In 1938, Texas, New Mexico and Colorado entered into the Rio Grande Compact to allocate water from the Rio Grande between the states.
The compact requires New Mexico to deliver a specific amount of water to Elephant Butte Reservoir, located several hundred miles north of the Texas state line.
At that point, the U.S. Bureau of Reclamation allocates the water between two beneficiaries: the Elephant Butte Irrigation District (New Mexico) and the El Paso County Water Improvement District No. 1 (Texas).
Texas claims that New Mexico is illegally depleting the Rio Grande flow between the reservoir and the state line.
Specifically, Texas claims that New Mexico allows impermissible diversion of surface water from the river and has issued permits for groundwater pumping that also depletes the river due to connectivity between surface and groundwater.
Specifically, Texas points to wells that New Mexico has issued permits for – approximately 2,500 of these wells have been drilled between the reservoir and the Texas state line since the compact was signed – and claims that these wells are depleting the amount of water coming to Texas pursuant to the compact.
Although Texas does not point to a specific term of the compact that was violated and does not dispute that New Mexico is delivering the required amount of water into the Elephant Butte Reservoir under the compact, it claims that the “purpose and intent” of the compact is violated when New Mexico allows water to be diverted prior to delivery into Texas.
In response, New Mexico claims that its only obligation under the compact is to deliver a certain amount of water into the Elephant Butte Reservoir.
The compact does not require any specific amount of water be delivered to the Texas – New Mexico state line.
New Mexico claims that what happens between the reservoir and the Texas state line is governed by New Mexico law and not by the compact, and that the wells drilled below the reservoir are proper as they were drilled based upon water rights and permits that were granted under New Mexico law.
Texas’ lawsuit requests that the U.S. Supreme Court hear the case, enjoin New Mexico’s diversions and depletions that take any portion of Texas’ water, order New Mexico to pay for the water that it has taken through groundwater pumping and surface diversions, and specifically allocate Texas’ portion of water to which it is entitled under the compact.
Texas’ motion requesting leave to file its lawsuit remains pending in the Supreme Court. The court has discretion to determine whether to hear the case.
In the meantime, tensions run high between the states. Texas has allocated $5 million to pursuing this litigation. When asked about the litigation, New Mexico Gov. Susana Martinez has said that New Mexico “will not cede one inch of New Mexico water to Texas.” 
Tiffany Dowell
Assistant Professor and Extension Specialist Agricultural Law
Texas A&M AgriLife Extension Service
