CHAPTER 42. PECOS RIVER COMPACT - Texas Statutes

WATER CODE

TITLE 3. RIVER COMPACTS

CHAPTER 42. PECOS RIVER COMPACT

Sec. 42.001. RATIFICATION. The Pecos River Compact, the text of

which is set out in Section 42.010 of this code, was ratified by

the legislature of this state in Chapter 30, Acts of the 51st

Legislature, Regular Session, 1949, after having been signed at

Santa Fe, New Mexico, on December 3, 1948, by John H. Bliss,

commissioner for the State of New Mexico, and Charles H. Miller,

commissioner for the State of Texas, and approved by Berkeley

Johnson, representing the United States.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.002. ORIGINAL COPY. An original copy of the compact is

on file in the office of the secretary of state.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.003. COMMISSIONER. The governor, with the advice and

consent of the senate, shall appoint a commissioner to represent

this state on the commission established by Article V of the

compact.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.004. TERM OF OFFICE. The commissioner holds office for

a term of six years and until his successor is appointed and has

qualified.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Amended by Acts 1985, 69th Leg., ch. 607, Sec. 2.

Sec. 42.005. OATH. The commissioner shall take the

constitutional oath of office and shall also take an oath to

faithfully perform his duties as commissioner.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.006. COMPENSATION; EXPENSES. The commissioner is

entitled to compensation as provided by legislative

appropriation. He is entitled to reimbursement for actual

expenses incurred while traveling in the discharge of his duties.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.007. EMPLOYEES; ADMINISTRATIVE EXPENSES. The

commissioner may employ engineering, legal, and clerical

personnel as necessary to protect the interest of the state and

to carry out and enforce the terms of the compact. He may incur

necessary office expenses and other expenses incident to the

proper performance of his duties and the proper administration of

the compact. However, the commissioner shall not incur any

financial obligation on behalf of this state until the

legislature has authorized and appropriated money for the

obligation.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.0071. NOTICE OF COMPACT MEETINGS. For informational

purposes, the commissioner shall file with the secretary of state

notice of compact meetings for publication in the Texas Register.

Added by Acts 1985, 69th Leg., ch. 607, Sec. 1, eff. Sept. 1,

1985.

Sec. 42.008. POWERS AND DUTIES. (a) The commissioner is

responsible for administering the provisions of the compact, and

he has all the powers and duties prescribed by the compact.

(b) The commissioner may meet and confer with the New Mexico

commissioner at any place the commission considers proper.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Sec. 42.009. COOPERATION OF TEXAS NATURAL RESOURCE CONSERVATION

COMMISSION. The Texas Natural Resource Conservation Commission

shall cooperate with the commissioner in the performance of his

duties and shall furnish him any available data and information

he needs.

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.

Amended by Acts 1985, 69th Leg., ch. 607, Sec. 3, eff. Sept. 1,

1985; Acts 1985, 69th Leg., ch. 795, Sec. 1.135, eff. Sept. 1,

1985; Acts 1987, 70th Leg., ch. 977, Sec. 34, eff. June 19, 1987;

Acts 1995, 74th Leg., ch. 76, Sec. 11.315, eff. Sept. 1, 1995.

Sec. 42.010. TEXT OF COMPACT. The Pecos River Compact reads as

follows:

PECOS RIVER COMPACT

Entered Into by the States of

NEW MEXICO

and

TEXAS

Santa Fe, New Mexico

December 3, 1948

PECOS RIVER COMPACT

The State of New Mexico and the State of Texas, acting through

their Commissioners, John H. Bliss for the State of New Mexico

and Charles H. Miller for the State of Texas, after negotiations

participated in by Berkeley Johnson, appointed by the President

as the representative of the United States of America, have

agreed respecting the uses, apportionment and deliveries of the

water of the Pecos River as follows:

Article I

The major purposes of this Compact are to provide for the

equitable division and apportionment of the use of the waters of

the Pecos River; to promote interstate comity; to remove causes

of present and future controversies; to make secure and protect

present development within the states; to facilitate the

construction of works for, (a) the salvage of water, (b) the more

efficient use of water, and (c) the protection of life and

property from floods.

Article II

As used in this Compact:

(a) The term "Pecos River" means the tributary of the Rio Grande

which rises in north-central New Mexico and flows in a southerly

direction through New Mexico and Texas and joins the Rio Grande

near the town of Langtry, Texas, and includes all tributaries of

said Pecos River.

(b) The term "Pecos River Basin" means all of the contributing

drainage area of the Pecos River and its tributaries above its

mouth near Langtry, Texas.

