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Texas suit most immediate threat to NM’s water

LAS CRUCES – The short-term risk to New Mexico’s groundwater isn’t Mexico or drought, experts say. It’s Texas.

Earlier this year, the special master in Texas v. New Mexico finalized a recommendation to the U.S. Supreme Court that Texas be allowed to pursue its claim that groundwater pumping in southern New Mexico is depleting the Rio Grande of water that belongs to Texas.

The court accepted the recommendation to deny New Mexico’s motion to dismiss the case.

“The attorney general would like to settle this case,” said Tania Maestas, chief deputy attorney general of New Mexico under Hector Balderas. “He has relayed that to all of the parties included. We have had discussions with Texas and Colorado and the Bureau of Reclamation – all of the parties in this case.”

If the justices side with Texas, the case will move forward and New Mexico could ultimately face paying its bigger, richer neighbor billions in damages or water, said Elephant Butte Irrigation District general counsel Samantha Barncastle. And the groundwater on which southern New Mexico municipalities and farmers depend could be in legal jeopardy.

“You don’t want to litigate these cases,” she said. “These are no-win situations for the upstream state. History has shown that the upstream states don’t win.”

For example, a 2008 operating agreement mandated by the Bureau of Reclamation required EBID to “pay” for increased groundwater pumping by delivering more surface water to Texas, resulting in a loss of 170,000 acre feet per year to New Mexico, according to a legislative handout by former Attorney General Gary King.

This summer, each side will submit briefs to the court arguing its position on the special master’s report. The justices will decide in the fall whether to consider the documentation and rule, or schedule the case for oral argument. Initially, the Supreme Court will not decide whether Texas is owed more water – only whether Texas can move forward in the court with its claims.

Texas v. New Mexico is another obstacle to binational cooperation on shared aquifers.

“I think this is not just an issue between the U.S. and Mexico, but also between state boundaries,” said Stacy Timmons, a hydrogeologist and aquifer mapping program manager at New Mexico Institute of Technology. “With groundwater, there is no way to create a border fence in the ground. You can be on one side or the other and affecting the other.”

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