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Long-Running Pecos River Snarl Captivates High Court Again

WASHINGTON (CN) — In its first-ever tango with a decision from a court-appointed river master, the U.S. Supreme Court granted review Monday in a case dating back to 1974 involving apportionment of the Pecos River.

The order came about a month after the high court kicked off its 2020 term with arguments in the dispute that focuses on a 1940s compact between Texas and New Mexico.

Under the deal, both states pledged to maintain the river, and New Mexico agreed not to deplete it.

But in 1974, Texas sought original jurisdiction to challenge the deal before the Supreme Court. Every year, a river master is appointed and the states duke it out to decide how much water is owed to Texas by New Mexico.

Reinvigorating tensions in 2014, Hurricane Odile dumped thousands of gallons on the American Southwest and the Red Bluff Reservoir — positioned on the Texas-New Mexico border — and Texas asked New Mexico to temporarily store some 51,000 acre-feet of water. 

By the time Texas was ready to take the water back, however, a significant portion of it had already evaporated. The appointed river master ultimately granted New Mexico credits for the undelivered water, prompting a challenge from Texas. In addition to arguing that it shouldn’t be held responsible for the evaporative losses, Texas said the river master does not have the authority to amend past reports.

Jeffrey Wechsler, a Montgomery & Andrews attorney representing New Mexico, said in an interview Monday that the review that the Supreme Court granted Texas on Monday involves an accounting of the Hurricane Odile water credits. Wechsler said Texas is arguing that whatever practices are decided for accounting the credits in the at-issue case, those methods should be the primary formulas used going forward.

“It’s basically saying, ‘whatever you decide court, with the credit to New Mexico for the evaporation, that should apply going forward,” Wechsler said. “And so, I think as a precautionary matter I think what they’re doing, is they objected to the 2019 report and the 2020 report just to flag the issue for the court.”

So far as broader implications for the Pecos River master, or other river masters, Wechsler said the review was more focused on the bordering states’ specific dispute.

Besides, there’s only one other river master appointed by the Supreme Court: the Delaware River master, which monitors flows from New Jersey, Pennsylvania and New York. But it’s rare those parties will have a dispute.

“The one on the Pecos River is the only one that has ever been appointed that was over the opposition of one of the states,” Wechsler said. “The states on the Delaware River on that compact, they agreed to a river master, so it’s a little bit different.”

Kyle Hawkins, an attorney with the Texas Attorney General’s office, did not respond to a request for comment Monday.

Justice Amy Coney Barrett, who heard her first oral arguments from the virtual bench Monday, did not participate in any decisions relating to the this morning’s order list. The 103rd justice participated in her first court conference Friday. 

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