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

EFS OFFICE OF THE

. Iu The

Supreme Court of the United States

*

STATE OF TEXAS,

Plaintiff,

Vv.

STATE OF NEW MEXICO and

STATE OF COLORADO,

Defendants.

On Motion For Leave To

File Bill Of Complaint

BRIEF OF AMICUS CURIAE CITY OF EL PASO,

TEXAS IN SUPPORT OF PLAINTIFF’S MOTION

FOR LEAVE TO FILE BILL OF COMPLAINT

3711 S. MoPac Expressway

Building One, Suite 300

Austin, Texas 78746

(512) 472-8021

dcaroom@bickerstaff.com

Counsel for Amicus Curiae

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

OR CALL COLLECT (402) 342-2831

Law Library

i

TABLE OF CONTENTS

Page

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A. Factual Background ........................<0.-. 5

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II. Argument and Authorities........................... 10

ARTE ARE SEP Ses Re PON 14

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TABLE OF AUTHORITIES

Page

CASES

City of El Paso v. Reynolds, 563 F. Supp. 379

es: ME incsnsstsepsiisinicenihingbinnicnbntnenennendaen 6, 11, 12, 13

Herrington v. State, 139 N.M. 368, 133 P.3d 358

BI SIT viciicchcicintndndaiammiscinapunibinnadeninesndbedeaieedacincdniis 8

Kansas v. Colorado, 514 U.S. 673 (1995)................... 11

Kansas v. Colorado, No. 105, Original...............:.0++ 13

Kansas v. Nebraska, No. 126, Original....................+. 11

Montana v. Wyoming, 131 S. Ct. 1765 (2011)............ 13

State v. Elephant Butte Irrigation Dist., No.

CV-96-888, 3rd Judicial District Court, Dofia

State v. Elephant Butte Irrigation Dist., No.

CV-96-888, Stream System Issue SS-97-104

United States’ Interest (Aug. 16, 2012).................... g

State of New Mexico v. U.S. Bureau of Recla-

mation, No. Civ. 11-691 JB/WDS (D.N.M.

8 EES Ee once 10, 14

Templeton v. Pecos Valley Artesian Conservancy

Dist., 65 N.M. 59, 332 P.2d 465 (N.M. 1958)........ 8,9

Texas v. New Mexico, 462 U.S. 554 (1983).....10, 11, 14

Texas v. New Mexico, 482 U.S. 124 (1987)................. 11

iii

TABLE OF AUTHORITIES — Continued

Page

OTHER

Hill, Raymond A., Development of the Rio Grande

Compact of 1938, 14 Nat. REsouRcES J. 163

Sea ietatinpsediiiciaitdeimibeasissnienisuteppinejdininésbcteniiatetmndaiiiibaniil 6

http:/Awww.epwu.org/water/desal_info.html................. 2,3

http:/;www.epwu.org/water/water_resources.htm].......... 2

Rio Grande Compact art. XII .00............ceeeeeeeeeeseeeeeeeees 13

1

BRIEF OF AMICUS CURIAE CITY

OF EL PASO, TEXAS IN SUPPORT OF

PLAINTIFF’S MOTION FOR LEAVE

TO FILE BILL OF COMPLAINT

INTEREST OF AMICUS CURIAE'

The City of El Paso, Texas, with its population of

almost 650,000, is the twenty-second most populous

city in the United States. With its sister city, Cuidad

Juarez, it is the second most populous metropolitan

area on the United States-Mexico border and a center

for international trade, with one of the nation’s

busiest free trade zones. It is home to Fort Bliss, one

of the U.S. Army’s largest military complexes. E] Paso

is also a regional education center, home of the Uni-

versity of Texas at E] Paso and the Medical Center of

the Americas, Paul L. Foster School of Medicine.

However, El Paso is located in the northern reach

of the Chihuahuan Desert with less than eight inches

per year of average annual rainfall. Its continued

growth and prosperity depend upon having an ade-

quate water supply, made up of groundwater and Rio

Grande Project surface water.

Although El] Paso has historically relied upon

both surface and underground water for its sources of

supply, use of groundwater from the Hueco Bolson

" Under Rule 37.4, the City of El Paso is not required to file

a motion for leave, and is not subject to the Rule 37.6 require-

ment. However, the notice of intent to file this brief, required

under Rule 37.2(a), was timely provided to counsel of record.

