Reed Benson
On the opening day of its new term, an eight-member Supreme Court – with one vacancy following the death of Justice Ruth Bader Ginsburg – heard argument Monday in Texas v. New Mexico, a new dispute in a long-dormant Supreme Court case over the waters of the Pecos River. The Pecos River Compact, approved by Congress in 1949, apportions these waters between upstream New Mexico and downstream Texas. Legal and technical disputes over New Mexico’s obligations led to landmark Supreme Court decisions in the 1980s and a decree requiring New Mexico to increase its deliveries of water to the Texas state line. The court also appointed a “river master” to perform the calculations needed to determine New Mexico’s ongoing compliance.
The Pecos River master is one of only two such officials in the nation, appointed by the court to oversee one of its interstate water decrees. Only the Supreme Court can review a river master decision, but the court has never taken up a state’s challenge to such a decision until now. Thus, this latest round in Texas v. New Mexico is a first in the court’s interstate water jurisprudence dating back to the early days of the 20th century.
The current dispute originated with a tropical storm that dumped heavy rains on the Pecos Basin in September 2014. That water was stored in a federal reservoir, Brantley, located on the Pecos in New Mexico and operated by the U.S. Bureau of Reclamation. The bureau originally retained the high flows in Brantley for flood control purposes, but soon Texas asked that they be held in the reservoir and released later so that Texas could use them during the next irrigation season. Weather conditions in Texas did not cooperate, however, and in the end the bureau released the water the following summer at a time when Texas was unable to use it. During the months the water was held in Brantley, however, over 20,000 acre-feet of water evaporated. (An acre-foot is a measure of water volume, slightly less than one-third of a million gallons.)
After initially seeming close to an agreement on the accounting treatment of these losses, the two states reached an impasse, and the river master was forced to decide how to allocate them. He eventually decided that Texas should bear most of the evaporation losses, and all of them after March 1, 2015, when there was no longer a flood-control reason to keep the water in Brantley. He based this decision on a provision of the “River Master’s Manual,” which is incorporated by reference in the Supreme Court’s decree that resolved the earlier litigation. Texas challenged this determination, and the Court agreed to review it under a provision of the decree providing for such decisions to be reviewed under a “clearly erroneous” standard.
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