New Mexico’s water resource management agencies are telling the Legislature that New Mexico faces Middle Rio Grande compact jeopardy and lacks capacity to prevent that jeopardy from becoming a disaster. What jeopardy, you might be thinking? This is how the Office of the State Engineer (OSE) describes it (emphasis in the original):
If hydrology does not improve, and without further action, New Mexico could violate the Rio Grande Compact – an agreement between New Mexico and our neighboring states related to how the waters of the river are shared. A compact violation could trigger curtailment and/or costly litigation that may result in severe and unpredictable shocks to the economy and water supply for agricultural and municipal users in the middle and lower Rio Grande. […]
If depletion reductions are managed in a proactive manner, New Mexicans can retain local control over water management and have certainty about water rights management into the future.
Maintaining New Mexico’s compliance with the Rio Grande Compact requires additional resources now.
What is the Rio Grande Compact and what does it require of the Middle Rio Grande?
The Rio Grande Compact, like other interstate river water allocation compacts in the West, is state law in all the states subject to the compact. It is also federal law. Once signed by the Governors of the states and the President of the United States, following passage by the state legislatures and Congress, an interstate stream compact is binding. It can be changed only by agreement. Interstate water disputes involving compacts are evaluated and enforced by the United States Supreme Court. There is no appeal.
Turmoil erupted along the Rio Grande when Coloradans diverted all the flow they could from the Rio Grande in the 1890s. The river at El Paso was dry. Three decades of interstate disputes were settled by a 1929 federal moratorium on all Rio Grande water development. After a remarkable and intensive federal hydrology investigation, the Rio Grande Compact was negotiated and signed at Bishop’s Lodge in Santa Fe in 1938.
The Rio Grande Compact makes three allocations for water use in New Mexico.
The Upper Rio Grande may continue using as much water as it was, and no more, as an implicit condition of the compact. No formal compact accounting procedure to enforce this provision exists. New Mexico is not in violation because Upper Rio Grande irrigation has declined substantially.
Lower and Middle Rio Grande allocations
New Mexico must deliver water through the Middle Rio Grande for use in the Lower Rio Grande. The compact allocations require a minimum of 57% of the water flowing under the Otowi highway bridge to Los Alamos be delivered for Lower Rio Grande uses. New Mexico’s annual allocation is the other 43%, capped at a maximum of 405,000 acre-feet per year.
For accounting purposes, the Middle Rio Grande inflow is adjusted for net storage change over the year in New Mexico’s reservoirs constructed after the 1929 moratorium.
The graphic below illustrates these allocations. The Middle Rio Grande portion of the annual Otowi inflow volume is the turquoise sliver. The Lower Rio Grande is entitled to 100% of the annual volume that exceeds 1,200,000 acre-feet in one year, the orange wedge. The compact was designed to fill Elephant Butte Reservoir in flood years.
In addition to Otowi gage annual inflow allocation, the Middle Rio Grande is entitled to deplete the annual inflow volume from tributaries entering the Middle Rio Grande plus all San Juan-Chama Project imported water released to San Juan-Chama Project contractors..
The New Mexico Interstate Stream Commission (ISC) oversees the Rio Grande Compact situation for New Mexico and supports the New Mexico Compact Commission, who is always the State Engineer.
Internally within New Mexico, the State Engineer has the legal authority to enforce compact water delivery requirements, but has never done so on one of the state’s major rivers.
The ISC works with representatives of the Bureau of Reclamation, Colorado, and Texas to prepare the compact accounting annually for the Rio Grande Compact Commission’s approval. Water deliveries from the Middle Rio Grande for use in the Lower Rio Grande are measured as the change in storage in Elephant Butte Reservoir plus the volume released from Elephant Butte Reservoir during the year. The compact caps the Middle Rio Grande’s allowable cumulative water debt at 200,000 acre-feet
Rio Grande Compact Litigation in the Lower Rio Grande
New Mexicans residing in the Lower Rio Grande are entitled by the compact to deplete 57% of the water released from Elephant Butte Dam but are using more through heavy agricultural and municipal groundwater pumping adjacent to the river. Texas sued New Mexico for a Rio Grande Compact violation in 2012 claiming New Mexico groundwater pumping was taking New Mexico water. The United States intervened on the Texas side and presented its own claims.
