Amicus Curiae Brief — Texas v. New Mexico (No. 141)

RECORD No. 220141 Original

+ AND Oe

BRIEFS Iu The

Supreme Court of the Anited States

a

STATE OF TEXAS,

Plaintiff,

Vv.

STATE OF NEW MEXICO and

STATE OF COLORADO,

Defendants.

a

—

On Motion For Leave

To File Bill Of Complaint

+

BRIEF OF AMICUS CURIAE EL PASO COUNTY

WATER IMPROVEMENT DISTRICT NO. 1 IN

SUPPORT OF THE STATE OF TEXAS’ MOTION

FOR LEAVE TO FILE COMPLAINT

¢

JAMES M. SPEER, JR.*

300 East Main Street, Suite 1032

El Paso, Texas 79901

915-534-7393

jmspeer@htg.net

MARIA O’BRIEN

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL, HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87103

505-848-1800

mobrien@modrall.com

sms@modrall.com

*Counsel of Record

March 2013

—

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 Library of Cones

Law Librery

i

TABLE OF CONTENTS

Page

a I ss saa siemnnsiateaninnndinedennsiliéimbonie iil

a aaaabipiaaaeebieehs 1

Interest of the Amicus Curiae .....................0-0000+- 5

i a ccnisencn ection iwesontedansoas 10

PEELE ELE a a cee ner 11

I. The Texas Complaint Asserts Serious and

Dignified Claims Which are Within this

Court’s Original and Exclusive Jurisdic-

Pi thatcucacdannscimnaiaiaiiiadadnibibinrabinsemeniinascivanas 12

Il. There are No Alternative Forums in

Which Texas Can Seek Relief with Re-

gard to the Claims Asserted in its Com-

SII cas nidasinsctnineiudiblieep indidjaieetiibnichideidisnon nilclasibsaiaaingimss 18

A. The Rio Grande Compact Commission

is Not an Alternative Forum for the

Claims Stated in Texas’ Complaint..... 18

B. Federal District Court is Not an AIl-

ternative Forum for the Claims Stat-

ed in Texas’ Complaint........................ 19

C. The General Stream Adjudication in

New Mexico State Court is Not an Al-

ternative Forum for the Claims Stat-

ed in Texas’ Complaint........................ 21

SS NE IERIE pp EN ESD OER BAR ot 23

li

TABLE OF CONTENTS -— Continued

Page

APPENDIX

Certificate of Adjudication No. 23-5940, Texas

Commission on Environmental Quality

GIS Fs POD secnsccstiiscsiecscnsnteneiniinascscdbanaamnaae App. 1

ili

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Arizona v. California, 460 U.S. 605 (1983)................ 21

Arizona v. San Carlos Apache Tribe of Ariz.,

sin ccc ccenkdnnnnuescnndnenninnssessccceses 21

Colorado v. New Mexico, 459 U.S. 176 (1982)........... 17

Dugan v. Rank, 372 U.S. 609 (1963)... eee 22

El Paso Cnty. Water Improvement Dist. No. 1 v.

City of El Paso, 133 F. Supp. 894 (W.D. Tex.

1955) aff’d as modified, 243 F.2d 927 (5th

li iain dn a sicinahamilaepiieneigeabesesnnsecazecces 5

El Paso Cnty. Water Improvement Dist. No. 1 v.

Elephant Butte Irrigation Dist., et al., No.

EP07CA0027 (W.D. Tex. 2007) ................2..ceeeeeeeseeees 8

Illinois v. City of Milwaukee, 406 U.S. 91 (1972)...... 11

Kansas v. Colorado, 185 U.S. 125 (1902)................... 12

Kansas v. Colorado, 514 U.S. 673 (1995)................... 15

Kansas v. Nebraska, 527 U.S. 1020 (1999)................ 15

Kansas v. Nebraska, 530 U.S. 1272 (2000)................ 15

Maryland v. Louisiana, 451 U.S. 725 (1981)....... 20, 21

Mississippi v. Louisiana, 506 U.S. 73 (1992) ...11, 19, 20

Montana v. Wyoming, ___ U.S. __, 131 S. Ct.

i clupnemuetie 15

Nebraska v. Wyoming, 325 U.S. 589 (1945)............... 12

Nebraska v. Wyoming, 515 U.S. 1 (1995)................... 15

lv

TABLE OF AUTHORITIES — Continued

Page

New Mexico v. U.S. Bureau of Reclamation, et

al., CIV-11-691-JB/ACT (D.N.M.)............cccceeeeeeeeeeeee 9

Nw. Austin Mun. Utility Dist. No. 1 v. Holder,

Se ee ace ceonettiinciiannsisiialsceniasentsiblghatelinnaensicnediiia 1

S. Carolina v. Regan, 465 U.S. 367 (1984) ................ 12

Texas v. Colorado, 389 U.S. 1000 (1967)................006 15

Texas v. Florida, 306 U.S. 398 (1939) .................00..0 22

Texas v. New Mexico, 296 U.S. 547 (1935)................. 15

Texas v. New Mexico, 343 U.S. 932 (1952)................. 15

Texas v. New Mexico, 462 U.S. 554 (1983)....11, 12, 19, 22

Texas v. New Mexico, 482 U.S. 124 (1987)........... 17, 20

Wyoming v. Colorado, 298 U.S. 573 (1936)................ 12

REPORTS OF SUPREME COURT SPECIAL MASTERS

Montana v. Wyoming, No. 137 Orig., First

Interim Report of the Special Master, 2010

WL 4111634 (Feb. 10, 2010) ......0.0. eee 21

STATE CASES

Bennett v. Brown Cnt’y Water Improvement

Dist. No. 1, 272 S.W.2d 498 (Tex. 1954) ......... ee. 1

In re: Adjudication of all Claims of Water

Rights in the Upper Rio Grande (above Fort

Quitman, Tex.) Segment of the Rio Grande

Basin, No. 2006-3291 (327th Jud. Dist. Tex.,

, cietnnetsiciovicundosbinbibietsnincsinnitenninictienneiats 8

Vv

TABLE OF AUTHORITIES — Continued

Page

New Mexico ex rel. N.M. State Eng’r v. Ele-

phant Butte Irrigation Dist., et al., No. CV-

96-888, SS-97-104 (Third Jud. Dist. Ct.,

REISE EES ay OE SOIC PRS REIS Rita es ade rR La OS 9g

FEDERAL CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, COMPACTS & RULES

ES ERIE aD aes er en OY ee 10, 11

Convention with Mexico for the Upper Rio

Grande, 34 Stat. 2953 (1906)...............cccccccssssersssseees 6

gf SRS EAR a me es ee ee 10, 11, 19

NN i hie ae ccna nes dicen scinabenipneniindenbaiaia 6

II TTI idles siateincsinca da uihatidschentnamataiinedincnassansnibbeidns 5

Reclamation Act of 1902, 32 Stat. 388 (June 17,

Sidi nicthdcnnnsecedsddsudaddseaindittndaam nal cniabiamenonenes 6,13

Enabling Act, ch. 310, 36 Stat. 557 (1910) ................ 13

Rio Grande Project Act, Act of February 25,

Ry Gs Fy Oe Cs Bo vvninneceevsinvescsosoccecess passim

Rio Grande Compact, Act of May 31, 1939, ch.