(c) "New Mexico" and "Texas" mean the State of New Mexico and

the State of Texas, respectively; "United States" means the

United States of America.

(d) The term "Commission" means the agency created by this

Compact for the administration thereof.

(e) The term "deplete by man's activities" means to diminish the

stream flow of the Pecos River at any given point as the result

of beneficial consumptive uses of water within the Pecos River

Basin above such point. For the purposes of this Compact it does

not include the diminution of such flow by encroachment of salt

cedars or other like growth, or by deterioration of the channel

of the stream.

(f) The term "Report of the Engineering Advisory Committee"

means that certain report of the Engineering Advisory Committee

dated January, 1948, and all appendices thereto; including, basic

data, processes, and analyses utilized in preparing that report,

all of which were reviewed, approved, and adopted by the

Commissioners signing this Compact at a meeting held in Santa Fe,

New Mexico, on December 3, 1948, and which are included in the

Minutes of that meeting.

(g) The term "1947 condition" means that situation in the Pecos

River Basin as described and defined in the Report of the

Engineering Advisory Committee. In determining any question of

fact hereafter arising as to such situation, reference shall be

made to, and decisions shall be based on, such report.

(h) The term "water salvaged" means that quantity of water which

may be recovered and made available for beneficial use and which

quantity of water under the 1947 condition was non-beneficially

consumed by natural processes.

(i) The term "unappropriated flood waters" means water

originating in the Pecos River Basin above Red Bluff Dam in

Texas, the impoundment of which will not deplete the water usable

by the storage and diversion facilities existing in either state

under the 1947 condition and which if not impounded will flow

past Girvin, Texas.

Article III

(a) Except as stated in paragraph (f) of this Article, New

Mexico shall not deplete by man's activities the flow of the

Pecos River at the New Mexico-Texas state line below an amount

which will give to Texas a quantity of water equivalent to that

available to Texas under the 1947 condition.

(b) Except as to the unappropriated flood waters thereof, the

apportionment of which is included in and provided for by

paragraph (f) of this Article, the beneficial consumptive use of

the waters of the Delaware River is hereby apportioned to Texas,

and the quantity of such beneficial consumptive use shall be

included in determining waters received under the provisions of

paragraph (a) of this Article.

(c) The beneficial consumptive use of water salvaged in New

Mexico through the construction and operation of a project or

projects by the United States or by joint undertakings of Texas

and New Mexico, is hereby apportioned forty-three per cent (43%)

to Texas and fifty-seven per cent (57%) to New Mexico.

(d) Except as to water salvaged, apportioned in paragraph (c) of

this Article, the beneficial consumptive use of water which shall

be non-beneficially consumed, and which is recovered, is hereby

apportioned to New Mexico but not to have the effect of

diminishing the quantity of water available to Texas under the

1947 condition.

(e) Any water salvaged in Texas is hereby apportioned to Texas.

(f) Beneficial consumptive use of unappropriated flood waters is

hereby apportioned fifty per cent (50%) to Texas and fifty per

cent (50%) to New Mexico.

Article IV

(a) New Mexico and Texas shall cooperate to support legislation

for the authorization and construction of projects to eliminate

nonbeneficial consumption of water.

(b) New Mexico and Texas shall cooperate with agencies of the

United States to devise and effectuate means of alleviating the

salinity conditions of the Pecos River.

(c) New Mexico and Texas each may:

(i) Construct additional reservoir capacity to replace reservoir

capacity made unusable by any cause.

(ii) Construct additional reservoir capacity for the utilization

of water salvaged and unappropriated flood waters apportioned by

this Compact to such state.

(iii) Construct additional reservoir capacity for the purpose of

making more efficient use of water apportioned by this Compact to

such state.

(d) Neither New Mexico nor Texas will oppose the construction of

any facilities permitted by this Compact, and New Mexico and

Texas will cooperate to obtain the construction of facilities

that will be of joint benefit to the two states.

(e) The Commission may determine the conditions under which

Texas may store water in works constructed in and operated by New

Mexico.

(f) No reservoir shall be constructed and operated in New Mexico

above Avalon Dam for the sole benefit of Texas unless the

Commission shall so determine.

(g) New Mexico and Texas each has the right to construct and

operate works for the purpose of preventing flood damage.

(h) All facilities shall be operated in such manner as to carry

out the terms of this Compact.

Article V

(a) There is hereby created an interstate administrative agency

to be known as the "Pecos River Commission." The Commission shall

be composed of one Commissioner representing each of the states

of New Mexico and Texas, designated or appointed in accordance

with the laws of each such state, and, if designated by the

President, one Commissioner representing the United States. The

President is hereby requested to designate such a Commissioner.