2

formation increased until El] Paso’s use reached al-

most 80,000 acre-feet in 1989.* This raised serious

questions about the long-term ability of the aquifer to

support this level of pumping, causing El Paso to un-

dertake a water management strategy that seriously

promotes water conservation (per capita use in El

Paso has dropped from 200 gallons per capita per day

(gpcd) in 1990 to the current level of 133 gpcd), max-

imizes use of surface water, and increases the use of

reclaimed water.’ Additionally, El] Paso Water Utili-

ties in cooperation with Fort Bliss has constructed,

developed and operates the largest inland desalina-

tion plant in the world, capable of producing 27.5

million gallons per day of potable water from under-

ground brackish water sources. These proactive strat-

egies have allowed El] Paso to cut its reliance upon

the Hueco Bolson by half and reduce demand to a

level that the aquifer can sustain.

* The Hueco Bolson is the underground water formation

located in Texas and Mexico, underlying all but the westernmost

portion of the City of El Paso. Distinct from the Hueco Bolson,

the Mesilla Bolson is the underground water formation located

primarily in New Mexico and Mexico, with only a small portion

extending into the westernmost corner of the State of Texas. The

Rio Grande, as well as the Rio Grande Project in New Mexico,

overlie the Mesilla Bolson before entering Texas. A map showing

both formations is available on the webpage identified in

footnote 3.

* A description of E] Paso’s water resources, as well as past,

current and planned water use, is available at: http://(www.epwu.

org/water/water_resources.html.

* See http://www.epwu.org/water/desal_info.html.

3

The availability of surface water is critical to El

Paso’s current and future water supply, and El Paso’s

only source of surface water is the Rio Grande Project

(Project). El Paso currently has contracts with the

El Paso County Water Improvement District No. 1

(EPCWID) that entitle it to approximately 70,000

acre-feet of water in years when a full allotment of

water is available from the Rio Grande Project. Dur-

ing years of partial supply, E] Paso’s municipal supply

is reduced proportionately with EPCWID’s irrigation

supplies. This water supply is potentially available

only during the seven-month irrigation season, which

corresponds with the peak demands upon El] Paso’s

municipal system.

El Paso’s current water supply and treatment

capability is roughly 130,000 acre-feet per year; ac-

tual demand on the system varies from about 115,000

acre-feet per year to 125,000 acre-feet per year. This

is a conjunctive supply of both surface and ground-

water. Surface water is used to the maximum extent

available in order to conserve limited groundwater

supplies, and can meet more than half of El Paso’s

annual demand. In years when surface water is

limited, groundwater makes up the shortage, with El

Paso’s demands on the Hueco Bolson again approach-

ing 80,000 acre-feet per year under extreme drought

conditions.’

* See Op. Cit.

4

The continued availability of surface water from

the Rio Grande Project is critical to El Paso’s future

water supply capability, both in terms of meeting

current and anticipated demands and in terms of

avoiding placing additional demand on groundwater

sources on which the City needs to be able to rely for

long-term supply.

For this reason, actions by the State of New

Mexico to increase demands on Project water in New

Mexico, reducing water available to Texas users,

and actions to institutionalize those increased New

Mexico demands, are a cause of serious concern to

El Paso and Texas. The State of Texas’ Complaint,

that New Mexico is violating the Rio Grande Compact

by impairing delivery of Project water to Texas, pre-

sents these issues to the Court. Addressing these

issues is a matter of critical importance to the almost

750,000 residents of the region that depend upon El

Paso and the Rio Grande Project for their water

supply.

+

SUMMARY OF ARGUMENT

Surface waters of the Rio Grande and the Rio

Grande Project below Elephant Butte Reservoir are

hydrologically connected to the Mesilla Bolson, the

local underground water formation in New Mexico be-

low Elephant Butte Reservoir. Lowering the level of

underground water by pumping in New Mexico causes

increased losses of surface water and diminished

5

deliveries of Project water to Texas. New Mexico law

allows such depletions of surface water supplies by

groundwater pumping, and New Mexico is currently

taking steps to institutionalize and protect such

groundwater pumping in New Mexico, regardless of

the adverse impact that this pumping has on deliver-

ies of water to Texas.

Texas’ Complaint, arguing that the Rio Grande

Compact incorporates and protects deliveries of Rio

Grande Project water to Texas, presents an issue

squarely within this Court’s original jurisdiction. It

is a reasonable and appropriate construction of the

Compact that has been previously urged by the State

of New Mexico. No other forum is available for the

State of Texas’ Complaint.