BIEL: TI ac hasnniirsnccestupdeddidesercammaicnians passim

SI Ss Se TT iibichiesbdetneincinsdalinteuishindeciancedantuscacenuibiebiniaianimmaiats 1

STATE CONSTITUTIONAL PROVISIONS & STATUTES

pO a na 5,7

vi

TABLE OF AUTHORITIES — Continued

Page

nn. cass ealicuensasbameneniens 7

is CE Or SI acti ectineiccnoinaictesiccmonersseniniiancines 5

OTHER SOURCES

The Federalist, No. 80 (Scott ed., 1898) .................00 12

The Federalist, No. 81 (Scott ed., 1898) .................... 18

1

BRIEF FOR EL PASO COUNTY WATER

IMPROVEMENT DISTRICT AS AMICUS CURIAE

This amicus curiae brief by El Paso County

Water Improvement District No. 1 (*“EPCWID”), a

political subdivision of the State of Texas, is filed by

its authorized law officer in support of the State of

Texas’ Motion for Leave to File Complaint (“Motion”)

pursuant to Supreme Court Rule 37.’

+

INTRODUCTION

Texas’ Motion should be granted. Texas brings to

this Court a significant, serious, and dignified dispute

regarding the State of New Mexico’s violations and

misinterpretations of the Rio Grande Compact, an

interstate water compact between Texas, New Mexi-

co, and the State of Colorado. Act of May 31, 1939, ch.

155, 53 Stat. 785 (“Rio Grande Compact”). The Rio

Grande Compact was designed to protect the opera-

tional integrity of the Rio Grande Reclamation Pro-

ject, a federal interstate reclamation project (“Rio

Grande Project” or “Project”), which assures delivery

* Counsel of record for all parties received notice at least

ten days prior to the due date of the amicus curiae’s intention to

file this brief. EPCWID is a Texas political subdivision, equiva-

lent to a county, see Bennett v. Brown Cnt’y Water Improvement

Dist. No. 1, 272 S.W.2d 498, 500 (Tex. 1954); see also Nw. Austin

Mun. Utility Dist. No. 1 v. Holder, 557 U.S. 193, 206 (2009), and

therefore, pursuant to Rule 37.4 of this Court, files this brief as

amicus curiae without seeking the consent of the parties or

order of the Court.

2

of the water apportioned to Texas under the Rio

Grande Compact. As one of two beneficiaries of the

Rio Grande Project, EPCWID has a unique and vital

interest in this Court’s resolving the interstate dis-

pute between Texas and New Mexico with regard to

the waters of the Rio Grande. Without this Court’s

review of the claims raised in Texas’ Complaint, New

Mexico’s violations and misinterpretations of the Rio

Grande Compact would remain unaddressed. Absent

such review, the water to which Texas is entitled will

not be available to EPCWID, and EPCWID will not

be able to supply water to its users, or its supplies

would be drastically reduced. The water users of

EPCWID include thousands of farmers, the munici-

palities of Canutillo, Anthony, Socorro, and Clint,

Texas, and the City of El Paso, Texas, with a popula-

tion of approximately 800,000 and which provides

water to many public and private schools, hospitals,

the University of Texas at El Paso, the Texas Tech

University Medical School, and the Lower Valley

Water District. Without an adequate water supply

EPCWID and its users will suffer irreparable injuries

and damages.

In its Complaint, Texas prays that this court:

1. Declare the rights of the State of Texas

to the waters of the Rio Grande pursuant to

and consistent with the Rio Grande Compact

and the Rio Grande Project Act;

2. Issue its Decree commanding the State

of New Mexico, its officers, citizens and polit-

ical subdivisions, to: (a) deliver the waters

of the Rio Grande in accordance with the

3

provisions of the Rio Grande Compact and

the Rio Grande Project Act; and (b) cease and

desist all actions which interfere with and

impede the authority of the United States to

operate the Rio Grande Project;

3. Award to the State of Texas all damages

and other relief, including pre- and post-

judgment interest, for the injury suffered by

the State of Texas as a result of the State of

New Mexico’s past and continuing violations

of the Rio Grande Compact and the Rio

Grande Project Act; and

4. Grant all such other costs and relief, in

law or in equity, that the Court deems just

and proper.

Complaint, State of Texas v. States of New Mexico and

Colorado, No. 220141 ORG (filed Jan. 8, 2013)

(“Complaint”), at pp. 15-16.

Texas alleges, in pertinent part, that New Mexico

has violated and misinterpreted the Rio Grance

Compact in two fundamental respects: (1) by allow

the interception and conversion of Rio Grande wat

in New Mexico after it has been released from Ele-

phant Butte Dam for use by downstream users in

Texas, including EPCWID, under the Rio Grande

Compact, Complaint at 94 18-19; and (2) by interfer-

ing with and attempting to control the operation of

the Rio Grande Project by the United States Bureau

of Reclamation (“Bureau of Reclamation”) in contra-

vention of the Rio Grande Compact, the Rio Grande

Project Act, and a 2008 Operating Agreement among

4

the United States, the Elephant Butte Irrigation

District (““EBID”), and EPCWID, Complaint at {J 20-

21. The Rio Grande Compact requires New Mexico to

deliver specified amounts of Rio Grande water into

Elephant Butte Reservoir, the primary storage reser-

voir for the Rio Grande Project. Rio Grande Compact,

Art. IV. Upon delivery to Elephant Butte Reservoir,

“that water is allocated and belongs to the Rio

Grande Project beneficiaries in southern New Mexico

and in Texas, based upon allocations derived from the

Rio Grande Project authorization and relevant con-

tractual arrangements.” Complaint at { 4.

The basis for the dispute — that New Mexico is

depriving Texas of a water supply under an interstate

compact apportioning the waters of an interstate

stream — is a fundamental sovereign interest this

Court has repeatedly recognized as sufficiently seri-

ous and dignified to support exercise of the Court’s

original jurisdiction. The interstate nature of the

dispute requires that all signatory states be brought

before this Court, which alone has exclusive and

original jurisdiction over interstate disputes. No

alternative forum exists which has jurisdiction over

the three signatory states to the Rio Grande Compact

and in which complete relief can be afforded regard-

ing Texas’ claims. Absent relief in this Court,

EPCWID irrigators and municipal users in western

Texas will continue to suffer deprivation of the water

supply to which they are entitled to the great detri-

ment of the economy of western Texas and the well-

being and livelihoods of its inhabitants.

Sf

5

INTEREST OF THE AMICUS CURIAE

EPCWID is a political subdivision of the State of

Texas, organized under the Texas Constitution. Tex.

Const. Art. XVI, §59. EPCWID provides water for

irrigation and municipal uses (pursuant to contracts

entered into, with the approval of the Secretary of

Interior, in accordance with 43 U.S.C. § 521). There

are 69,010 acres of lands within EPCWID which are

classified as irrigable. EPCWID provides, on average,

over fifty per-cent of the annual water supply of the

City of El Paso from EPCWID’s allocation of Rio

Grande Project water. Located in a part of the United

States with an average rainfall of eight inches per

year, EPCWID’s users are dependent on Rio Grande

water apportioned to Texas, and allocated to

EPCWID through the Rio Grande Project, for irriga-

tion, crop production, and municipal uses. EPCWID

was organized to “distribute and apportion all water

acquired by the district under a contract with the

United States in accordance with acts of Congress,

rules and regulations of the secretary of the interior,

and provisions of the contract.” Tex. Water Code

§ 55.364. EPCWID is one of the two Rio Grande

Project beneficiaries in the United States below

Elephant Butte Dam and above Fort Quitman, Texas;

the other is EBID, serving southern New Mexico

water users. See El Paso Cnty. Water Improvement

Dist. No. 1 v. City of El Paso, 133 F. Supp. 894, 914

(W.D. Tex. 1955), aff’d as modified, 243 F.2d 927 (5th

Cir. 1957) (internal footnotes omitted) (stating

EPCWID is a political subdivision of the State of

6

Texas, and EPCWID “is not only an arm of the State,

but is fashioned to perform public service and duties

of high importance to the welfare of the people of

Texas”).

