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SCOTUS Takes on ‘Very Technical Stuff’ in State Water Dispute

Oct. 5, 2020, 4:47 PM

The Supreme Court delved into a complex water dispute Monday, puzzling over Texas and New Mexico’s latest squabble over how to share water from the Pecos River.

The court heard oral arguments by phone in Texas v. New Mexico, an original jurisdiction case that’s been on the docket for decades. The two states are struggling to implement and adjudicate the frequent conflicts that have arisen from their 70-year-old water compact.

“It’s very technical stuff here,” Justice Stephen Breyer said early on during Monday’s session.

Indeed, the dispute marks a tame start for the Supreme Court’s environmental docket this term. While a political battle rages over the seat of the late Justice Ruth Bader Ginsburg, and high-profile climate and energy showdowns loom, Monday’s water case involves detailed facts that are less likely to split the justices along ideological lines.

The case will nevertheless have big impacts on the two states. Texas Solicitor General Kyle D. Hawkins stressed at the start of arguments that a ruling against it would cause “incalculable economic harm.”

New Mexico, in turn, said an adverse ruling would have “real-life implications” for local farmers that depend on the Pecos River. A ruling for Texas would even invite more interstate water wars to the Supreme Court, said Montgomery & Andrews P.A. attorney Jeffrey J. Wechsler, representing New Mexico.

Water Storage

The Pecos River runs more than 900 miles from northern New Mexico to western Texas. A court-appointed “river master” handles annual calculations for the states.

The two states disagree on whether the official gave New Mexico too much credit for water deliveries to Texas during a period of heavy rains and flooding from a major storm in 2014. New Mexico got some credit for water held in a federal Bureau of Reclamation reservoir that was ultimately lost to evaporation.

Texas said the Pecos River Compact doesn’t allow New Mexico to get credit for delivering water that never made it across the border. New Mexico countered that it would have delivered the water if Texas hadn’t asked the state to store it.

That’s a key point of contention in the case: whether the bureau stored the water at Texas’s request, or simply to avert potential flooding—and how each scenario affects New Mexico’s delivery credit.

River Master’s Determination

Breyer questioned Texas on why the court shouldn’t just defer to the river master’s determination, saying, “That’s why we appoint river masters to figure those things out.”

Chief Justice John Roberts and others also pressed both sides to clarify their views on the legal standard the court should apply when reviewing the river master’s decision.

Masha G. Hansford, assistant to the U.S. solicitor general, argued for the U.S. that the river master’s determination is correct under any standard, and should be afforded “a lot of persuasive weight.”

Wechsler, the New Mexico lawyer, warned the justices that a ruling for Texas would undermine the river master’s ability to resolve water disputes, sending more state-versus-state water conflicts to the high court.

The Supreme Court’s resolution of the case will signal whether the justices are willing to read decades-old water compacts strictly or flexibly in the face of extreme weather and other unforeseen circumstances, University of Utah water law scholar Robin Kundis Craig said ahead of Monday’s arguments.

Interstate water disputes, which can take a direct route to the Supreme Court under its original jurisdiction, are expected to increase as climate change stresses water supplies. The justices will hear a separate dispute between Florida and Georgia later this term.

The case is Texas v. New Mexico, U.S., No. 22O65, oral arguments held 10/5/20.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloomberglaw.com

To contact the editors responsible for this story: Anna Yukhananov at ayukhananov@bloombergindustry.com; Chuck McCutcheon at cmccutcheon@bloombergindustry.com

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