The Downstream Effects of Texas v. New Mexico

BY BONNIE C. FRAASE

On the first day of the 2020–21 term, the U.S. Supreme Court heard oral argument in Texas v. New Mexico. In this case, Texas and New Mexico dispute the Pecos River’s apportionment. Like most feuds between neighbors, this is just the latest incident in a long-running argument. To put it plainly: Tensions run high because the river often runs low; but when it rains, it pours.

The Pecos River flows from New Mexico into Texas. The Pecos cuts across the harsh Chihuahuan Desert, sourcing irrigation as it runs. The Pecos River Compact governs the Pecos’s apportionment. The Compact dates to 1949, and the associated litigation extends back to 1974. To limit its involvement in this protracted litigation, the Supreme Court tasked a technical expert—the River Master—with tabulating the apportionment. The Pecos River Master’s Manual governs the calculations. With a River Master, a manual, and a calculator, you might imagine this fact pattern would come to a simple, mathematical conclusion. You would be in good company: The Supreme Court also expected that most disputes would “prove capable of mechanical resolution and would usually involve marginal calculation adjustments.” But this dispute has turned into something more than the sum of its parts.

In September 2014, Tropical Storm Odile brought torrential rain to southern New Mexico and western Texas. Texas’s reservoir capacity quickly filled. In this emergency circumstance, the Federal Bureau of Reclamation stored the water. Such stored water is a wasting asset, and an estimated 21,000 acre-feet of

the water evaporated. Under the Compact, each state is entitled to an apportioned share of the Pecos River. But who bears the evaporation loss of this stored water? On this, the states disagree.

After the states’ negotiations stalled, the River Master decided the issue. In his 2018 Report, the River Master attributed most of the evaporation losses to Texas. The River Master calculated that New Mexico gave Texas too much water in 2015. Then, the River Master presented two potential solutions: allocate retroactively the overage to New Mexico for the year 2015 or spread the overages across three years evenly. After presenting both options, the River Master expressly noted that “neither approach creates an advantage to either state.” For “simplicity” the River Master decided to allocate the overage to 2015 in a flat, one-time credit.

Okay, what’s the big deal? Well, the River Master retroactively adjusted the 2015 Final Determination. This adjustment is beyond the Manual’s scope. So, while the River Master’s outcome might be equitable—over Texas’s arguments to the contrary—the procedure is arguably incorrect. The Manual only allows the River Master to make prospective modifications to the Manual, so this retrospective application of a modified procedure is discordant with the Compact. Attenuated questions of the parties’ timeliness in objecting to the River Master’s Report add to the morass of legal issues at stake.

Now the Supreme Court must decide: Did the River Master have discretion to apportion the Pecos River’s waters in a manner not prescribed by the Manual? And did the parties properly object to his decision? In answering the question, the Supreme Court may recontour the Manual’s scope, the River Master’s authority, and the states’ obligations. By allowing the River Master’s solution to stand, the Court would tacitly reduce the Manual from a governing document to a set of model rules. Then, the River Master would be able to apportion waters in a manner that achieves an equitable result without the strict constraints of the Compact’s procedures. New Mexico argues Odile’s “extraordinary” and “unusual” downpour permitted extra-contractual proceedings. The point is well taken, but it is also arguable that, in a time of increasing environmental variance, extraordinary circumstances will soon be ordinary occurrences. In such times, the states will require legitimate procedures to preserve their settled expectations. Given that the Pecos River recharges the Pecos Valley Aquifer and sources irrigation, the issue is more than academic. The downstream effects of this decision will impact Texans in the years to come. AL

Bonnie C. Fraase is a clerk for the U.S. District Court in the Eastern District of Texas and a former Texas Supreme Court clerk. She is a graduate of Virginia Law (J.D., 2019) and Baylor University (B.A., 2015). All views are her own.