The Rio Grande Project was authorized in 1905

for the purpose of supplying irrigation water to EBID

in southern New Mexico and EPCWID in western

Texas, and pursuant to international treaty, to Mexi-

co. Act of February 25, 1905, ch. 798, 33 Stat. 814

(extending the Reclamation Act of 1902, 32 Stat. 388

(June 17, 1902) (codified as amended at 43 U.S.C.

§ 371, et seq.) (“Reclamation Act”) to Texas and au-

thorizing the construction of what is now Elephant

Butte Dam to provide water for irrigation in Texas

and New Mexico) (“Rio Grande Project Act”); Conven-

tion with Mexico for the Upper Rio Grande, 34 Stat.

2953 (1906). The Rio Grande Compact was designed

to ensure that the Project remained viable by requir-

ing New Mexico’s Rio Grande Compact deliveries into

the Project at Elephant Butte Reservoir, where the

water delivered would become Project water to be

allocated and delivered by the Bureau of Reclamation

to the Project beneficiaries.

EPCWID’s predecessor, the E] Paso Valley Water

Users’ Association (“Association”), was created to

facilitate the implementation of the Rio Grande

Project in 1905, following Congressional authoriza-

tion of the Project. The Association entered into

contracts with the United States for repayment of

construction costs associated with the Rio Grande

Project, and for water supply. EPCWID was created

7

in 1917, through an election called by the El Paso

County Commissioner’s Court pursuant to Article

XVI, Section 59(b) of the Texas Constitution, which

provides for the creation of conservation and reclama-

tion districts that “shall be governmental agencies

and bodies politic and corporate with such powers of

government and with the authority to exercise such

rights, privileges and functions.” The United States

entered into a contract dated December 29, 1917,

with EPCWID and the Association, and, thereafter,

the Association was dissolved. In 1920, EPCWID

merged with the El Paso County Conservation and

Reclamation District No. 2, with the merged district

known as EPCWID.

EPCWID is authorized to enter into contracts

with the United States, Tex. Water Code § 55.185,

and provides water to its users pursuant to its au-

thority under Texas law and contracts with the

Bureau of Reclamation. These contracts concern

allocation, delivery, and repayment costs related to

EPCWID’s water from the Rio Grande Project.

EPCWID has a contract with EBID, approved by the

United States, dated February 16, 1938, which pro-

vides in part that 67/155th of the Rio Grande Project

water is to be distributed to EPCWID, and 88/155th

to EBID. In 2007, EPCWID filed a lawsuit in the

Western District of Texas against EBID and the

Bureau of Reclamation, seeking to enforce the obliga-

tions of the United States to allocate and deliver

EPCWID’s Project water. El Paso Cnty. Water Im-

provement Dist. No. 1 v. Elephant Butte Irrigation

8

Dist., et al., No. EPO7CA0027 (W.D. Tex. 2007).

EPCWID requested that the court declare the con-

tractual obligations of the United States and compel

the United States to allocate and deliver Project

water in accordance with the Rio Grande Project Act

and the contracts between and among EPCWID,

EBID, and the United States. The litigation culmi-

nated in a settlement agreement which included an

operating agreement for the Project (“2008 Operating

Agreement”) which establishes a method for the

Bureau of Reclamation to allocate and deliver Project

water released from Elephant Butte Dam. The Unit-

ed States currently delivers Project water to EBID,

EPCWID, and Mexico in accordance with the 2008

Operating Agreement. New Mexico's violations of the

Rio Grande Compact by allowing depletions of Project

water in New Mexico below Elephant Butte Reservoir

to which EBID, EPCWID, and Mexico are entitled,

and interference with the operation of the Project by

the United States has and will continue to have

detrimental effects on the continued viability of the

Rio Grande Project and on the 2008 Operating

Agreement.

EPCWID’s rights to water in the Rio Grande

Project were adjudicated in a final decree in Jn re:

Adjudication of all Claims of Water Rights in the

Upper Rio Grande (above Fort Quitman, Texas)

Segment of the Rio Grande Basin, No. 2006-3291

(327th Jud. Dist. Tex., October 30, 2006). The United

States (through the Bureau of Reclamation) is a joint

owner with EPCWID of the water rights adjudicated

9

in Texas to the United States and EPCWID. The

Texas Commission on Environmental Quality, on

March 7, 2007, issued a Certificate of Adjudication

pursuant to the final decree, authorizing EPCWID

and the United States to divert, and EPCWID to use,

water distributed pursuant to the Rio Grande Project

(“TECQ Decree”) (reprinted in the Appendix to this

brief). New Mexico’s noncompliance with its obliga-

tions under the Rio Grande Compact negatively

impact the ability of the United States and EPCWID

to receive the benefit of the rights adjudicated to

them by Texas in the TECQ Decree.

EPCWID is involved in two ongoing cases in New

Mexico which relate to the water supply and opera-

tion of the Rio Grande Project. EPCWID is a named

defendant in the suit brought by the State of New

Mexico in the United States District Court in New

Mexico wherein New Mexico has attempted to void

the 2008 Operating Agreement, New Mexico v. U.S.

Bureau of Reclamation, et al., CIV-11-691-JB/ACT

(D.N.M.), and is amicus curiae in the New Mexico

general stream adjudication in New Mexico state

court, New Mexico ex rel. N.M. State Eng’r v. Ele-

phant Butte Irrigation Dist., et al., No. CV-96-888, SS-

97-104 (Third Jud. Dist. Ct., N.M.). In both cases,

New Mexico is attempting to undermine the Rio

Grande Project and alter New Mexico's obligations

under the Rio Grande Compact in the absence of

Texas and Colorado. Neither case can resolve the

multitude of issues relating to the Rio Grande Com-

pact and the Rio Grande Project in the absence of the

signatory states to the Compact.

10

EPCWID is the sole Texas governmental entity

party to the 2008 Operating Agreement and joint

holder of the water rights adjudicated by the decree

to EPCWID and the United States for the Rio Grande

waters obligated to Texas under the Rio Grande

Compact. EPCWID and its constituents will be direct-

ly affected by the Court’s interpretation of the rights

and obligations of the parties to the Rio Grande

Compact. Because of its direct and unique interest,

EPCWID is acutely aware of the importance of the

issues brought before this Court by Texas and the

importance of resolving New Mexico’s violations of

the Rio Grande Compact in the only forum which can

consider and resolve the full nature of the dispute.