Actions by large New Mexico pecan growers who depended on massive groundwater pumping were the trigger. Large growers dominated the Elephant Butte Irrigation District Board. The EBID board gave New Mexico’s Rio Grande water to Texas irrigators to offset the effect of their pumping on the river. The deal between the New Mexico and Texas irrigators included and was implemented by the Bureau of Reclamation. They completely bypassed the State of New Mexico. The pecan grower purpose was to pump groundwater to irrigate their permanent crop regardless of surface water shortages. In 2011, New Mexico sued Reclamation in Federal District Court over Reclamation’s lack of authority for its actions. Texas reacted, suing New Mexico the next year in the United States Supreme Court.
The author as ISC Director addressed explicit Texas’ Lower Rio Grande SCOTUS litigation threats from 1997 through 2002, with Texans water agency staff literally pounding on the table in Santa Fe. A year or two later, they cancelled an Austin, Texas, meeting before it was supposed to end, after being confronted by the ISC chair and vice-chair with New Mexico’s counterclaims of Texas, as lawyers say, “dirty hands.”
As an aside, Enron-style charm was a component of the Texas effort in the late 1990s. Enron hosted a lavish reception at the gated, art-filled compound of a wealthy Santa Fe resident. New Mexico and Texas legislators and agency staff attended. It was pretty clear one purpose was a Santa Fe summer break for Texans. Yes, that Enron.
A settlement to the current Texas and US v. New Mexico SCOTUS litigation over the Lower Rio Grande continues on after 12 years and over $100 million in New Mexico litigation costs. A settlement agreed by the states and accepted by the prior Special Master but not the Court itself, would require NM to reduce groundwater pumping by about 18,000 acre-feet per year. The negotiated settlement didn’t financially penalize New Mexico due to the counterclaims New Mexico developed and proved against both Texas and the United States.
The hang-up to the settlement is the Department of Justice. It objected, saying New Mexico can’t be counted on to do what it commits to and that New Mexico needed to give to Texas water that has long been settled as New Mexico’s. The proposed settlement – agreed between the states but unacceptable to the Department of Justice – adds a new gage at El Paso and a complex new accounting procedure to measure New Mexico’s annual Lower Rio Grande delivery compliance, if the SCOTUS accepts it.
The SCOTUS ordered mediation under a new Special Master, who is a senior, no nonsense federal judge. The second of the current of compelled mediation sessions presided over by the demanding new special master was held in Washington, D.C. February 26-28, 2025. The Special Master set a trial date for June.
SCOTUS litigation, in addition to being extremely costly and risky, is very demanding of the state’s water resources agencies leaders bandwidth. They don’t need another dose. But,
The Middle Rio Grande Water Delivery Debt is Alarming and Growing.
New Mexico’s water delivery debt as of the end of 2023 was 121,500 acre-feet. Despite some cooperative efforts between the state and the Middle Rio Grande Conservancy District to reduce the debt in 2024, New Mexico’s preliminary accounting indicates the debt grew slightly to about 123,000 acre-feet. These two graphs illustrate the debt trends and the importance of the litigation credit that New Mexico successfully negotiated with Texas in 2022. The Rio Grande Compact Commission agreed that only New Mexico, and not Reclamation, has the authority to dispose of New Mexico water stored in Elephant Butte.
New Mexico can count on a new Texas SCOTUS lawsuit when the cumulative delivery debt exceeds the 200,000 acre-feet per year limit. We already have seen one version of the Texas complaint, filed when Texas attempted to bring Middle Rio Grande water issues into the Lower Rio Grande litigation.
Relevant History That the Middle Rio Grande Policy- and Decision-Makers Should Understand
New Mexico’s Middle Rio Grande compact compliance history has a story to tell. The 1938 compact was barely in existence when two consecutive flood years occurred in 1941 and 1942. Huge floods filled Elephant Butte Reservoir, which overflowed. The floods destroyed the channel of the Rio Grande. Aerial photography of the river below the Bosque del Apache in the late 1940s shows only a sea of salt cedar; no river channel is visible.
Texas sued in the early 1950s. The United States said it was an indispensable party to that lawsuit because of its trust relationship with the Pueblos but refused to participate. Before the lawsuit was dismissed, Reclamation rebuilt the Middle Rio Grande Conservancy District and installed the river diversion dams. It still owns them.. Reclamation designed a narrow channel between levees and channelized the Rio Grande in its current position. The channelization, deep drains, and major water salvage infrastructure worked to substantially increase New Mexico’s deliveries to the Lower Rio Grande. Texas dropped the lawsuit and New Mexico came into compliance, which has lasted over 50 years.
