New Mexico takes a victory in water dispute

Not so fast, Texas.

The U.S. Supreme Court handed New Mexico a victory Monday morning in a Pecos River water dispute with Texas.

The court’s opinion, delivered by Justice Brett Kavanaugh, says the court-appointed Pecos river master was correct in giving New Mexico delivery credit for water that had evaporated from Brantley Reservoir. The court denied Texas’ motion to review the river master’s decision.

“Here, the water was stored in New Mexico at the request of Texas, so New Mexico’s delivery obligation must be reduced by the amount of water that evaporated during its storage,” the opinion says.

The U.S. Bureau of Reclamation held water in the reservoir near Carlsbad after a September 2014 storm flooded the region.

About 21,000 acre-feet, or 6.8 billion gallons, had evaporated by August 2015 when Reclamation released the water to the Texas state line.

The river master gave New Mexico delivery credit for about 16,000 acre-feet, a decision Texas disputed and eventually brought before the nation’s highest court.

Rolf Schmidt-Petersen, director of the New Mexico Interstate Stream Commission, said the state is pleased with the decision.

“We were trying to be helpful to Texas,” Schmidt-Petersen said after Monday’s ruling. “These lawyers are working on a number of different things, and for them to be able to take on something like this that is very much in the weeds, get that information out in front of the Supreme Court in a very short period of time and have that resonate - we hope we can carry that forward to other rivers.”

Texas and New Mexico are in ongoing litigation over the Rio Grande Compact.

Two months after the September 2014 storm, Texas’ Pecos River commissioner emailed the New Mexico commissioner with the subject line, “Texas request for storage.”

The email asked that New Mexico hold the water until it could be used in Red Bluff Reservoir in Texas.

During oral arguments in early October, Texas lawyers argued that Reclamation stored the water for flood control, not Texas’ eventual use. The state said the decision deprived West Texas of valuable irrigation water.

New Mexico argued that the water would have been released if only Texas had requested it and said the Lone Star State should bear the evaporative losses. The court agreed, saying that none of Texas’ arguments were persuasive.

Justice Samuel Alito filed an opinion “concurring in the judgment in part and dissenting in part.”

Alito said “there were violations all around” regarding deadlines for objecting to annual river calculations.

“Going forward, the States and the River Master should take better care to abide by the terms of the amended decree,” Alito wrote.

Alito failed to convince his colleagues of his position that the river master should redo the 2014 calculations because the water was being stored by Reclamation for flood control, and not solely because of Texas’ request.