+

SUMMARY OF ARGUMENT

EPCWID supports Texas’ Motion for Leave to

File Complaint. The Texas Complaint properly in-

vokes the Court’s original and exclusive jurisdiction

under Article III, Section 2 of the United States

Constitution and 28 U.S.C. §125l(a). The claims

presented, for interpretation and enforcement of the

Rio Grande Compact, are serious and dignified claims

asserted in Texas’ sovereign capacity and which only

may be heard by this Court. This Court must resolve

Texas’ claims to ensure the continued operation of the

Rio Grande Project by the Bureau of Reclamation

consistent with federal law and contracts, upon which

irrigators and other residents of Texas, supplied by

EPCWID, have depended for close to a century to

11

secure their fair share of the waters of the Rio

Grande. Because this Court has original and exclu-

sive jurisdiction of disputes between states, there is

no alternative forum in which Texas can bring its

claims to interpret and enforce the Rio Grande Com-

pact against New Mexico and Colorado.

°

ARGUMENT

The Texas Complaint alleges a controversy which

warrants the exercise of this Court’s original jurisdic-

tion. The Court has original and exclusive jurisdiction

over cases and controversies between two or more

States. U.S. Const. Art. III, §2, Cl. 2; 28 U.S.C.

§ 125l(a). The original and exclusive jurisdiction of

the Court “extends to a suit by one State to enforce its

compact with another State or to declare rights under

a compact.” Jexas v. New Mexico, 462 U.S. 554, 567

(1983). In determining whether to permit a complain-

ing State to invoke the Court’s original jurisdiction,

the Court focuses on the “‘seriousness and dignity of

the claim,’” Mississippi v. Louisiana, 506 U.S. 73, 77

(1992) (quoting I/linois v. City of Milwaukee, 406 U.S.

91, 93 (1972)), and “the availability of an alternative

forum in which the issue tendered can be resolved,”

ibid. This Court has rarely declined to exercise its

original jurisdiction in interstate compact disputes or

where competing rights to an interstate stream are at

issue. See Texas v. New Mexico, 462 U.S. 554, 567-68

(1983). The claims of Texas regarding violations of the

Rio Grande Compact fall squarely within the exclusive

12

jurisdiction of the Court. See ibid; Nebraska v. Wyo-

ming, 325 U.S. 589 (1945); Wyoming v. Colorado, 298

U.S. 573 (1936); Kansas v. Colorado, 185 U.S. 125

(1902). Texas’ Complaint plainly satisfies both the

requirement that the claims be serious and dignified

and that there exists no alternative forum in which

such claims can be heard.

I. The Texas Complaint Asserts Serious and

Dignified Claims Which are Within this

Court’s Original and Exclusive Jurisdic-

tion.

“The model case for invocation of this Court’s

original jurisdiction is a dispute between States of

such seriousness that it would amount to casus belli

if the States were fully sovereign.” Texas v. New

Mexico, 462 U.S. 554, 571 n.18 (1983); id. at 567

(stating that this jurisdiction includes interstate

compact disputes between signatory states). “(T]he

Framers ... thought that the original jurisdiction

was a necessary substitute for the powers of war and

diplomacy that these sovereigns previously had relied

upon.” S. Carolina v. Regan, 465 U.S. 367, 397 (1984);

see also The Federalist, No. 80, p. 36 (A. Hamilton)

(Scott ed., 1898) (discussing the Court’s original

jurisdiction, and stating, “Whatever practices may

have a tendency to disturb the harmony between the

States, are proper objects of federal superintendence

and control”).

13

The Texas Complaint for interpretation and

enforcement of the rights and obligations of signato-

ries to the Rio Grande Compact presents a serious

and dignified claim. The Complaint asserts that New

Mexico has violated the Rio Grande Compact by

allowing the diversion of surface waters and the

interception of surface water by pumping of waters

hydrologically connected to the Rio Grande, which

violations have depleted and continue to deplete Rio

Grande waters obligated to the State of Texas and

EPCWID. Complaint at {9 18-21. The depletion of

surface and underground waters by New Mexico

water users within the Rio Grande Project in New

Mexico have impaired, and continue to impair, the

water supply of the Project and the water available to

EPCWID as the downstream Project beneficiary and

the rights which Texas was assured under the Rio

Grande Compact. Ibid. at 4918-19. The United

States set aside all of the unappropriated waters in

the Rio Grande in 1906 and 1908 for purposes of the

Rio Grande Project, without limitation. [bid. at { 7.

EPCWID as a Project beneficiary is entitled to its

share of the United States’ reservation of the water

supply for the Project. As a condition to its admission

to the Union in 1912, New Mexico acknowledged and

accepted the permanent retention by the United

States of “all rights and powers for the carrying out of

the provisions” of the Reclamation Act. Enabling Act,

ch. 310, 36 Stat. 557, 559 (1910). In the Rio Grande

Compact, New Mexico agreed, accepted and acknowl-

edged the existence and operation of the Project and

the water supply for the Project required by the Rio

14

Grande Compact. Texas’ Complaint seeks to enforce

those sovereign commitments. Absent such enforce-

ment, EPCWID and its users will be deprived of a

vital water supply supporting irrigation and munici-

pal uses in western Texas.

The Rio Grande Project was authorized by the

Rio Grande Project Act as a federal reclamation

project. Under the terms of the Rio Grande Compact,

New Mexico’s delivery requirements into Elephant

Butte Reservoir are for the benefit of the Project. The

Rio Grande Compact was entered into and designed

to protect Rio Grande Project water deliveries for

Texas for the purpose of providing water supply for

the Project and its beneficiaries, EBID in New Mexico

and EPCWID in Texas, and Mexico pursuant to

treaty. Once delivered, the water belongs to the Rio

Grande Project and its beneficiaries and cannot, as

New Mexico has allowed, be taken back below Ele-

phant Butte Reservoir in New Mexico through sur-

face water diversions and diversions of underground

waters hydrologically connected to Project supply.

New Mexico cannot now reach below its Rio Grande

Compact delivery point and abscond with water

allocated to Texas under the Rio Grande Compact and

to the Project beneficiaries in New Mexico and Texas

by allowing non-Project depletions of Project water

supply in New Mexico. Only this Court can resolve

the Rio Grande Compact violations which Texas

alleges in its Complaint which relate to essential

sovereign interests regarding water and the Compact

obligations imposed on the States as sovereigns.

15

Texas’ claims assert substantial sovereign inter-

ests over which the Court should exercise its exclu-

sive and original jurisdiction. See Montana ov.

Wyoming, ____ U.S. : , 181 8S. Ct. 1765, 1770

(2011) (exercising jurisdiction over a complaint alleg-

ing breach of an interstate river compact by, inter

alia, subsurface water pumping and new irrigation

systems); Kansas v. Nebraska, 527 U.S. 1020 (1999)

(having asserted original jurisdiction, granting leave

to file a motion to dismiss on the question of whether

the Republican River Compact restricts a State’s

consumption of groundwater; motion subsequently

denied, 530 U.S. 1272 (2000)); Kansas v. Colorado,

514 U.S. 673, 690-91 (1995) (considering exceptions to

the report of the special master regarding groundwa-

ter pumping claims); Nebraska v. Wyoming, 515 U.S.

1, 15 (1995) (accepting the recommendation of the

special master to permit Nebraska to amend its

complaint and assert claims related to groundwater

pumping). The Rio Grande Compact and disputes

among Colorado, New Mexico, and Texas regarding

the waters of the Rio Grande have been the subject of

prior cases over which this Court has exercised its

original jurisdiction. See Texas v. Colorado, 389 U.S.