.
The 1980s and 1990s were the wettest two decades of the last 1000 years. Elephant Butte Reservoir spilled in 1985, 1986, 1987, 1988, and 1995. Now we are in the driest decades of more than 1000 years and Elephant Butte Reservoir is drained.
The fundamental problems are these. Our water supplies are down. Our water demands are up. We are courting new high water use industry. We have a continuous, dense water-loving and publicly treasured riparian forest between levees on both sides of the river that never existed before. Groundwater pumping has expanded. Middle Rio Grande Conservancy District expanded their irrigated acreage on newly developed farmland, which they still are allowed by the Legislature to do.
Half of all New Mexicans live in the Middle Rio Grande, many from rural New Mexico seeking employment. While water is never far from the thoughts of most rural New Mexicans, many of whom hold it sacred as do the Water Advocates, water is a taken-for-granted commodity for most urban dwellers.
We are not facing this problem. The 2025 Legislator has appropriated nothing – That’s Right – Nothing – to deal with it. The saying, “Poor New Mexico, so far from Heaven, so close to Texas,” attributed to New Mexico Governor Manuel Armijo about 1850, seems to fit the situation confronting us with the current budget. The House of Representatives allocated $48 million for brackish water development but zero for proactive efforts to maintain Middle Rio Grande compact compliance. Now it’s up to the Senate.
Active Water Resources Management is the Solution
Fortunately, there is already a fully authorized legal mechanism to curtail overuse and prevent the pending compact violation. A bill passed by the 2003 Legislature authorized a program called Active Water Resources Management. The law, Section 72-2-9.1 NMSA 1978, granted new authority to the State Engineer. It says, in part,
The legislature recognizes that the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or otherwise available to the state engineer. The state engineer shall adopt rules for priority administration to ensure that authority is exercised: (1) so as not to interfere with a future or pending adjudication; (2) so as to create no impairment of water rights, other than what is required to enforce priorities; and (3) so as to create no increased depletions.
The Office of the State Engineer issued General Rules to implement this new authority in 2004. The New Mexico Supreme Court unanimously upheld the rules in 2012.
The AWRM program was designed for the Rio Grande. It is the law. AWRM will prioritize water rights to protect senior users, essential domestic uses regardless of priority, require accurate measurements of groundwater pumping, and enforce reductions by junior water rights owners. Creation of a water bank so that water can be accessed by otherwise curtailed junior users is a requirement. The water bank will allow otherwise curtailed junior water rights holders to lease water from senior water right owners who in exchange for money will make their water available, reducing conflict and encouraging conservation. It’s complex but essential.
The Deputy State Engineer and the OSE General Counsel presented an informative workshop describing the “carrots and sticks” of compact compliance in May 2024. The video recording is available under “Past Events” at nmwateradvocates.org. The General Counsel is scheduled to present again on the Middle Rio Grande Compact situation at the Water Advocates’ May 15, 2025 3rd Thursday evening workshop. Preregistration is required and will be available soon on the Water Advocates website.
The Legislature must fund the State Engineer to apply AWRM to the Middle Rio Grande or all New Mexicans will suffer the costs and Middle Rio Grande will suffer the severe consequences projected by the State Engineer fact sheet: curtailment and/or costly litigation that may result in severe and unpredictable shocks to the economy and water supply for agricultural and municipal users in the middle and lower Rio Grande.
The Legislature’s choice is simple, but legislators appear unaware they are making that choice. They must fund proactive compact compliance or fund the consequence of not doing so: another high-stakes, risky round of Texas v. New Mexico SCOTUS litigation. With the current national political situation, SCOTUS litigation with Texas seems particularly fraught. The stars seem to be aligned for Texas.
Call to Action
The Senate Finance Committee is the only hope for funding Middle Rio Grande Active Water Resources Management. The State Engineer requested $500,000 for new staff positions to do this work. The Water Advocates are requesting an additional $2 million in non-recurring funds to accelerate this essential work.
