New Mexico Gets High Court Blessing in Evaporated Water Fight

Pecos River near the Rio Grande (Image via Wikipedia)

WASHINGTON (CN) — The U.S. Supreme Court was nearly unanimous Monday in clearing New Mexico over the evaporation of precious Pecos River water on its watch when the hurricane-hit Texas needed storage help. 

The states entered a compact in 1940 to maintain the river’s volume and leave its flow uninhibited. 

More than 30 years later, Texas challenged the agreement in its original jurisdiction of the Supreme Court, which appointed a river master tasked with publishing a yearly report. That document outlines New Mexico’s obligations to Texas in yearly Pecos River water, based on a formula. 

When Hurricane Odile dumped thousands of gallons on the Red Bluff Reservoir in 2014, New Mexico’s obligation to Texas was complicated. Texas asked its Western-bordering neighbor to hold some 51,000 acre-feet of water until the reservoir could handle it and New Mexico obliged. 

Though a significant amount had evaporated by the next year, the river master still granted New Mexico credits for the undelivered water.

The Supreme Court heard arguments on a protest from Texas this fall but denied the motion for review Monday, concluding that the text of the states’ compact easily resolves the dispute. While Texas argues New Mexico was holding back the water for environmental purposes in light of a weather event, and that “stored” implied the water was being held for beneficial use, the court said “stored” should be defined in its ordinary meaning.

“Indeed, Texas’s initial request to New Mexico came in an e-mail with the hard-to-misunderstand subject line ‘Texas request for storage,’” Justice Brett Kavanaugh wrote.

He added: “The water was stored in New Mexico at the request of Texas. Some of the water then evaporated before it was released to Texas. Under those circumstances, as the River Master correctly concluded, New Mexico is entitled to delivery credit for the evaporated water.” (Emphasis in original.)

Justice Amy Coney Barrett did not participate in the ruling as she was not confirmed in time to do so, but every other justice joined Kavanaugh’s opinion either in full or in part.

Due to the Pecos River’s irregular water levels, the court emphasized, the interstate agreement doesn’t enumerate a specific amount of water for either state to send to the other. 

“Texas’s argument disregards the history of the proceedings in this case,” Kavanaugh wrote. “Both states agreed to postpone the river master’s resolution of the evaporated-water issue while they negotiated and sought an agreement. The river master’s annual reports in turn repeatedly explained that the states were trying to negotiate a solution to the issue. … Texas cannot now run away from the procedure that it agreed to.”

Justice Samuel Alito concurred with the 10-page opinion only in part, writing separately that he would have vacated the judgment on whether the river master properly allocated the water that evaporated.

“In sanctioning the river master’s handling of this issue, the court ignores critical facts,” Alito wrote. “The decision to store the water, as well as the decision eventually to release it, was made by the federal Bureau of Reclamation.”

Alito said the federal involvement muddies the proverbial waters.

“Perhaps the states’ exchange of emails should be seen as simply an agreement that the bureau should hold the water to prevent flooding,” Alito wrote. “Perhaps the river master thought that the bureau acted ultra vires and stored the water for all or part of the time in question simply because Texas so requested. In any event, it is necessary to fit together in a coherent picture the actions taken by the federal and state authorities.”

Texas Solicitor General Kyle Hawkins did not return a request for comment. Jeffrey Wechsler, an attorney for Montgomery & Adams who argued for New Mexico, referred a request for comment Monday to John D’Antonio, a New Mexico state engineer.

“Though the hard work of many stakeholders, we have accumulated a substantial compact credit, and we will continue to ensure that New Mexico meets its obligations under the Pecos River Compact,” D’Antonio said in a statement.

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