1000 (1967); Texas v. New Mexico, 343 U.S. 932

(1952); Texas v. New Mexico, 296 U.S. 547 (1935). The

claims Texas brings before this Court similarly allege

a dispute among the states of Colorado, New Mexico,

and Texas as to the correct interpretation of the Rio

Grande Compact and violations of the Rio Grande

Compact. The Court should exercise its original

16

jurisdiction and grant Texas leave to file its Com-

plaint.

Texas also alleges that New Mexico has inter-

fered with and has attempted to impermissibly assert

jurisdiction over the operations of the Rio Grande

Project in violation of the rights of Texas under the

Rio Grande Compact and in violation of the Rio

Grande Project Act. Complaint at 44 18, 20-21. The

water supply of the Rio Grande Project is inextricably

related to the waters guaranteed to Texas by the Rio

Grande Compact. This Court must interpret and

enforce the rights of the respective states in and to

the waters apportioned by the Rio Grande Compact,

including the exclusive right of the United States to

operate the Project for the benefit of the Project

beneficiaries. Through the Reclamation Act, Congress

authorized the Bureau of Reclamation to operate the

Project, and the Rio Grande Compact does not pro-

vide New Mexico an operational interest in or author-

ity over the Project.

The Project is currently operated pursuant to the

terms agreed to by EPCWID, EBID, and the United

States in the 2008 Operating Agreement. The 2008

Operating Agreement defines and protects the rights

of EPCWID and EBID to the Project water supply.

New Mexico’s actions and violations of the Rio

Grande Compact as set forth in Texas’ Complaint

undermine the rights of the Project beneficiaries

under the Rio Grande Project Act and 2008 Operating

Agreement and impair the ability of the United

States to perform its obligations to EPCWID under

17

the Rio Grande Project Act and the 2008 Operating

Agreement.

The Operating Agreement assumes New Mexico's

compliance with its Rio Grande Compact delivery

obligations, as does the TECQ Decree entered by

Texas in its adjudication of EPCWID’s Project water

supply. New Mexico’s current actions, however, are in

derogation of the requirements imposed on it by the

Rio Grande Compact, its contract with Texas and

Colorado to govern the use by the three sister States

of the Rio Grande’s waters. See Texas v. New Mexico,

482 U.S. 124, 128 (1987) (“[A] compact when ap-

proved by Congress becomes a law of the United

States, but a Compact is, after all, a contract.”) (in-

ternal citations, quotation marks, and alterations

omitted). The interpretation and enforcement of the

Rio Grande Compact must take into account the

operation of the Rio Grande Project pursuant to the

2008 Operating Agreement. “(T]he equities support-

ing the protection of existing economies will usually

be compelling. The harm that may result from dis-

rupting established uses is typically certain and

immediate, whereas the potential benefits from a

proposed diversion may be speculative and remote.”

Colorado v. New Mexico, 459 U.S. 176, 187 (1982). As

described in Texas’ Complaint, New Mexico’s acts and

conduct in failing to comply with its obligations under

the Rio Grande Compact and the Rio Grande Project

Act significantly impair the operation of the Rio

Grande Project. Complaint at 9 24-25. In order to

ensure the Rio Grande Project continues to operate as

18

it has for close to a century, supplying irrigators and

other water users in New Mexico and Texas with

their fair share of the supply of Rio Grande water,

this Court must accept jurisdiction over Texas’ Com-

plaint and resolve the claims asserted therein.

Il. There are No Alternative Forums in

Which Texas Can Seek Relief with Regard

to the Claims Asserted in its Complaint.

There are no alternative forums in which Texas

claims may be heard because this Court and only this

Court has exclusive original jurisdiction. See The

Federalist, No. 81, p. 445 (A. Hamilton) (Scott ed.,

1898) (“In cases in which a State might happen to be

a party, it would ill suit its dignity to be turned over

to an inferior tribunal.”). Neither the Rio Grande

Compact Commission nor either of the ongoing litiga-

tions in New Mexico can assert jurisdiction over the

relevant parties or provide complete relief to the

interstate dispute Texas brings to this Court.

A. The Rio Grande Compact Commission

is Not an Alternative Forum for the

Claims Stated in Texas’ Complaint.

The Rio Grande Compact Commission has no

authority to consider the claims stated in the Texas

Complaint. The Rio Grande Compact limits the

Compact Commission’s authority to administering

the Rio Grande Compact and to collecting and main-

taining data related to the administration of the Rio

19

Grande Compact. Rio Grande Compact, Art. XII. In a

suit to adjudicate rights under the Pecos River Com-

pact, this Court stated that “we shall not construe a

compact to preclude a State from seeking judicial

relief when the compact does not provide an equiva-

lent method of vindicating the State’s rights.” Texas v.

New Mexico, 462 U.S. 554, 569-70 (1983). The same

rationale applies here. Moreover, any action of the

Compact Commission requires unanimous consent.

Rio Grande Compact, Art. XII. As set forth in Texas’

Complaint, the Compact Commissioners have

reached an impasse with regard to underlying issues

relating to Texas’ alleged violations of the Rio Grande

Compact by New Mexico. Complaint at ¥ 23.

B. Federal District Court is Not an Alter-

native Forum for the Claims Stated in

Texas’ Complaint.

The suit brought by New Mexico in the United

States District Court for the District of New Mexico is

not an effective forum that eliminates the need for

the Court to consider Texas’ claims. See Mississippi v.

Louisiana, 506 U.S. 73, 77-78 (1992) (rejecting the

argument that a federal district court had jurisdiction

over a boundary dispute between two states because

Congress granted “‘original and exclusive jurisdiction

of all controversies between two or more States’” to

the Supreme Court) (quoting 28 U.S.C. § 1251(a)).

Neither Texas nor Colorado are parties to the New

Mexico federal district court action. Nor could they be

made parties. The federal district court in New

20

Mexico lacks jurisdiction over Texas or Colorado as

sovereigns who have not subjected themselves to the

jurisdiction of that court. The action New Mexico has

brought in federal district court is simply an attempt-

ed end run around the exclusive jurisdiction of this

Court. Perhaps New Mexico is concerned that its fate

on the Rio Grande will be similar to that on the Pecos

River where, in another original jurisdiction action,

New Mexico was held liable for its upstream deple-

tions that deprived ‘Texas of its share of Pecos River

Compact waters. See Texas v. New Mexico, 482 U.S.

124, 128-29, 131-32 (1936).

Any judgment entered by the federal district

court in New Mexico, to the extent the issues in that

case are related to the claims Texas has brought to

this Court, would not be binding on Texas or Colorado

with regard to their rights or obligations under the

Rio Grande Compact. This is exactly why this Court

has original and exclusive jurisdiction over disputes

between states, in particular disputes involving

interpretation and enforcement of interstate com-

pacts. See Mississippi v. Louisiana, 506 U.S. 73, 77-78

(1992); see also Maryland v. Louisiana, 451 U.S. 725,

744 (1981) (concluding that a federal district court

was an “inadequate forum” for dispute regarding

state severance tax where the proceeding “necessarily

would not include the [original action] plaintiff

States”). Any judgment entered by the federal district

court in New Mexico will not fully resolve the claims

in the Texas Complaint and will not provide the

certainty and protection to the water supply of

21

EPCWID necessary to provide the water to which its

users are entitled.

C. The General Stream Adjudication in

New Mexico State Court is Not an Al-

ternative Forum for the Claims Stated

in Texas’ Complaint.

