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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_1000%3A03. Public record. Not legal advice.