E&E News reporter Jennifer Yachnin interviewed Sherman & Howard water law attorney James Eklund about the upcoming U.S. Supreme Court decision on the Rio Grande and how the waters are divided between Texas, New Mexico, and Colorado. Eklund emphasized that if the Court takes the side of the states, it could lessen the authority the federal government has on future water disputes.

Below is an excerpt from the article.

James Eklund, Colorado’s former top water official, said that if the Supreme Court sides with states – allowing the settlement to go forward despite concerns from the Biden administration over how it would affect operations of the Elephant Butte Dam and Reservoir and other federal facilities along the Rio Grande – it could “declaw” the executive branch as it tries to mediate future water disputes. “I’m nervous that that would mean that the federal government would have less ability or authority to play that heavy-hammer type of role,” said Eklund, who leads the water and natural resources practice at the law firm Sherman & Howard.

Eklund pointed to recent emergency planning efforts on the Colorado River, in which Interior Department and Bureau of Reclamation officials leveled the threat of aggressive cuts to Arizona, California and Nevada in order to force negotiators to reach a deal. “This case doesn’t necessarily deprive the federal government of all of those tools to force the states to the negotiating table,” Eklund said, “but it doesn’t help.”

Should the court side with the Biden administration, it could shift the power balance significantly in favor of the executive branch. Such a ruling could prompt the White House and future administrations to argue that they are the “watermaster” everywhere they have infrastructure, Eklund said. “It’s hard to overstate how big the implications are if the federal role is changed,” he added.

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