The ongoing general stream adjudication in

New Mexico state court is not an alternative forum

for Texas’ claims. See Maryland v. Louisiana, 451

U.S. 725, 741 n.17 (1981) (noting that the plaintiff

states could not be made parties to the state court

litigation); id. at 744 (concluding an action in state

court challenging a state severance tax was not a

viable alternative to proceeding under the original

jurisdiction of this Court because such a challenge

“implicates serious and important concerns of federal-

ism fully in accord with the purposes and reach of our

original jurisdiction”). This Court has never viewed

its original and exclusive jurisdiction to be obviated

by a state general stream adjudication vis-a-vis an

interstate compact dispute. See Arizona v. California,

460 U.S. 605 (1983) (apportioning waters of the

Colorado River in original jurisdiction action during

pendency of general stream adjudications on Colorado

tributaries, see Arizona v. San Carlos Apache Tribe of

Ariz., 463 U.S. 545 (1983)); see also Montana v. Wyo-

ming, No. 137 Orig., First Interim Report of the

Special Master, 2010 WL 4111634, *15 (Feb. 10, 2010)

(Special Master found that intrastate remedies did

not preclude Montana from enforcing its rights under

22

the Yellowstone Compact which “requires Wyoming to

ensure that new diversions in Wyoming do not pre-

vent sufficient water from reaching the border to

enable Montana to satisfy its pre-1950 appropria-

tions”). Nor could such a forum be deemed to be an

adequate forum for resolution of interstate stream

disputes. A general stream adjudication determines

individual claims to ownership of water within a

stream system, see Dugan v. Rank, 372 U.S. 609, 618

(1963), not to resolution of disputes between states as

to the apportionment of the waters of the stream

pursuant to an interstate compact. The latter is a

matter within the exclusive original jurisdiction of

this Court. See Texas v. New Mexico, 462 U.S. 554,

567-68 (1983). Regardless, Texas is not a proper party

to the state general stream adjudication and could

not be joined to the adjudication because it has not

consented to suit in that forum. Indeed, at the initial

stages of the adjudication when EPCWID sought to

intervene as a party to protect its rights in the Pro-

ject, New Mexico objected to its intervention, claiming

EPCWID owned no water rights. Although EPCWID

has continued as amicus curiae in that proceeding,

the proceeding cannot provide full relief. Further-

more, the state adjudication court is declining to

provide full faith and credit to the TECQ Decree in

derogation of the rights of EPCWID to its allocation

of Rio Grande water supply. Cf. Texas v. Florida, 306

U.S. 398, 410 (1939) (holding the exercise of original

jurisdiction proper to resolve claims by multiple

states to tax the same estate). The state adjudication

court cannot resolve the allegations of Texas that New

23

Mexico has violated its obligations to Texas under the

Rio Grande Compact. The state court, federal district

court, and the Rio Grande Compact Commission are

not alternative forums in which Texas’ Complaint

may be heard.

¢

CONCLUSION

Texas should be granted leave to file its Com-

plaint. The Complaint asserts serious and dignified

claims for which no alternative forum is available.

March 2013

Respectfully submitted,

JAMES M. SPEER, JR.*

300 East Main Street, Suite 1032

E] Paso, Texas 79901

MARIA O’BRIEN

SARAH M. STEVENSON

MODRALL, SPERLING, ROEHL,

HARRIS & SISK, P.A.

500 Fourth Street N.W., Suite 1000

Albuquerque, New Mexico 87103

*Counsel of Record

App. 1

TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

[SEAL]

CERTIFICATE OF ADJUDICATION

CERTIFICATE OF ADJUDICATION NO. 23-5940

Names of Address:

Holders: Bureau of

United States Reclamation

of America 505 Marquette NW,

Suite 1313

El Paso County

Water Improvement - ‘on on —

District No. 1 ‘

Priority

iia El Paso, TX 79907

July 6, 1889

and January 1, 1918

Purpose: Counties:

Agricultural, Municipal, El Paso and

Industrial, Mining, and/ Hudspeth

or Recreational Uses

Watercourse: Watershed:

Rio Grande (above Rio Grande Basin

Ft. Quitman, Texas)

WHEREAS, in 1905, the United States enacted

the Rio Grande Reclamation Project Act of February

25, 1905, 33 Stat. 814, authorizing the construction of

storage facilities on the Rio Grande in the Territory of

New Mexico for storage of water of the Rio Grande for

irrigation of lands in New Mexico and Texas for the

Rio Grande Reclamation Project;

App. 2

WHEREAS, in 1905, the State of Texas enacted

House Bill 588, 29th Legislature, Chapter 101 (as

amended, now Section 11.052 of the Texas Water

Code), which authorized the Secretary of the Interior

to make all necessary examinations and surveys for,

and to locate and construct reclamation works for

irrigation purposes within the State of Texas, and to

perform any and all acts necessary to carry into effect

the provisions of the Reclamation Act of 1902 (38

Stat. 388, now 43 U.S.C. § 371, et seq.) as to such

lands, subject to all the provisions, limitations,

charges, terms and conditions of the said Reclamation

Act;

WHEREAS, Section 8 of the Reclamation Act of

1902 (now 43 U.S.C. §§ 372 and 383) provides in part:

“Nothing in this Act shall be construed as affecting or

intended to affect or to in any way interfere with the

laws of any State or Territory relating to the control,

appropriation, use, or distribution of water used in

irrigation, or any vested right acquired thereunder,

and the Secretary of the Interior, in carrying out the

provisions of this act, shall proceed in conformity

with such laws, and nothing herein shall in any way

affect any right of any State or of the Federal Gov-

ernment or of any landowner, appropriator, or user of

water in, to, or from any interstate stream or the

waters thereof.”;

WHEREAS, in 1906, the United States entered

into the Convention with Mexico for the Rio Grande

providing for the equitable distribution of water of

the Rio Grande for irrigation purposes (34 Stat. 2953).

App. 3

The Convention also provides that the delivery of said

amount of water to Mexico shall be assured by the

United States, and shall be distributed through the

year in the same proportions as the water supply

furnished from said irrigation system to lands in the

United States in the vicinity of El Paso, Texas, and in

case of extraordinary drought or serious accident to

the irrigation system in the United States, the

amount delivered to Mexico at the Acequia Madre

shall be diminished in the same proportion as the

water delivered to lands under said irrigation system

in the United States. Under Article IV of such Con-

vention, Mexico waived any and all claims to the

waters of the Rio Grande for any purpose whatever

between the head of the Acequia Madre and Fort

Quitman, Texas;

WHEREAS, in 1906 and 1908, pursuant to the

Reclamation Act of 1902, the Reclamation Service

notified the Territorial Irrigation Engineer for the

Territory of New Mexico of reservations by the United

States of Rio Grande water for the Rio Grande Rec-

lamation Project in accordance with the laws of the

Territory of New Mexico;

WHEREAS, in 1910, Congress approved an Act

(36 Stat. 559) which enabled the people of New Mex-

ico to form a constitution and state government and

to be admitted to the Union on an equal footing with

the original States. Section 2 of such Act provided in

part, “that there be and are reserved to the United

States, with full acquiescence of the State [New

Mexico], al] rights and powers for the carrying out of

App. 4

the provisions by the United States of an Act of

Congress entitled ‘An Act appropriating the receipts

from the sale and disposal of public lands in certain

States and Territories to the construction of irrigation

works for the reclamation of arid lands’ approved

June seventeenth, nineteen hundred and two, and

Acts amendatory thereof or supplementary thereto

[43 U.S.C. § 371 et seqg.], as to the same extent as if

said State had remained a Territory”;

WHEREAS, in 1911, the State of Texas adopted

what is now Section 11.005, Texas Water Code, which

provides as follows: “This chapter applies to the con-

struction, maintenance, and operation of irrigation

works constructed in this state under the federal rec-

lamation act, as amended (43 U.S.C. Sec. 371 et.

seq.), to the extent that this chapter is not incon-

sistent with the federal act or the regulations made

under that act by the secretary of the interior.”;

WHEREAS, the United States stores water in

two reservoirs, Elephant Butte and Caballo, located

in New Mexico, for use throughout the Rio Grange

[sic] Reclamation Project and for delivery to Mexico.

