WATER CODE
CHAPTER 42. PECOS RIVER COMPACT
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
Amended by Acts 1985, 69th Leg., ch. 607, § 2.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Sept. 1, 1985.
§ 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, § 1, eff. Aug. 30, 1971.
§ 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, § 1, eff. Aug. 30, 1971.
Amended by Acts 1985, 69th Leg., ch. 607, § 3, eff. Sept. 1,
1985; Acts 1985, 69th Leg., ch. 795, § 1.135, eff. Sept. 1,
1985; Acts 1987, 70th Leg., ch. 977, § 34, eff. June 19, 1987;
Acts 1995, 74th Leg., ch. 76, § 11.315, eff. Sept. 1, 1995.
§ 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, § 1, eff. Aug. 30, 1971.