The Senate Finance Committee must agree to this funding within the next week or so. Please call your Senator, Senate officers, and the Senate Finance Committee members to ask the Senate to provide the OSE/ISC with the resources they need to protect the Middle Rio Grande. Tell them why they should support this funding. It’s essential to:
- Prevent Costly Litigation
- Maintain Local Control
- Protect Agricultural & Municipal Water Supplies
The Legislative Toolkit at nmwateradvocates.org will be helpful. Use the links and sample language there to find your Senator’s contact information and help you structure your communication. Time is short.
Please act now.
Glossary
Acre-Foot – A unit of volume used to measure large-scale water resources. One acre-foot equals the volume of water required to cover one acre of land to a depth of one foot (approximately 325,851 gallons).
Active Water Resources Management (AWRM) – A New Mexico program authorized by the Legislature in 2003 (Section 72-2-9.1 NMSA 1978) granting the State Engineer additional authority to manage water use, enforce water rights priorities, and ensure compliance with interstate compacts.
Adjudication – A legal process to determine and confirm the extent and priority of water rights. In New Mexico, adjudications take decades to complete, prompting the Legislature to grant the State Engineer provisional management powers under AWRM.
Bureau of Reclamation – A federal agency within the U.S. Department of the Interior that oversees water resource management, particularly in the western states. In the Rio Grande context, it manages reservoirs, irrigation projects, and other infrastructure.
Cumulative Water Delivery Debit or Credit – A cumulative tally of how much water a region has underdelivered (debit) or overdelivered (credit) annually since compact accounting began in 1940.
Curtailment – A restriction or reduction in water use imposed to prevent overuse and maintain required flows or deliveries under a compact or other legal agreement. If New Mexico violates the Rio Grande Compact, curtailment of water rights may result.
Depletion – Water lost from a system through evaporation, consumption by crops, consumption by riparian vegetation, etc., so that it is no longer available for downstream use. Under the Rio Grande Compact, annual accounting is based on river water supplies and the depletion of the river flows measured downstream over the calendar year.
Elephant Butte Irrigation District (EBID) – A water management district in southern New Mexico responsible for delivering irrigation water below Elephant Butte Reservoir. It was completed in 1916.
Elephant Butte Reservoir – A large reservoir on the Rio Grande near Truth or Consequences, New Mexico. Elephant Butte Dam is the first constructed by the Bureau of Reclamation. It holds the Lower Rio Grande’s entire surface water supply.
Interstate Stream Commission (ISC) – A New Mexico state agency charged with ensuring New Mexico’s compliance with interstate water compacts, developing water plans, and protecting the state’s water interests. The author of the blog post formerly served as Director of the ISC.
Lower Rio Grande – Generally refers to the stretch of the Rio Grande below Elephant Butte Reservoir in southern New Mexico, extreme southwest Texas, and Mexico to a point about 100 miles downstream from El Paso. Users in this area rely on the river for agriculture and other water needs.
Middle Rio Grande – The portion of the Rio Grande from the Los Alamos highway bridge to Elephant Butte Dam. This region includes Albuquerque, surrounding municipalities, and agricultural areas within the Middle Rio Grande Conservancy District (MRGCD).
Middle Rio Grande Conservancy District (MRGCD) – A political subdivision of the State of New Mexico that manages irrigation, drainage, and flood control in the Middle Rio Grande Valley. Its operations impact water deliveries downstream.
New Mexico Office of the State Engineer (OSE) / State Engineer – The New Mexico state agency tasked with overseeing water rights administration, dam safety, and compliance with interstate compacts. The State Engineer is the chief water official in New Mexico and was granted additional powers under AWRM to enforce priority administration.
Otowi Bridge – A key river-gauging station near Los Alamos, New Mexico, used in Rio Grande Compact accounting to measure the flow of the river and determine delivery obligations for the Middle Rio Grande.
Rio Grande Compact – A 1938 agreement allocating the waters of the Rio Grande among Colorado, New Mexico, and Texas. It is ratified by Congress and the involved states and enforced by the U.S. Supreme Court. The compact sets specific delivery requirements for the Middle and Lower Rio Grande, with limits on allowable “water debt.”
San Juan-Chama Project – A federal project that diverts water from the San Juan River Basin (part of the Colorado River system) into the Rio Grande Basin. This imported water is used in the Middle Rio Grande to supplement local municipal and MRGCD irrigation supplies.
SCOTUS – An acronym for the Supreme Court of the United States. SCOTUS has ultimate authority to interpret and enforce interstate compacts. It presides over water-related disputes between states, including those involving the Rio Grande Compact.