Out in the western part of the American Pecan Belt, the sun burns hot, water runs scarce, and pecan trees grow for miles and miles. Growers look forward to a bright future and continue to plant in Doña Ana County, New Mexico and around the El Paso Valley, Texas.

But a cloud looms over growers in these areas. Already a scarce commodity, water—an essential resource—has become even more treasured.

This year the National Agricultural Statistics Service (NASS) estimates that New Mexico will produce 97 million pounds, break the state’s previous record, and lead the United States in pecan production.

West Texas is another up-and-comer in the pecan industry. At the request of the American Pecan Council, Land IQ used satellite technology to survey pecan acreage in the U.S. and found that the five most western counties of Texas—including El Paso, Hudspeth, Culbertson, Jeff Davis, and Reeves—have 15,767 acres of pecan trees.  Within this same survey, New Mexico exhibits 50,636 acres , while Dona Ana County has 34,383 acres.

But like every crop, pecan trees need water. And if growers wish to produce nuts, they need access to water. According to the article “Estimating Water Needs for Pecan Trees” from New Mexico State University, a mature pecan tree withdraws as much as 150 to 250 gallons a day from the soil. For years, growers in these regions relied on the water from the Rio Grande to irrigate and maintain their orchards, but now an ongoing U.S. Supreme Court case between New Mexico and Texas has cast a shadow of uncertainty over this water source and left growers wondering what will happen next.

Drought conditions, increased water demand from urban areas, diversion, and contrasting water rights interpretations in New Mexico and Texas all have contributed to an escalation between the states which has translated into a 6-year legal battle.

This uncertainty arises from an agreement between three states. The water supply for Doña Ana County, New Mexico, comes from the Rio Grande River which runs from Colorado and fills Elephant Butte reservoir—finished in 1916. In 1938, Colorado, New Mexico, and Texas signed the Rio Grande Compact.[i]

At the time, hoping to avoid needless controversy, the three states agreed to share the water equally. Some people, like pecan grower Phillip Arnold, believe that the Compact’s original purpose was to regulate the irrigation downriver and maintain flood control, though it does not explicitly state.

Through the agreement, Colorado and New Mexico are to deliver a specific amount of water to Texas each month. If these states fail to do so, then they owe a water debt. If they exceed the scheduled deliveries, then the states receive a credit. “Once Elephant Butte reservoir [in] New Mexico is filled by the Rio Grande, New Mexico and Colorado are immediately released from any water debt they may have accrued,” says Phillip Arnold, the President of the New Mexico Pecan Growers Association.

For pages and pages, the Compact outlines rules for diversions and other details regarding water distribution. With the document signed, the three states put disagreements to rest and vowed that all was settled. The Compact appeared to work for decades until about 2013, when it didn’t. (See Supreme Court filing[ii])

As time passed, circumstances changed.

“Since the signing of the Compact, the population of the urban area has changed along the Rio Grande,” Arnold states. “The landlocked city of El Paso, Texas, for instance, now demands more water. El Paso has an aquifer (Waco Basin), but it is salinized. And since less water is coming down the river, the city depends on pumping highly salinized water out of the Hueco Basin.”

Water still flows downriver and leaks into New Mexico’s aquifers, but now, along the way, the water is captured by hundreds of wells and is diverted into pecan orchards, other agricultural fields, and fracking operations before it reaches Texas. Urban development, drought conditions, wetland preservation efforts, and water sales all contribute to the issue. And people on either side of the New Mexico-Texas state line feel cheated out of this precious resource.

When the issue finally came to a head, Texas sued New Mexico in 2013. Texas’ legal argument is that New Mexico drilled approximately 2,500 wells below the reservoir since the Compact was signed and those wells—alongside other diversions—are depleting the amount of water coming to Texas.

Texas further argues that not only should it have more pumping rights, but the state should also receive more water from the Rio Grande.

New Mexico claims, on the other hand, its only obligation is to deliver a certain amount of water from the Elephant Butte Reservoir to Texas, and that New Mexico is not obligated to provide a specific amount of water to the New Mexico-Texas state line. New Mexico also argues that the wells Texas refers to were drilled in compliance with granted water rights under New Mexico law.

Since its filing, the case has only heated up. The federal government jumped on board to Texas’ argument in 2014 and filed similar claims against New Mexico.
 
“If Texas wins the legal argument, Texas would own certain water rights as outlined in its claim. Consequently, some of the New Mexico pecan farmers would have to purchase water from Texas,” Jeff Anderson, a New Mexico Extension Agent, explains. “Unfortunately, it is the opinion of many, that New Mexico farmers will lose the water right’s battle, simply because Texas has better legal representation.”

And Orlando Flores, the County Extension Agent in Agriculture and Natural Resources for El Paso County, agrees.

If Texas wins the court battle, Jeff Anderson believes farmers’ water rates would increase because of the state’s need for additional infrastructure and employees.

Anderson and Flores’ prediction has roots in a recent ruling for the current case and a 1983 Supreme Court decision[iii] regarding the Pecos River. In that 1983 case, Texas alleged that New Mexico shorted Texas water. The court decided that New Mexico must compensate Texas. And since water is a limited resource, New Mexico had to retire water rights along the Pecos River and buy out farms to satisfy the court ruling.

Additionally, the Supreme Court ruled in March 2018 that the federal government can fight alongside Texas against New Mexico in the current legal dispute over the distribution of water from the Rio Grande.