El] Paso urges the Court to accept and adjudicate

Texas’ Complaint.

¢

ARGUMENT

I. Background

A. Factual Background

The Rio Grande below Elephant Butte Reservoir

(part of the Rio Grande Project, and located in New

Mexico) is hydrologically connected to the under-

ground water formation, the Mesilla Bolson, which

underlies the irrigated acreage of the Project in New

Mexico. Thus, when groundwater levels are high, the

Rio Grande can be a “gaining stream,” with ground-

water discharges contributing to the surface water

6

system. Under such conditions, delivery losses of

Project water are low, and drain water and return

flows from irrigation are high, all contributing to

downstream deliveries. Conversely, when ground-

water levels are lower, as a result of pumping in New

Mexico, the Rio Grande becomes a “losing stream,”

with surface water feeding the underground system

and high losses in the delivery of Project water down-

stream.

Groundwater resources were thoroughly investi-

gated as part of the Rio Grande Joint Investigation,

which served as a basis for compact negotiations and

was submitted to the President on December 23,

1937. See Raymond A. Hill, Development of the Rio

Grande Compact of 1938, 14 Nat. RESOURCES J. 163,

170 (1974). El Paso understands that at that time

the Rio Grande was a gaining stream with positive

groundwater contributions. By 1983, when El Paso

sought the right to drill wells in New Mexico for its

own water supply, thousands of wells had been drilled

in the Mesilla Bolson in New Mexico and up to

185,000 acre-feet of water per year was being with-

drawn. City of El Paso v. Reynolds, 563 F. Supp. 379,

387 (D.N.M. 1983). During the last 30 years, pumping

in New Mexico has further increased, further dimin-

ishing underground water reserves, and resulting in

greater losses from the Project and the Rio Grande to

the groundwater system.

Against this backdrop, after years of litigation

and years of complaining by the El Paso County

Water Improvement District No. 1 (EPCWID) that

7

both the quality and quantity of deliveries of Project

water were being harmed by excessive groundwater

pumping in New Mexico, the U.S. Bureau of Recla-

mation (USBR), the Elephant Butte Irrigation Dis-

trict (EBID) in New Mexico, and EPCWID entered

into the Rio Grande Project Operating Agreement

(Operating Agreement) in 2008. One fundamental

purpose of the Operating Agreement is to mitigate

the adverse impact of groundwater pumping in New

Mexico upon deliveries of Project water to Texas. As

discussed below, irrigators in New Mexico who are

unable to obtain a full water supply from their sur-

face water rights are able to pump underground

water to make up the shortage. In order to protect

Project deliveries to EPCWID, the Operating Agree-

ment effectively reduces the delivery of Project water

to EBID by an amount needed to make up for the

adverse impact of groundwater pumping on state-line

deliveries of Project water to EPCWID. EBID irriga-

tors can still make up any shortages by pumping

additional groundwater and the impact of groundwa-

ter pumping on EPCWID deliveries is mitigated.

B. Legal Background

The hydrologic situation found in the Lower Rio

Grande in New Mexico, with senior surface water

rights being impacted by junior groundwater pump-

ing, is not unique to the Rio Grande Project or the

Lower Rio Grande. New Mexico courts have devel-

oped an equitable doctrine that allows irrigators,

such as those within EBID who cannot obtain an

8

adequate supply of surface water, to pump ground-

water to supplement their surface water rights. The

Templeton doctrine, based upon Templeton v. Pecos

Valley Artesian Conservancy District, 65 N.M. 59, 332

P.2d 465 (N.M. 1958), addresses the situation where

junior wells intercept groundwater that previously

discharged to the surface, thereby depriving the

senior surface water appropriator(s) of their water

rights. As recently described by the New Mexico

Supreme Court:

To address this circumstance, the Court in

Templeton fashioned an equitable remedy to

allow senior surface water appropriators,

impacted by junior wells, to timely reassert

their priority by drilling a supplemental

well. Through this well the senior surface

water right owner can supplement existing

surface supply, if any, by drawing upon the

groundwater that originally fed the surface

water supply.