The United States releases water from such storage

and supplements such released water with return

flow to the Rio Grande and water in the Rio Grande

from other sources, and diverts such water at a series

of diversion dams on the Rio Grande in New Mexico

and Texas;

WHEREAS, the United States purchased lands,

canals and water rights in Texas for the construction

App. 5

of the Rio Grande Reclamation Project, and such

purchases included, without limitation, the Franklin

Canal and the lands and water rights identified in

the Loomis affidavits of 1889, later embodied in Cer-

tified Filing No. 123, using Reclamation funds which

were subject to reimbursement to the United States

by Rio Grande Reclamation Project water users;

WHEREAS, in 1939, the United States, Colorado,

New Mexico and Texas entered into the Rio Grande

Compact (53 Stat. 785; Section 41.009, Texas Water

Code), which constitutes statutory law of the United

States and the States of Colorado, New Mexico, and

Texas and by the terms of the Compact cannot be

modified without the approval of all four parties to

the Compact;

WHEREAS, the United States releases stored

water from Elephant Butte and Caballo Reservoirs to

supply water to the Elephant Butte Irrigation Dis-

trict in New Mexico and the El] Paso County Water

Improvement District No. 1 in Texas. The first two

diversion dams downstream of Caballo Dam (Percha

Diversion Dam and Leasburg Diversion Dam) are

used by the United States to deliver water to land in

New Mexico. A substantial amount of water diverted

by these two diversion dams for use in New Mexico

is returned to the Rio Grande for use downstream

of the dams. The next downstream diversion dam

is the Mesilla Diversion Dam, which is iocated in

New Mexico but is used to divert water to both

the Elephant Butte Irrigation District and the El

Paso County Water Improvement District No. 1. The

App. 6

American Diversion Dam is the next diversion dam

downstream on the Rio Grande. It is the first diver-

sion dam in Texas, and divides water in the Rio

Grande between Mexico and the United States. Water

for Mexico is provided by the United States and

delivered to Mexico at the International Diversion

Dam, in the Rio Grande downstream of the American

Diversion Dam. Water for the El Paso County Water

Improvement District No. 1 is presently diverted by

the United States into the American Canal at the

American Diversion Dam, but for many years the

United States diverted some of such water at the

Riverside Diversion Dam, which is presently not

functional but may be rebuilt in the future;

WHEREAS, approximately 2.3 miles downstream

from the American Diversion Dam is the Internation-

al Diversion Dam. The International Diversion Dam

is used to provide and deliver 60,000 acre-feet of

water per year to Mexico pursuant to the 1906 Con-

vention, and is the only diversion location authorized

by the 1906 Convention or any other treaty between

the United States and Mexico for diversion of water

from the Rio Grande upstream of Fort Quitman,

Texas. The Riverside Diversion Dam is the last down-

stream diversion dam on the Rio Grande below

Caballo Dam and upstream of Fort Quitman, Texas.

The Riverside Diversion Dam is presently not func-

tional but may be rebuilt in the future;

WHEREAS, the United States entered into a con-

tract dated December 29, 1917, with the El Paso

County Water Improvement District No. 1 and the El

App. 7

Paso Valley Water Users’ Association. Thereafter, the

El Paso Valley Water Users’ Association was dis-

solved;

WHEREAS, the El Paso County Water Improve-

ment District No. 1 (“District”) is a political subdivi-

sion of the State of Texas, organized and existing

under Article XVI, Section 59 of the Texas Constitu-

tion, and is subject to Chapter 55 of the Texas Water

Code and other provisions thereof. The District is

authorized by statute to enter into contracts or other

obligations with the United States (§ 55.185, Texas

Water Code). By statute the District is required to

“ ... distribute and apportion all water acquired by

the district under a contract with the United States

in accordance with acts of Congress, rules and regula-

tions of the secretary of the interior, and provisions of

the contract” (Section 55.364, Texas Water Code). The

El Paso County Water Improvement District No. 1

includes 69,010 acres within its boundaries that are

classified by the United States and the District as

irrigable;

WHEREAS, in 1920, the El Paso County Water

Improvement District No. 1 merged with the E] Paso

County Conservation and Reclamation District No. 2,

with the merged districts thereafter known as the El

Paso County Water Improvement District No. 1;

WHEREAS, in 1924, the United States entered

into a contract (the “Warren Act Contract”) with the

Hudspeth County Conservation and Reclamation Dis-

trict No. 1 (“HCCRD”), pursuant to the Warren Act of

App. 8

1911 (43 U.S.C. §§ 523-525), and the parties amended

such contract in 1951. HCCRD holds Texas Permit

No. 236 as amended by Permit No. 236A. Such permit

authorizes HCCRD to divert water from the Rio

Grande at two grade control structures, located at

latitude 31.413 degrees north 106 996 degrees west in

El Paso County, Texas and at latitude 31.318 degrees

north and longitude 105.936 degrees west in Hud-

speth County, Texas;

WHEREAS, in 1996, the United States conveyed

to the El Paso County Water Improvement District

No. 1 certain facilities and rights-of-way within the

District’s boundaries but reserved ownership of the

American Canal, the American Canal Extension, and

the American, International and Riverside Diversion

Dams;

WHEREAS, pursuant to 43 U.S.C. § 521, which

allows the Secretary of the Interior to authorize

conversion of water used in the Rio Grande Reclama-

tion Project from irrigation to other uses, the United

States entered into contracts with the El] Paso County

Water Improvement District No. 1 and the City of El

Paso in 1941, 1944, 1949, 1962, 1999, and 2001 for

the supply of Rio Grande Reclamation Project irriga-

tion water for municipal and industrial uses by the

City. The United States, the E] Paso County Water

Improvement District No. 1, and the Lower Valley

Water District entered into similar contracts in 1988

and 1999 pursuant to 43 U.S.C. § 521 as well;

App. 9

WHEREAS, in 1991, the District applied for a

permit and asserted in its application that without

waiving any, and while still preserving all, of its legal

and “equitable” rights under federal and state law,

(including, without limitation, the Rio Grande Com-

pact; the 1906 Water Convention, May 21, 1906,

between the United States and Mexico; contracts

between or among the El Paso County Water Im-

provement District No. 1 and other entities, including

the United States and New Mexico or its agencies;

the Reclamation Laws of the United States and those

acquired in New Mexico by virtue of the reservation

of water rights by the United States as provided by

notices from the United States to the New Mexico

Territorial Engineer in 1906 and 1908). The Texas

Natural Resource Conservation Commission (the

“Commission”) recognized that the El Paso County

Water Improvement District No. 1 had those rights to

that portion of the facilities and water of the Rio

Grande Reclamation Project and the Rio Grande and

its tributaries which have been reserved for or appro-

priated by or for the benefit of the District and its

predecessors and beneficial users or which otherwise

have been provided to them by law, equity or con-

tract;

WHEREAS, pursuant to such application, the

Commission issued to the District Permit No. 5433;

WHEREAS, by final decree of the 327th Judicial

District Court of El Paso County, Texas, in Cause

No. 2006-3291, In Re: Adjudication of All Claims of

Water Rights in the Upper Rio Grande (above Fort

App. 10

Quitman, Texas) Segment of the Rio Grande Basin,

dated October 30, 2006, rights were recognized au-

thorizing the United States and the El Paso County

Water Improveinent District No. 1 to impound, divert,

and use waters of the State of Texas as set forth

below.

