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U.S. judge recommends settlement over management of the Rio Grande

The dry Rio Grande riverbed is seen from the air in July 2022 in Albuquerque. (Brittany Peterson/The Associated Press
State officials say the settlement would require reducing the use of Rio Grande water

ALBUQUERQUE – A federal judge has recommended that the U.S. Supreme Court approve a settlement among three Western states over the management of one of North America’s longest rivers.

U.S. Circuit Judge Michael Melloy, the special master overseeing the case, outlined his recommendation in a report filed Monday. He called the proposal fair, reasonable and consistent with a decadeslong water-sharing agreement that spells out how Colorado, New Mexico and Texas must share the Rio Grande.

It was unclear when the Supreme Court will take up the recommendation. The court just wrapped up a busy term last week, issuing rulings on affirmative action, gay rights and President Joe Biden's $400 billion plan to cancel or reduce federal student loan debt.

The states reached the proposed settlement last year. The federal government objected for several reasons, including that the proposal did not mandate specific water capture or use limitations within New Mexico.

“The end result today may be a delay in final resolution of all of the United States’ concerns. But as a matter of paramount importance to the compact, the Texas apportionment and the treaty water will be delivered,” Melloy wrote in his report.

New Mexico officials have said implementing the settlement will require reducing the use of Rio Grande water through a combination of efforts that range from paying farmers to leave their fields barren to making infrastructure improvements.

Former New Mexico Attorney General Hector Balderas, whose office was part of the negotiations, told The Associated Press on Wednesday that he was grateful the judge recommended approval.

Balderas, who finished his tenure in 2022, said the proposed settlement was “a historic victory for New Mexico's farmers and ranchers and will protect New Mexico's most precious resource for future generations.”

Some New Mexico lawmakers voiced concerns during a recent legislative meeting, saying the settlement will create a battle between users in southern and northern New Mexico and that most farmers won't go for the prices being offered by the state through a fallowing program.

Farmers in southern New Mexico had to rely more heavily on groundwater wells over the last two decades as drought and climate change resulted in reduced flows and less water in reservoirs along the Rio Grande. That groundwater pumping is what prompted Texas to sue, claiming that the practice was cutting into the amount of water that was ultimately delivered as part of the interstate compact.

Melloy noted that the proposal recognizes the new use of a gauging station near El Paso, Texas, and several other measurements to ensure New Mexico delivers what's owed to Texas. New Mexico is agreeing to drop its challenges against Texas in exchange for clarifying how water will be accounted for as it flows downstream.

The proposal also places a duty on New Mexico to manage citizens’ water use to meet delivery requirements at the new gauging station. Melloy pointed out that the proposal does not specify how New Mexico must accomplish its internal water management goals.

State Engineer Mike Hamman, New Mexico's top water manager, said Wednesday that his office is committed to complying with the settlement and the compact “through water rights administration, depletion management and supply augmentation strategies that will prevent the burden of compliance from falling on any single sector, particularly agriculture.”

If New Mexico fails to send enough water to Texas, then the Elephant Butte Irrigation District – the largest in New Mexico – must temporarily transfer rights to an irrigation district in Texas. If Texas receives too much, there would be a similar transfer from the El Paso district to the Elephant Butte district.

Melloy said there's nothing in the proposal that protects New Mexico or users in the state against future claims from the federal Bureau of Reclamation or from other New Mexicans.

“Simply put, if usable water arrives in the reservoir, is released for use downstream, and reaches Texas and Mexico in the proper amounts,” Melloy wrote, “fights over who in New Mexico is taking too much and paying too little (and whether New Mexico itself is doing enough to address and police the situation) can be resolved somewhere other than the Supreme Court.”

Low water levels are seen at Elephant Butte Reservoir near Truth or Consequences, N.M., July 10, 2021. Susan Montoya Bryan/The Associated Press
A dam along the Rio Grande is seen near San Acacia, N.M., May 9, 2021. Susan Montoya Bryan/The Associated Press