A sonnet to a problem river

  • Book cover of High and Dry

 

The Pecos River begins its 900-mile run high in the Sangre de Cristo Range of the Colorado and Northern New Mexico Rocky Mountains, and descends through New Mexico's lowlands "of Western myth and solid American values," as Emlen Hall writes in High and Dry: The Texas-New Mexico Struggle for the Pecos River. Finally, the author writes, the river bends its way across the Texas-New Mexico border into the "blasted heath" of west Texas.

Emlen Hall is a writer, gardener, University of New Mexico law professor, and lawyer who worked for New Mexico on litigation over the meaning of the 1948 Pecos River Compact. Ultimately, this sonnet to the unpredictable Pecos River is also a dirge about the failings of water administrators, engineers and lawyers to comprehend a river they set out to divide.

The goal of the two-state compact was to wring the greatest use out of this "problem river." The Pecos "problem" was one of extremes: too much water in one year, too little in another, and a history of dam-destroying floods.

But the bigger problem was how to turn the compact's fair words into limits on New Mexico's diversions. That task took more than 15 years, the payment of $14 million in damages by New Mexico to Texas, and the appointment of a river master to gauge New Mexico's depletion. In the end, New Mexico paid nearly $41 million to buy and retire 25,472 acre feet of water that had been irrigating 8,743.84 acres of land in the Roswell and Carlsbad areas. But even today, it's still unclear how New Mexico can deliver the amount of water to which Texas is entitled.

The ultimate Pecos challenge has been man's refusal to understand nature's basic river law: that surface stream and tributary ground water are connected and finite. When the Pecos breaks out of its high mountain stronghold into its middle reach, the river gains its base flow from tributary ground water seeping into the channel, bolstered by huge but unpredictable inflows from floods. The 1948 Pecos River Compact tried to deal with the unpredictable flows by requiring that New Mexico maintain the "1947 condition" at the state line. That meant that New Mexicans, collectively, could not use any more water than they had consumed in 1947. Texas would get what was left over, whether it was a huge bounty or a few acre-feet due to drought. This seemed a fair preservation of the status quo; so, with the consent of the two state legislatures and the United States Congress, the interstate apportionment occurred.

From then on, it was up to New Mexico, which meant it was up to the late, legendary state water engineer Steve Reynolds to make sure New Mexican irrigators controlled themselves. Instead, New Mexico ignored well pumping in the Roswell area, and promoted the drilling of new wells in the Carlsbad area. Finally, it refused to enforce the priority system against the holders of junior rights. When the Texas lawyers came calling, New Mexico argued that saltcedars were sucking up the missing water and that the compact guaranteed all its water uses as of 1947, regardless of depletions they caused to state-line flows.

But the water masters sitting as hearing officers for the U.S. Supreme Court ruled that New Mexico had violated the compact, under-delivering 370,000 acre feet of water to Texas from 1950 to 1983. The court rejected New Mexico's exceptions. Says Hall in summation: "If we acknowledge that ground water and surface water are interconnected, as they surely are, then the Roswell Basin estimates clearly show that New Mexicans went right on developing the Pecos River before, during, and well after the 1947 cutoff date set by the 1948 compact."

High and Dry is fascinating, enjoyable to read, well-documented, but, most of all, thoroughly surprising. Here's a lawyer who worked on the case confessing that a legal instrument approved by two states and the United States couldn't begin to constrain man's ability to strain a river to its vanishing point.

The sonnet? Read Hall's last chapter about working the Pecos River water to his garden for chili and basil. It's musical.

High and Dry: The Texas-New Mexico Struggle for the Pecos River, by G. Emlen Hall. University of New Mexico Press 2002. Hardcover: $39.95. 302 pages

Greg Hobbs is a Justice of the Colorado Supreme Court.

Copyright © 2002 HCN and Greg Hobbs

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