NOW, THEREFORE, this certificate to appropri-

ate waters of the State of Texas in the Rio Grande

Basin is issued to the United States of America and

the El] Paso County Water Improvement District No.

1, subject to the following terms and conditions:

1. IMPOUNDMENT AND USE

a.

Certificate Holder United States is autho-

rized to impound 2,638,860 acre-feet of water

in Elephant Butte Reservoir and Caballo

Reservoir in New Mexico

Certificate Holders United States and El

Paso County Water Improvement District

No. 1 are authorized to divert and Certificate

Holder El] Paso County Water Improvement

District No. 1 is authorized to use an aggre-

gate amount of water from the Rio Grande

not in excess of 376,000 acre-feet per year

from the following sources:

i. all rights which Certificate Holders ac-

quired or perfected pursuant to Certified

Filing No. 123;

ii. 67/155 of all water stored in Project

Storage (as defined in the Rio Grande

Compact) and legally available for release

App. 11

to the Elephant Butte irrigation District

and the E] Paso County Water Improve-

ment District No. 1, plus any additional

share of Project Water obtained by Cer-

tificate Holders, or either of them, through

allocation, purchase and/or operation

rules, “Project Water” being defined as

all water legally dedicated to the Rio

Grande Reclamation Project;

and

iii. any waters entering Texas in the bed of

the Rio Grande from New Mexico, in-

cluding, but not limited to, return flows

from New Mexico’s use and groundwater

discharged into the Rio Grande.

In addition to the water diverted pursuant to

paragraph 1.b above, Certificate Holders are

authorized to divert from the Rio Grande up

to 234,022 acre-feet per year of measurable

surface-water based effluent, groundwater

based effluent, or groundwater discharged

into the Rio Grande by the District or any

other entity with whom the District has

entered into legal contract for such water.

“Effluent” as used in this Certificate of Ad-

judication means any and all water that

reaches the bed of the Rio Grande from agri-

cultural drains, sewage treatment plants, or

storm water runoff.

in addition to the water diverted pursuant to

paragraphs 1.b. and l.c. above, Certificate

Holders are authorized to divert from the

Rio Grande an average of 1,899 acre-feet of

App. 12

water per year, when averaged over any five-

year period, from tributary inflows of the Rio

Grande between the Texas/New Mexico state

line and the Riverside Diversion Dam.

Certificate Holders are authorized to use the

bed and banks of the Rio Grande to transport

the water which is the subject of this Certifi-

cate of Adjudication, and to operate and

maintain diversion dams and works.

2. DIVERSION POINTS

a.

Certificate Holders are authorized to divert

all or any part of the water authorized for di-

version in paragraphs 1.b and l.c above at

the following diversion points:

i. Mesilla Diversion Dam located on the

Rio Grande in New Mexico;

ii. American Diversion Dam located on the

Rio Grande at the point where Texas,

Mexico, and New Mexico meet; and

iii. Riverside Diversion Dam located on the

Rio Grande approximately 13.5 miles

downstream of the American Diversion

Dam;

at a combined maximum diversion rate of

1,355 cubic feet per second.

Certificate Holders are authorized to divert

the water authorized for diversion in para-

graph 1.d above, from the American Diver-

sion Dam and the Riverside Diversion Dam

at a combined maximum diversion rate of 10

cubic feet per second.

App. 13

3. PURPOSE AND PLACE OF USE

Certificate Holder El Paso County Water Im-

provement District No. 1 is authorized to use all of

the water authorized herein for agricultural, munici-

pal, industrial, mining, or recreational purposes

and/or irrigation of a maximum of 69,010 acres of

land within the District’s boundaries and/or to sell

any of this water surplus to the District’s needs for

any of the authorized purposes of use in El] Paso and

Hudspeth Counties.

4. SPECIAL CONDITIONS

a.

This Certificate of Adjudication does not su-

persede any legal requirement for the protec-

tion of environmental water needs pursuant

to international treaty, interstate compact,

or other applicable law to which Certificate

Holders are subject irrespective hereof.

Nothing in this condition is intended to grant

to the State of Texas any authority addi-

tional to that provided by law or to waive

any right of Certificate Holders.

This Certificate of Adjudication is not in-

tended to in any way compromise or dimin-

ish the volume of water which the United

States is obligated to provide to Mexico on an

annual basis pursuant to the terms of the

Convention of May 21, 1906, between the

United States and Mexico; nor does the Cer-

tificate grant to the District, for any use

whatsoever, any waters to which Mexico is

entitled pursuant to the above referenced

1906 Convention.

App. 14

c. Nothing in this Certificate of Adjudication is

intended to modify any authority of the State

of Texas or the United States of America pro-

vided by law, now or in the future.

5. PRIORITY

a. The time priority for use of the water includ-

ed in paragraphs 1.b. and l.c., as referenced

above, is July 6, 1889.

b. The time priority for use of the water in-

cluded in paragraph l1.d., as referenced

above, is January 1, 1918.

The locations of pertinent features related to this

Certificate of Adjudication are shown on pages 1

through 18 of the Appendix to the Report of the In-

vestigation of Water Rights in the Upper Rio Grande

(above Fort Quitman) Segment of the Rio Grande

Basin, Texas. Copies of such pages are located in the

office of the Texas Commission on Environmental

Quality, Austin, Texas.

This Certificate of Adjudication is issued subject to all

terms, conditions and provisions in the Final Decree

of the 327th Judicial District Court of El Paso County,

Texas, in Cause No. 2006-3291, In Re: Adjudication of

All Claims of Water Rights in the Upper Rio Grande

(above Fort Quitman, Texas) Segment of the Rio

Grande Basin dated October 30, 2006, and super-

sedes all rights of Certificates Holders asserted in

that cause.

App. 15

This Certificate of Adjudication is issued subject to

senior and superior water rights in the Rio Grande

Basin.

This Certificate of Adjudication is issued subject to

the rules of the Texas Commission on Environmental

Quality and its continuing right of supervision of

State water resources consistent with the public

policy of the State as set forth in the Texas Water

Code, to the extent that such rules and supervision

are not inconsistent with the federal Reclamation Act

(43 U.S.C. §371, et seq.) or the regulations made

under that Act by the Secretary of the Interior as

provided in Section 11.005 of the Texas Water Code.

TEXAS COMMISSION ON

ENVIRONMENTAL QUALITY

/s/ Kathleen H. White 3/7/07

Kathleen Hartnett White, Date Issued

Chairman

ATTEST:

/s/ LaDonna Castanuela

LaDonna Castanuela,

Chief Clerk