With this precedent set and most recent ruling, growers and other industry members think that New Mexico will again be forced to repay a decided water debt.

One primary point of contention within the case rests on how Texas and New Mexico differentiate water rights within their states.

Texas relies on the “rule of capture.” Texas courts have consistently ruled that a landowner has a right to pump all the water that they can from beneath his land regardless of the effect on wells of adjacent owners.[iv] The legal presumption in Texas is that all sources of groundwater are percolating waters as opposed to subterranean rivers.

In contrast, New Mexico rules that the state allocates the water. All the water in the state belongs to the public, according to the Constitution for the State of New Mexico. The right to use it is called a water right. The water-rights holder doesn’t own the water, but the rights themselves are considered private property that may be sold or leased with permission from the State Engineer. If you have a water right in New Mexico, you have to use it; it can’t be used as a commodity.

“The big difference is that if you live in Texas, you own the land; you own the water,” says Kevin Ivey, who lives in Clint, Texas, and farms 500 acres of pecans and 1,000 acres of cotton. “You can’t separate the surface water rights from the property. When they adjudicated the water rights to the land in Texas, they separated them in New Mexico.”

This dispute is complex, and it comes in layers. Although the basics of the Compact’s legal construct seem to be agreeable to each state, many factors—including drought, contrasting state water rights, urban growth, economic drivers, and the mismanagement delivering the Rio Grande as a resource through an efficient infrastructure—have all contributed to a developing water crisis and the frustrations that led to this legal dispute.

“New Mexico [seems to] interpret the Compact that when the water leaves the dam that seems to be the ‘state line for New Mexico.’ But you have approximately 100 miles of riverbed where the water seeps through until it reaches Texas. Water that Texas will never see,” Ivey gives his thoughts on one such factor.

Ivey thinks that better infrastructure, such as concrete lining, would deliver the water to the Texas state line much more efficiently and avoid—what he believes to be—a “huge water loss.”

El Paso County Extension Agent Orlando Flores agrees with Ivey. “The efficiency of our irrigation district in Texas is much better and more modern than in New Mexico,” Flores says.

Besides infrastructure, individuals and the states themselves complicate the problem with seemingly self-serving actions.

“To make the water issue even more complicated,” Arnold, a Las Cruces pecan farmer, says, “certain municipalities in Texas buy up land along the New Mexico border on the side of Texas and drill.”

Arnold continues sternly: “There are farms between New Mexico and Texas, where Texas came, pumped water, and dried up that aquifer. Those farmers sustained themselves under the regulations of New Mexico, but with Texas sucking up water…there is no more water. Is that fair? We have to make changes that level the playing field. California changed the law after the last drought from ‘right to capture’ with good reason: to conserve.”

On the other side of the state line, fellow pecan grower Kevin Ivey voices a similar concern with how individuals contributed to the water problem. “Maybe we should just work together,” he says. “Should the Native Americans [or others] have the right to sell the water from aquifers to fracking companies? Should Albuquerque have the right to inject wells into the river to supply their aquifers? This is about water rights, not about lining people’s pockets.”

Growers in both states live with uncertainty as they await the results of this most recent legal dispute. Until the U.S. Supreme Court decides, pecan industry members across state lines wonder what the future of agriculture will be and how they will continue business. These growers understand that urban development and agriculture can only exist if there’s enough water, now and in the future. But water remains a limited resource and the fight for that resource continues each day. For industry members, this case represents the opportunity to balance urban development and agriculture, and to establish the importance of agriculture.

Like other pecan growers in New Mexico and Texas, Phillip Arnold fears what this case will mean for his business and the industry at large. “If the demand and ongoing battle go on, will there be a change in pecan farming? Will I be asked to cut down pecan trees?” he wonders. “My dad planted these trees as a livelihood for him and for the generations to come. Don’t take away [my] livelihood and offer nothing! I am not as naïve to believe that I may not have to change, but there should be a fair market value established.”

Texas pecan producer Kevin Ivey expressed a similar concern. “We have to deal with the issue of subsurface water well pumping, which you know is highly salinized in this area,” he says. “Therefore, when I pump water out of my wells—since I don’t have enough river water—how do I keep my trees alive with salinized water?”

For now, the case rests in the hands of a Supreme Court appointed “special master,” Michael J. Melloy, who will take evidence and present his ruling to the court. Until the case is settled, pecan growers in both of these states tread water and focus on the things they can manage—their business, their trees, and their pecans.

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Kevin Ivey lives in Clint, TEXAS and farms 500 acres of Pecans and 1,000 acres of cotton

Orlando Flores, County Extension Agent in Agriculture and Natural Resources for El Paso County.

Phillip Arnold – President of the NEW MEXICO Pecan Growers Association and farmer in LC, NEW MEXICO.  (Phillip Brothers farm 350 acres of Pecans, but also do custom harvesting and cleaning)

Jeff Anderson (Doña Ana County, NEW MEXICO Ag Agent for Agronomy & Horticulture)

[i] https://www.usbr.gov/uc/albuq/water/RioGrande/pdf/Rio_Grande_Compact.pdf

[ii] https://agrilife.org/texasaglaw/2013/09/18/texas-water-wars-texas-v-new-mexico/

[iii] https://supreme.justia.com/cases/federal/us/462/554/

[iv] https://texaswater.tamu.edu/water-law