Herrington v. State, 189 N.M. 368, 133 P.3d 358, 372

(N.M. 2012) (citations omitted). Rather than protect-

ing senior surface water rights by limiting ground-

water pumping in a hydrologically connected system,

New Mexico authorizes additional pumping by the

surface water right holder to protect himself against

junior groundwater pumping. Numerous irrigators

within EBID have followed this pattern, developing

groundwater supplies to supplement declining sur-

face water available from the Project. Whether these

wells will ultimately be determined to be new appro-

priations or supplemental wells under the Templeton

9

doctrine has not yet been determined. The adverse

impact on deliveries to Texas, however, is the same

and violates the long-standing Rio Grande Compact

agreed upon by Texas, New Mexico and Colorado.

At the same time that New Mexico is allowing

its residents to access underground water via the

Templeton doctrine and new non-supplemental wells,

New Mexico is taking affirmative action to cut off

the Project and USBR from groundwater resources

below Elephant Butte Reservoir. In the ongoing water

rights adjudication proceeding in New Mexico state

district court,’ the United States sought a determina-

tion that the sources of Rio Grande Project water

include both surface water and hydrologically con-

nected groundwater. The State of New Mexico and

other New Mexico parties filed motions to dismiss the

claim of the United States to hydrologically connected

groundwater. Even though the United States argued

that such groundwater, as well as seepage and return

flows of Project water, had been historically available

and was needed to make deliveries of Project water

to Texas and Mexico, the State’s motion to dismiss

claims of the United States to groundwater as a

source of water for the Project was granted and the

claim of the United States dismissed.’

* See State v. Elephant Butte Irrigation District, No. CV-96-

888, 3rd Judicial District Court, Dofia Ana County.

" See Order Granting the State’s Motion to Dismiss the

United States’ Claims to Groundwater and Denying the United

States’ Motion for Summary Judgment, State v. Elephant Butte

(Continued on following page)

10

Further, as noted by the State of Texas’ Com-

plaint, paragraph 20, New Mexico has initiated lLiti-

gation against USBR, EPCWID and EBID to set

aside the Rio Grande Project Operating Agreement.

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

No. Civ. 11-691 JB/WDS (D.N.M. filed Aug. 8, 2011).

If successful, this suit would remove the final imped-

iment to New Mexico’s apparent effort to make max-

imum use of hydrologically cornected groundwater,

regardless of the impact of such use on New Mexico’s

Rio Grande Compact obligations and deliveries of

Project water to Texas.

Thus, it appears that New Mexico is taking steps

to institutionalize its production of hydrologically

connected groundwater from below Elephant Butte

Reservoir within the Project in New Mexico, regard-

less of the impact that such groundwater production

may have on New Mexico’s Compact obligations and

deliveries to Texas.

Il. Argument and Authorities

That pumping of hydrologically connected ground-

water can reduce state-line deliveries of surface water

and cause violation of interstate surface water com-

pacts, appropriate to invoke this Court’s original

jurisdiction, has been proven by New Mexico on the

Pecos River. See Texas v. New Mexico, 462 U.S. 554,

Irrigation Dist., No. CV-96-888, Stream System Issue SS-97-104,

United States’ Interest (Aug. 16, 2012).

11

557 (1983); Texas v. New Mexico, 482 U.S. 124 (1987);

see also Kansas v. Nebraska, No. 126, Original (al-

leging Nebraska’s violation of the Republican River

Compact by allowing proliferation and use of hydrol-

ogically connected groundwater wells); Kansas v.

Colorado, 514 U.S. 673, 693-94 (1995) (holding that

groundwater pumping in Colorado had violated the

Arkansas River Compact). The same thing is happen-

ing now on the Rio Grande.

El] Paso agrees with the State of Texas that this

dispute centers on a fundamental difference in int-

erpretation of the plain terms of the Rio Grande

Compact, and the parties’ intent in executing the

Compact. Brief in Support of Motion for Leave to File

Complaint at 21. There is no doubt that this Court’s

jurisdiction extends to a suit by one State to enforce

its compact with another State or to declare rights

under a compact. Texas v. New Mexico, 462 U.S. at

567; Kansas v. Colorado, 514 U.S. at 693-94.

