In December, the US Supreme Court issued an opinion in Texas v. New Mexico, a water law dispute involving the Pecos River.
The Pecos river runs from the Sangre de Cristo Mountains near Santa Fe, New Mexico through New Mexico and Texas and eventually into the Rio Grande River at the Texas-Mexico border near Del Rio, Texas. In 1949, Texas and New Mexico signed the Pecos River Compact, and Congress ratified the Compact. The Compact provides for the “equitable division and apportionment of the use of the waters of the Pecos River” with the intent to “remove causes of present and future controversies.”
The Compact does not set a specific amount of water that New Mexico must deliver to Texas each year. Instead, Article III states, ““New Mexico shall not deplete by man’s activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition.” The Compact provides that the inflow-outflow method should be used to determine whether New Mexico has met its annual delivery obligation. This method essentially looks at how much water is in the Pecos River in New Mexico to determine how much water New Mexico must allow to flow into Texas.
In 1987, after a number of disputes between the two states, the Supreme Court issued a decree addressing the States’ rights and duties. As part of this, the Court appointed a River Master to assist with calculations required by the decree. In 1988, Neil S. Gregg was named River Master, a position he continues in today. As part of his appointment, the Court amended the decree and required the River Master to calculate New Mexico’s annual delivery obligation, to determine any shortfall or overage based on actual delivery to Texas, and the net shortfall, if any, after subtracting overages accumulated in prior years. In order to make these calculations, Court instructed the River Master to abide by the “River Master’s Manual.”
In the River Master’s Manual, New Mexico ordinarily receives credit only for water that actually makes it to Texas. There are, however, exceptions. One of those exceptions, Section C.5 is titled the “Texas Water Stored in New Mexico Reservoirs.” This provision states, “If a quantity of the Texas allocation is stored in facilities constructed in New Mexico at the request of Texas then…this quantity will be reduced by the amount of reservoir losses attributable to its storage, and when released for delivery to Texas, the quantity released less channel losses is to be delivered by New Mexico at the New Mexico-Texas state line.”
The Current Dispute
In 2014, Tropical Storm Odile hit the Pecos River Basin, and quickly filled the Red Bluff Reservoir in Texas, located on the Texas-New Mexico Border near Kermit, TX. To prevent flooding, Texas asked New Mexico to temporarily store water from the Pecos River that would have otherwise flowed into Texas per the Compact. New Mexico agreed to store the water in the Brantley Reservoir in New Mexico. A few months later, New Mexico released the water to Texas. In New Mexico’s acceptance of the Texas request, New Mexico stated but for the request, it would have released the water to the Texas state line and, because of that, evaporative losses should be borne by Texas.
In August 2015, New Mexico released the water to Texas. However, during the storage period, approximately 21,000 acre-feet of water evaporated. The States were unable to reach an agreement as to how the evaporation should be handled after attempting to do for several years. In 2018, New Mexico filed a motion with the River Master seeking delivery credit for the evaporated water. In September, the River Master ruled in favor of New Mexico based upon the provisions of the River Master’s Manual Section C.5, ruling that New Mexico should receive credit for the evaporated water. Texas filed a motion for review of the River Master’s determination with the United States Supreme Court.
The Supreme Court dismissed Texas’ request for review. The 7-1 Opinion was authored by Justice Kavanaugh. Justice Barrett did not participate in the decision. [Read Opinion here.]
Initially, the Court addressed Texas’ argument that New Mexico’s motion to the River Master was untimely. Texas argued that the motion should have been filed within 30 days of the preliminary report, a deadline which would have passed years before the motion was filed. The Court stated that “Texas’ argument disregards the history of the proceedings in this case.” Both states agreed to postpone the River Master’s resolution of this issue while they attempted to negotiate a settlement. The River Master’s annual report repeatedly explained that the issue remained and the parties were attempting to reach a solution.
Next, on the merits, the Court agreed with New Mexico, stating that “the text of Section C.5 of the Manual easily resolves this case.” The text of Section C.5, along with the correspondence between the States establish that New Mexico is entitled to delivery credit for the evaporated water. The Court found none of Texas’ arguments persuasive.
First, Texas claimed that the stored water was not part of the Texas allocation referred to in Section C.5. This was easily rejected by the Court as Texas requested New Mexico to store the water, which otherwise it was therefore part of Texas’ allocation.
Second, Texas asserts that New Mexico did not “store” water pursuant to Section C.5. Texas argues that “stored” in that Section refers only toward water held for long-term beneficial use. The Court rejected this, stating that the River Master’s Manual does not define stored in this manner. Indeed, even Texas’ request to New Mexico used the term “storage.”
Third, Texas argued that it did not request the water be stored in New Mexico after March 2015, so any evaporation from March 2015 – August 2015 should be borne by Texas. Again, the evidence did not support this. Even as late as July 2015, Texas had not requested the release of the water or rescinded its request for storage before August 2015.
Thus, the Court stated that the River Master correctly concluded that New Mexico was entitled to delivery credit for the evaporated water. In light of this, the Court denied Texas’ motion for review.
Justice Alito’s Opinion
Justice Alito wrote separately, issuing an opinion concurring in part and dissenting in part.
First, Justice Alito agreed with the court’s rejection of Texas’ argument that New Mexico forfeited its objection because it was untimely. He stated that “there were violations all around” and instructed the States and the River Master to “take better care to abide by the terms of the amended decree.”
Second, he would have vacated and remanded the case with regard to the proper allocation of the evaporated water. He would instruct the River Master to “redo his analysis in accordance with the relevant terms of the amended decree and the manual.” In particular, Justice Alito notes that because the Brantley Reservoir is owned by the federal Bureau of Reclamation, it was the federal government who decided to store the water and when to release it. In light of this, Justice Alito says the relevance of Texas’ request for storage and New Mexico’s agreement with the request is unclear. He would instruct the River Master to “fit together in a coherent picture the actions taken by the federal and state authorities.” This could affect the categorization of water as “unappropriated floodwaters” or “consumptive use” or another category contemplated by the River Master’s Manual.
Finally, he would hold that the River Master’s amendment to the decree allowing for modified deadlines is invalid. He would clarify that the River Master must conform to the terms of the amended decree going forward.