If so designated, the Commissioner representing the United States

shall be the presiding officer of the Commission, but shall not

have the right to vote in any of the deliberations of the

Commission. All members of the Commission must be present to

constitute a quorum.

(b) The salaries and personal expenses of each Commissioner

shall be paid by the government which he represents. All other

expenses which are incurred by the Commission incident to the

administration of this Compact and which are not paid by the

United States shall be borne equally by the two states. On or

before November 1 of each even numbered year the Commission shall

adopt and transmit to the Governors of the two states and to the

President a budget covering an estimate of its expenses for the

following two years. The payment of the expenses of the

Commission and of its employees shall not be subject to the audit

and accounting procedures of either of the two states. However,

all receipts and disbursements of funds handled by the Commission

shall be audited yearly by a qualified independent public

accountant and the report of the audit shall be included in, and

become a part of, the annual report of the Commission.

(c) The Commission may appoint a secretary who, while so acting,

shall not be an employee of either state. He shall serve for such

term, receive such salary, and perform such duties as the

Commission may direct. The Commission may employ such

engineering, legal, clerical, and other personnel as in its

judgment may be necessary for the performance of its functions

under this Compact. In the hiring of employees the Commission

shall not be bound by the civil service laws of either state.

(d) The Commission, so far as consistent with this Compact,

shall have power to:

1. Adopt rules and regulations;

2. Locate, establish, construct, operate, maintain, and abandon

water gaging stations, independently or in cooperation with

appropriate governmental agencies;

3. Engage in studies of water supplies of the Pecos River and its

tributaries, independently or in cooperation with appropriate

governmental agencies;

4. Collect, analyze, correlate, preserve and report on data as to

the stream flows, storage, diversions, salvage, and use of the

waters of the Pecos River and its tributaries, independently or

in cooperation with appropriate governmental agencies;

5. Make findings as to any change in depletion by man's

activities in New Mexico, and on the Delaware River in Texas;

6. Make findings as to the deliveries of water at the New

Mexico-Texas state line;

7. Make findings as to the quantities of water salvaged and the

amount thereof delivered at the New Mexico-Texas state line;

8. Make findings as to quantities of water non-beneficially

consumed in New Mexico;

9. Make findings as to quantities of unappropriated flood waters;

10. Make findings as to the quantities of reservoir losses from

reservoirs constructed in New Mexico which may be used for the

benefit of both states, and as to the share thereof charged under

Article VI hereof to each of the states;

11. Acquire and hold such personal and real property as may be

necessary for the performance of its duties hereunder and to

dispose of the same when no longer required;

12. Perform all functions required of it by this Compact and do

all things necessary, proper or convenient in the performance of

its duties hereunder, independently or in cooperation with

appropriate governmental agencies;

13. Make and transmit annually to the Governors of the signatory

states and to the President of the United States on or before the

last day of February of each year, a report covering the

activities of the Commission for the preceding year.

(e) The Commission shall make available to the Governor of each

of the signatory states any information within its possession at

any time, and shall always provide free access to its records by

the Governors of each of the States, or their representatives, or

authorized representatives of the United States.

(f) Findings of fact made by the Commission shall not be

conclusive in any court, or before any agency or tribunal, but

shall constitute prima facie evidence of the facts found.

(g) The organization meeting of the Commission shall be held

within four months from the effective date of this Compact.

Article VI

The following principles shall govern in regard to the

apportionment made by Article III of this Compact:

(a) The Report of the Engineering Advisory Committee,

supplemented by additional data hereafter accumulated, shall be

used by the Commission in making administrative determinations.

(b) Unless otherwise determined by the Commission, depletions by

man's activities, state-line flows, quantities of water salvaged,

and quantities of unappropriated flood waters shall be determined

on the basis of three-year periods reckoned in continuing

progressive series beginning with the first day of January next

succeeding the ratification of this Compact.

(c) Unless and until a more feasible method is devised and

adopted by the Commission the inflow-outflow method, as described

in the Report of the Engineering Advisory Committee, shall be

used to:

(i) Determine the effect on the state-line flow of any change in

depletions by man's activities or otherwise, of the waters of the

Pecos River in New Mexico.

(ii) Measure at or near the Avalon Dam in New Mexico the

quantities of water salvaged.

(iii) Measure at or near the state line any water released from

storage for the benefit of Texas as provided for in subparagraph

(d) of this Article.

(iv) Measure the quantities of unappropriated flood waters

apportioned to Texas which have not been stored and regulated by

reservoirs in New Mexico.

(v) Measure any other quantities of water required to be

measured under the terms of this Compact which are susceptible of

being measured by the inflow-outflow method.

