in the ruling. My favorite bit:
Conventional wisdom posits that, because time changes all things, no one can step into the same river twice.
My original joke here was going to be about my disappointment that Justice Jackson didn’t cite to Heraclitus. But then upon further research (You didn’t think I’m just wingin’ it here, did you? You’re payin’ good money for this blog, I do my research!) I find that there is question about whether Heraclitus really said it.
Revised joke:
I’m just disappointed that Justice Jackson didn’t cite to Wittgenstein.
A “distinctively federal interest?” Oh, yeah, indeed. The 1963 USSC Decree in AZ v. CA definitively apportioned Colorado water between CA and AZ. The 1968 CRBPA changed that apportionment through Congressional approval of the CAP, in frankly, contravention of the 1963 USSC Decree. The genesis of that reapportionment is an assessment by the U.S. Solicitor General Marshall Thursgood, later Supreme Court Justice. His assessment was, in short, that the entire Colorado River Basin was so immersed in federal projects and interests it essentially belonged to the U.S. and the Decree didn’t really control. Some attorneys who carefully look at Marshall’s assessment consider it laughable and an affront on the Separation of Powers. No one complained because of the huge money involved, and the ensuing political energies weren’t about to head back to SCOTUS. The precedent was firmly set in 1968 for Federal control of New Mexico water that is evidenced in this latest SCOTUS finding.
A “distinctively federal interest?” Oh, yeah, indeed. The 1963 USSC Decree in AZ v. CA definitively apportioned Colorado River water between CA and AZ. The 1968 CRBPA changed that apportionment through Congressional approval of the CAP, in frankly, contravention of the 1963 USSC Decree. The genesis of that reapportionment is an assessment by the U.S. Solicitor General Marshall Thursgood, later Supreme Court Justice. His assessment was, in short, that the entire Colorado River Basin was so immersed in federal projects and interests it essentially belonged to the U.S. and the Decree didn’t really control. Some attorneys who carefully look at Marshall’s assessment consider it laughable and an affront on the Separation of Powers. No one complained because of the huge money involved, and the ensuing political energies weren’t about to head back to SCOTUS. The precedent was firmly set in 1968 for Federal control of New Mexico water that is evidenced in this latest SCOTUS finding.
John, I think the more likely outcome regarding Federal intervention on the Colorado River would be for Reclamation to decide NOT to deliver enough water to comply with the Lee Ferry “obligation”. I doubt that Reclamation would willingly release water from Powell if it means dropping below minimum power pool and losing the $150M or so in revenue that generates each year. The UB States will surely protest (at least publicly), but it would be difficult to pin the blame for such a shortfall on them, particularly given that Hydropower is by law (see CRSPA) subordinated to other uses. Under such a scenario, there would still be plenty of water in storage to meet a compact shortfall – at least initially – but a Federal agency unwilling to make it happen.