Although New Mexico can be expected to argue

that its responsibilities end under the Rio Grande

Compact when water is delivered into Elephant Butte

Reservoir, El Paso would point out that this has not

always been New Mexico’s position. In City of El Paso

vu. Reynolds, 563 F. Supp. 379 (D.N.M. 1983), when El

Paso sought to produce and export groundwater from

New Mexico for use in E] Paso, New Mexico argued

that the Rio Grande Compact apportioned the surface

waters of the Rio Grande between the states of New

12

Mexico and Texas and controls the use of hydrol-

ogically related groundwater. Jd. at 382. Further,

New Mexico argued that the Rio Grande Project’s

division of water released from Elephant Butte Res-

ervoir operated to apportion between Texas and New

Mexico water not expressly apportioned by the Com-

pact. Jd. at 386. For these reasons, New Mexico

asserted that El Paso could not take groundwater

from New Mexico without violating the Rio Grande

Compact.

The district court in City of El Paso v. Reynolds

ruled against New Mexico’s construction of the Rio

Grande Compact, but its ruling does not detract from

Texas’ cause of action. In that case, New Mexico was

arguing that the district court lacked jurisdiction be-

cause the case involved a Compact construction issue

and Colorado, Texas and the United States were in-

dispensable parties. /d. at 382. The district court,

however, ruled that the Compact signatories were not

indispensable parties and “[nJot being parties to this

action, they are not bound by the judgment herein.”

Id. Moreover, the court expressly stated:

Contrary to defendants’ contention, a deci-

sion that the compact does not apportion the

river below Elephant Butte does not mean

that New Mexico, having made its delivery,

could undermine it by pumping down the

surface flow of the river below the point of

13

delivery. This opinion does not address that

issue at all.

Id. at 386 (emphasis added). Thus, City of El Paso v.

Reynolds shows that New Mexico has previously

argued precisely the Compact construction suggested

by Texas’ Complaint and that the rejection of this ar-

gument by the district court presents no impediment

to this Court hearing Texas’ Complaint.

The two criteria identified by this Court for de-

termining whether to grant Texas’ Motion for Leave

to File Complaint are fully satisfied. Enforcement of

interstate water compacts is, perhaps unfortunately,

becoming an increasingly frequent basis for exercis-

ing the Court’s original jurisdiction. See, e.g., Montana

v. Wyoming, 131 S. Ct. 1765 (2011) (Yellowstone River

Compact); Kansas v. Nebraska, No. 126, Original (Re-

publican River Compact); Kansas v. Colorado, No.

105, Original (Arkansas River Compact). No question

exists that Texas’ Complaint falls squarely within the

description of disputes justifying the Court’s exercise

of its original jurisdiction.

Similarly, no question exists regarding the avail-

ability of an alternate forum for resolution of the

dispute. The Rio Grande Compact, like the Pecos

River Compact, requires unanimity of the commis-

sioners from New Mexico, Colorado and Texas for

action and has proven incapable of addressing the

issues presented by Texas’ Complaint. The parties are

at an impasse. See Pl.’s App. 16-18 (Compact art. XII).

14

Therefore, it is not a viable forum, and the only

meaningful recourse is to this Court. Cf. Texas v. New

Mexico, 462 U.S. at 562.

Neither the adjudication of Lower Rio Grande

water rights in the New Mexico district court, State v.

Elephant Butte Irrigation District, supra nor New

Mexico’s federal court suit against USBR and the

irrigation districts, State of New Mexico v. U.S. Bu-

reau of Reclamation, supra, presents a viable forum

for the State of Texas’ Complaint. The State of Texas

is not subject to the jurisdiction of a New Mexico

state court. Neither Texas nor Colorado is subject to

the jurisdiction of the federal district court hearing

New Mexico’s claim against USBR, and the case in-

volves entirely different issues than those presented

by Texas’ Complaint.

¢

CONCLUSION

Texas’ Complaint presents issues of construction

and enforcement of an interstate water compact that

are squarely within this Court’s original jurisdiction.

The water supply implications of these issues are of

critical importance to regional municipal, commercial

and agricultural interests, as well as the United

States’ military interests. Opportunities for coopera-

tive resolution have been exhausted. This Court should

grant Texas’ Motion for Leave to File Complaint to

allow presentation and

presented.

15

adjudication of the issues

Respectfully submitted,

DouGLAS G. CAROOM

Counsel of Record

BICKERSTAFF HEATH

DELGADO Acosta LLP

3711 S. MoPac Expressway

Building One, Suite 300

Austin, Texas 78746

(512) 472-8021

dcaroom@bickerstaff.com

Counsel for Amicus Curiae