Case No. 65 | Original
October 5, 2020
Preview by Nick Contarino, Online Editor
In this case of original jurisdiction, the Supreme Court addresses New Mexico’s water delivery obligations to Texas in the aftermath of Tropical Storm Odile in 2014. The Court must determine (1) whether the River Master had the authority to entertain New Mexico’s request for delivery credit under the Pecos River Compact and (2) whether the River Master clearly erred in calculating New Mexico’s delivery credit for evaporation losses under the Pecos River Compact.
In September 2014 heavy rainfall caused increased flow to the Brantley Reservoir in New Mexico, a reservoir owned and operated by the United States’ Bureau of Reclamation (“Reclamation”) as part of the Carlsbad Project (“Project”). Brief for the United States as Amicus Curiae at 7, Texas v. New Mexico, No. 65, Original (U.S. filed Dec. 9, 2019). In October 2014 Reclamation exercised its flood control authority to hold back the excess water to prevent downstream flooding in both New Mexico and Texas, causing the reservoir to go above its Project limit. Id. at 7–8. As a result, 21,071 acre-feet of water above the Project limit evaporated from the reservoir. Id. at 11. After failing to reach an agreement with Texas regarding the appropriation of the evaporated water, New Mexico filed a motion asking the River Master—a Supreme Court-appointed authority charged with making calculations related the two states’ water disputes under the state compact giving rise to this case—to provide a 21,071 acre-foot credit to New Mexico for the evaporation losses in 2014. Id. at 1–3, 12. The River Master issued a final determination in September 2018, splitting the evaporation charges 50-50 before November 2014, and shifted all evaporation charges after that date to Texas. Id. at 14. The River Master then amended the River Master’s Manual containing its calculation methodology to authorize retroactive adjustments, and then awarded a 16,627-acre-foot delivery credit to New Mexico by adding it to the accounting table for water year 2015. Id.
A final determination made by the River Master is subject to review by the Supreme court “only on a showing that the Final Determination is clearly erroneous.” Texas v. New Mexico, 485 U.S. 388, 393 (1988). The parties first dispute procedural matters. Texas asserts that the River Master’s decision to retroactively award delivery credits to New Mexico was clearly erroneous because (1) New Mexico did not object to the initial water year 2015 report within 30 days, (2) no authority permits the River Master’s retroactive modification of past reports over a party’s objection, and (3) no authority authorized the “equitable tolling the River Master applied to consider New Mexico’s time-barred objections.” Mot. for R. of River Master’s Final Det. at 14, Texas v. New Mexico, No. 65, Original (U.S. filed Dec. 17, 2018). New Mexico asserts that they would be unfairly charged for the evaporation under Texas’ arguments, and contend that (1) the River Master properly exercised his discretion to adopt a procedure to resolve the accounting of the evaporation, (2) New Mexico was justified in relying upon on the River Master’s procedure, (3) the Compact plainly contemplates adjustments within a three-year accounting period, and (4) equitable principles justify granting New Mexico the one-time credit. State of New Mexico’s Response to Texas’s Mot. for Rev. of River Master’s Final Det. at 18–27, No. 65, Original (U.S. filed Feb. 15, 2019). If the Court finds the procedure the River Master followed was appropriate, it must then determine whether the River Master clearly erred in his apportionment of the evaporation loses.
Texas asserts that the water held above the Project limit should be treated as “treated as ‘unappropriated flood water’ with 50% allocated to Texas.” Brief for the United States at 12. Texas bases its argument on the Pecos River Compact, which defines “unappropriated flood waters” as “water originating in [New Mexico] . . . [that] if not impounded will flow past Girvin, Texas.” Act of June 9, 1949, ch. 184, art. II(i), 63 Stat. 161. Texas asserts that the River Master’s decision to apportion evaporation losses to Texas violates the Compact and is clearly erroneous because the Bureau of Reclamation, not Texas or New Mexico, chose to impound the flood water and did so only for flood control. See Mot. for R. of River Master’s Final Det. at 28.
New Mexico argues that all the water above the project limit belonged to Texas and thus all evaporation losses should be borne by Texas. See Brief for the United States at 8. It bases this claim on a November 2014 email from a Texas official that requested New Mexico to “store Texas’ portion of the [flood] until they can be utilized . . .” Id. In January 2015 New Mexico agreed to the request but noted, if not for Texas’ request, that New Mexico would have released all water above the Project’s storage limit to the Texas state line. Id. Under New Mexico’s conception of the water’s ownership, the evaporated losses on that water would be solely borne by Texas.