(d) If unappropriated flood waters apportioned to Texas are

stored in facilities constructed in New Mexico, the following

principles shall apply:

(i) In case of spill from a reservoir constructed in and

operated by New Mexico, the water stored to the credit of Texas

will be considered as the first water to spill.

(ii) In case of spill from a reservoir jointly constructed and

operated, the water stored to the credit of either state shall

not be affected.

(iii) Reservoir losses shall be charged to each state in

proportion to the quantity of water belonging to that state in

storage at the time the losses occur.

(iv) The water impounded to the credit of Texas shall be

released by New Mexico on the demand of Texas.

(e) Water salvaged shall be measured at or near the Avalon Dam

in New Mexico and to the quantity thereof shall be added a

quantity equal to the quantity of salvaged water depleted by

man's activities above Avalon Dam. The quantity of water salvaged

that is apportioned to Texas shall be delivered by New Mexico at

the New Mexico-Texas state line. The quantity of unappropriated

flood waters impounded under paragraph (d) of this Article, when

released shall be delivered by New Mexico at the New Mexico-Texas

state line in the quantity released less channel losses. The

unappropriated flood waters apportioned to Texas by this Compact

that are not impounded in reservoirs in New Mexico shall be

measured and delivered at the New Mexico-Texas state line.

(f) Beneficial use shall be the basis, the measure, and the

limit of the right to use water.

Article VII

In the event of importation of water by man's activities to the

Pecos River Basin from any other river basin the state making the

importation shall have the exclusive use of such imported water.

Article VIII

The provisions of this Compact shall not apply to, or interfere

with, the right or power of either signatory state to regulate

within its boundaries the appropriation, use and control of

water, not inconsistent with its obligations under this Compact.

Article IX

In maintaining the flows at the New Mexico-Texas state line

required by this Compact, New Mexico shall in all instances apply

the principle of prior appropriation within New Mexico.

Article X

The failure of either state to use the water, or any part

thereof, the use of which is apportioned to it under the terms of

this Compact, shall not constitute a relinquishment of the right

to such use, nor shall it constitute a forfeiture or abandonment

of the right to such use.

Article XI

Nothing in this Compact shall be construed as:

(a) Affecting the obligations of the United States under the

Treaty with the United Mexican States (Treaty Series 994);

(b) Affecting any rights or powers of the United States, its

agencies or instrumentalities, in or to the waters of the Pecos

River, or its capacity to acquire rights in and to the use of

said waters;

(c) Subjecting any property of the United States, its agencies

or instrumentalities, to taxation by any state or subdivision

thereof, or creating any obligation on the part of the United

States, its agencies or instrumentalities, by reason of the

acquisition, construction or operation of any property or works

of whatever kind, to make any payment to any state or political

subdivision thereof, state agency, municipality or entity

whatsoever, in reimbursement for the loss of taxes;

(d) Subjecting any property of the United States, its agencies

or instrumentalities, to the laws of any state to an extent other

than the extent to which such laws would apply without regard to

this Compact.

Article XII

The consumptive use of water by the United States or any of its

agencies, instrumentalities or wards shall be charged as a use by

the state in which the use is made; provided, that such

consumptive use incident to the diversion, impounding, or

conveyance of water in one state for use in the other state shall

be charged to such latter state.

Article XIII

This Compact shall not be construed as establishing any general

principle or precedent applicable to other interstate streams.

Article XIV

This Compact may be terminated at any time by appropriate action

of the legislatures of both of the signatory states. In the event

of such termination, all rights established under it shall

continue unimpaired.

Article XV

This Compact shall become binding and obligatory when it shall

have been ratified by the legislature of each State and approved

by the Congress of the United States. Notice of ratification by

the legislature of each State shall be given by the Governor of

that State to the Governor of the other State and to the

President of the United States, and the President is hereby

requested to give notice to the Governor of each State of

approval by the Congress of the United States.

In Witness Whereof, the Commissioners have executed three

counterparts hereof each of which shall be and constitute an

original, one of which shall be deposited in the archives of the

Department of State of the United States, and one of which shall

be forwarded to the Governor of each State.

Done at the City of Santa Fe, State of New Mexico, this 3rd day

of December, 1948.

______________________________________

JOHN H. BLISS

Commissioner for the State of New

Mexico

______________________________________

CHARLES H. MILLER

Commissioner for the State of Texas

APPROVED

_________________________________________

BERKELEY JOHNSON

Representative of the United States of America

Acts 1971, 62nd Leg., p. 110, ch. 58, Sec. 1, eff. Aug. 30, 1971.