Texas vs. New Mexico water lawsuit now pending in the U.S. Supreme Court could take as long as another decade to be resolved

LAS CRUCES - The Texas vs. New Mexico water lawsuit now pending in the U.S. Supreme Court could take as long as another decade to be resolved, a consultant water attorney for the city said during a recent meeting. "It's going to be much longer than four years," Jim Brockmann said in response to a question posed by Las Cruces City Councilor Ceil Levatino. "It's very complex litigation. The state of New Mexico hasn't even filed counterclaims or cross claims. "If I was really going to take my best guess, I'd say closer to 10 years than to four." What's next? The litigation has pitted the state of Texas against New Mexico in a U.S. Supreme Court battle over groundwater use in southern New Mexico. The case has consumed the attention of major water users in the region, including cities, farmers and irrigation districts, many of whom could see ramifications from the eventual outcome. In particular, many are worried about a curtailment of water use that could result. In February, the Supreme Court agent who is overseeing the lawsuit declined a request by the state of New Mexico to throw out the case. Las Cruces city councilors also heard Monday from Assistant New Mexico Attorney General Tania Maestas, who gave an update on the litigation. She said there could be oral arguments related to the motion to dismiss, but if not, the case will proceed with New Mexico filing its formal response to the lawsuit and possibly making its own allegations, known as counter-claims. "This is when we actually get to state points that we feel are especially important to the citizens here and the water users here in New Mexico," she said. City-AG's office partnership The city, as a major groundwater user in Doña Ana County, is "very clearly aligned" with the New Mexico Attorney General's Office in the lawsuit, Brockmann said. The lawsuit boils down to control over groundwater in south-central New Mexico, he said. The city believes the state of New Mexico is the controlling authority. "So it's absolutely critical for us that we communicate and coordinate with the state Attorney General's Office to make sure that those groundwater rights that are administered under state law are protected under state law," he said. "And that is a primary position for the attorney general in that litigation." The Las Cruces-based Elephant Butte Irrigation District, which delivers river water to farmers throughout Doña Ana County, has opposed the state of New Mexico's position in lawsuit. Maestas said current Attorney General Hector Balderas has talked with EBID about their stance in the case, which hadn't been done previously. Also, EBID has started having technical-oriented discussions with a group of groundwater users known as the Lower Rio Grande Water Users Organization. That group has been carrying out work on the technical information that would be key to any settlement of the lawsuit. Brockmann said the water users group, which includes the city of Las Cruces, had been working not only because of the Supreme Court litigation but also because of an ongoing water adjudication case in state district court. That long-term proceeding will legally define water rights for water users throughout Doña Ana County. Origins The lawsuit arose out of 1938 Rio Grande Compact, which apportioned river water among three U.S. states, experts have said. New Mexico’s measuring point for delivering water to Texas was the Elephant Butte Reservoir — roughly 100 miles north of the actual Texas state line. The river water released from the reservoir serves farmers in the New Mexico-based Elephant Butte Irrigation District and the Texas-based El Paso County Water Improvement District No. 1, as well as in Mexico. Groundwater pumping in that same 100-mile stretch, however, has been the purview of the New Mexico State Engineer’s Office. The groundwater and river water systems are connected. Texas has argued that New Mexico has allowed over-pumping of groundwater, undermining El Paso irrigators’ share of river water. A 2010 agreement between EBID and the El Paso irrigation district attempted to resolve a longstanding dispute over apportioning water. Former New Mexico Attorney General Gary King challenged the agreement in federal district court, which onlookers said prompted Texas to file its lawsuit against New Mexico at the U.S. Supreme Court. EBID has continued to back the operating agreement of 2008. Diana Alba Soular may be reached at 575-541-5443, dalba@lcsun-news.com or @AlbaSoular on Twitter.