Attorneys square off on water evaporation

New Mexico and Texas attorneys painted differing pictures before the U.S. Supreme Court on Monday as to why water was allowed to evaporate in Brantley Reservoir near Carlsbad instead of being delivered to Texas under the Pecos River Compact.

The U.S. Bureau of Reclamation held water in the reservoir after Tropical Storm Odile inundated the region in September 2014.

Reclamation released the water in August 2015. By that time, 21,000 acre-feet, or about 6.8 billion gallons, had evaporated. The court-appointed river master later gave New Mexico delivery credit for about 16,000 acre-feet.

Kyle Hawkins, solicitor general for Texas, said New Mexico should bear the evaporative losses because Reclamation stored the water for flood control, not for Texas’ eventual use. He said the river master’s decision “deprives the farmers and businesses of west Texas of a year’s worth of irrigation and threatens incalculable economic harm should New Mexico redeem those credits during a drought year.”

In response to a question from Justice Clarence Thomas about whether Texas was prepared to accept the water, Hawkins said the state made room in Red Bluff Reservoir in March 2015.

“But New Mexico objected to the release of the water at that time because of the ongoing disaster in Eddy County in southeastern New Mexico,” Hawkins said. “That’s why the Bureau held off until August.”

New Mexico attorney Jeffrey Wechsler said emails show the state didn’t object, but asked that the water be released at a certain rate to protect bridges.

“Quite the contrary, New Mexico made clear that, but for the request from Texas, it would have released that water to the state line,” Wechsler said.

Masha Hansford, assistant to the Solicitor General for the U.S. Department of Justice, sided with New Mexico and said the decision was “technically accurate and entirely fair.”

More rain means more water that New Mexico must deliver under the 1947 Pecos compact. Texas argued that the compact doesn’t allow for deviation from that method, and that New Mexico’s actions to account for the losses “blind-sided” them.

“But the way I read the record, really, everyone agreed that the issue would be postponed while the parties negotiated,” Justice Elena Kagan said. “And then, throughout negotiations, everyone agreed that the River Master was, in the end, going to make a one-time adjustment. So everybody agreed with this process. And then, you know, if you look at the record that way, it’s you lost, and all of a sudden you think the process isn’t any good because you came out on the short side of the process.”

The court’s opinion in the case could be handed down any time before the term ends in June 2021.