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Settlement deadline looms in Supreme Court case over Rio Grande water

The rock formation that gave Elephant Butte Reservoir its name, with bathtub rings showing critically low water levels. (Photo by Corrie Boudreaux/El Paso Matters)
Texas claims New Mexico shorted its share of the water by pumping groundwater

An agreement to resolve the pending U.S. Supreme Court dispute over Rio Grande water is approaching its “drop-dead” date of Sept. 23, even as parties described “choppy waters” in the efforts for a settlement.

A settlement would resolve the nearly decade-old lawsuit in which Texas alleged New Mexico’s pumping of groundwater below Elephant Butte shorts Texas’ share of Rio Grande water, and violates the 1938 agreement to share the water. The lawsuit has cost New Mexico and Texas taxpayers tens of millions of dollars, and a trial would extend the time and raise the costs.

At a virtual status hearing Tuesday, Special Master Judge Michael Melloy, a U.S. Circuit judge, ordered the parties to confidentially share settlement drafts with all involved attorneys by the end of next week to prepare an agreement for the deadline.

Attorneys representing New Mexico, Texas, the federal government and Colorado – the primary parties in the case – said Texas submitted a draft settlement document regarding its allegations against New Mexico.

Confidential talks outlining the broad strokes of the agreement have included irrigation districts, city governments and local utilities over the past few months, said Lee Leininger of the U.S. Department of Justice.

“We continue to make progress,” Leininger said. “There’s choppy waters, but we are continuing the course.”

Negotiations continue, however, on the roles between the federal government, the state of New Mexico, and parties such as the cities of Albuquerque, Las Cruces, the Elephant Butte Irrigation district, and other “intrastate” issues are still being ironed out.

Leininger said the federal government expects a final draft for review by the agreed deadline of Sept. 23, which would be sent for review and require approval from the top officials at the DOJ. Other attorneys said they could get signatures approving the document “within a matter of weeks, not months.”

The document will most likely not be made public until all parties signed and agreed upon it.

The back-and-forth

Only attorneys from the involved states and the federal government have seen the draft agreement, due to confidentiality agreements during negotiations.

Jeff Wechsler, New Mexico’s lead attorney, said all involved were kept up to date on the settlement’s impact.

Attorneys for the groups outside of the case, such as irrigation districts, municipalities and farming associations, said they wanted greater inclusion in the draft settlement agreement or technical discussions on the “intrastate” New Mexico issues. These groups are not a party to the lawsuit, but offer the court information and insight that has bearing on the case – called amici curiae, or “friends of the court.”

Any plan to change deliveries of water from New Mexico to Texas has to include El Paso irrigators, said Maria O’Brien, who is representing El Paso County Water Improvement District No 1.

“Words matter,” O’Brien said. “We have not seen an outline, we have not seen a draft, we don’t have all the different pieces.”

Samantha Barncastle, the attorney for Elephant Butte Irrigation District, urged confidentiality of the draft agreements, saying that a draft leak could be “inflammatory if they reach the streets on the Lower Rio Grande.”

“If we see drafts leaking out, I worry that certain people might take certain actions in response to those drafts,” she said.

Melloy ordered the states and federal government to allow the amici attorneys to access the drafts no later than Sept. 2, after signing confidentiality agreements. This allows attorney’s to read the drafts and discuss them with their clients, but not give out copies at this time.

Stuart Somach, the lead attorney for Texas, described remaining “hopeful, but skeptical” about settlement prospects. Somach said he is still waiting for comments from the federal government and negotiating language with Colorado.

“If there’s no agreement by Sept. 23, Texas is going to walk away from the negotiation table and (turn) our attention to trial,” Somach said.

If there’s no agreement, Somach urged Melloy to schedule a trial as soon as December, adding “I don’t know that you could resolve this case for a settlement without the state of Texas being on board.”

Parties will appear before Melloy in-person Sept. 27, after the deadline.

“We’ll either talk about how we’re going to get the settlement approved and to the Supreme Court, or we’re going to talk about trial mechanics,” Melloy said.

This article first appeared on El Paso Matters and is republished here under a Creative Commons license.

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