The Pecos River Compact - Good decisions can still lead to bad outcomes

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Contributed by: Matt Fitzgerald

Contributor Perspective(s): Academic
Article last edited 14 May 2014 by Mattfitz
Article originally added by Mattfitz

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This article is linked to The Pecos River Compact and Texas - New Mexico Dispute

The history of the Pecos River serves as an interesting example of how a few key mistakes can severely reduce the effectiveness of a water agreement even if many other steps were taken properly. For example, the negotiation of the 1948 Pecos River Compact tackled each of the three key assumptions of the Water Diplomacy Framework:

• Water networks are open and continuously changing. The Pecos River Compact was deliberately left open to future model improvements and updates to better understand the nature of water in the basin. This was partially enabled by Royce Tipton’s insistence on the inflow/outflow model rather than viewing the basin as a fixed, bounded area with known resources. The negotiations also took the step of including relevant minor stakeholders when they entered the picture, including the CID for the Alamogordo Agreement and Pecos River Compact negotiations, and later on the PVACD when conservation laws were in effect.
• Water network managers must take account of uncertainty, non-linearity and feedback. Again, Tipton was quite insistent that, whatever the final form of the Compact would be, it could not be framed as a guarantee of a fixed amount of water to Texas. Instead, the 1947 condition was established as a means of defining “prior use” under the appropriation doctrine and also allowing for a translation between inflows and outflows depending on yearly floodwaters. Scenario planning was used to demonstrate the application of the proposed evaluation in different future contexts.
• Water networks need to be managed using a non-zero sum approach to negotiation. Perhaps the most impressive success of the Compact negotiations was the ability of Tipton, as a part of his unofficial mediator role in the debate, to reframe the conflict not as Texas versus New Mexico but rather both of them versus nature. This was accomplished through a combination of dire forecasting if no agreement was reached and a treatment of salt cedars and seasonal flooding as common enemies. The data used, though not directly a result of Joint Fact Finding in the early stages of the negotiation, was from a reputable objective source that both sides agreed to use (the PRJI). Salt cedars also represented a key means of creating new water for both sides, especially since reuse is unlikely when irrigation is the vast majority of water use.

Clearly then, many parts of the Pecos River Compact negotiations were conducted cooperatively and in accordance with the WDF. In addition to these bullets, we can also point to other features such as effective use of facilitation (through Tipton, who broke the deadlock through effective scenario planning and shuttle negotiations) and the deliberate enfolding of sub-governmental stakeholders into appropriate roles, such as the CID with official representation on middle basin irrigation issues and the Red Bluff power district and other local riparian farmers in focus groups to determine active interests and concerns. But then where did it all go wrong and how did the Supreme Court lawsuit happen? The most obvious blame lies at the feet of poor modeling: if the original models of the Pecos River Compact had been correct, the contentious litigation between the states in the 1970s and 80s would never have occurred. However, given that the models used were the result of cutting-edge research and that the compact itself (implicitly) allowed for those models to be updated, it is difficult to lay blame strictly at the technical backing of the agreement. The most practical advice that could be offered based on this result is that new models should be treated with caution when forecasting, particularly when their predictions differ from old models such as classic water table balances, as was the case with the first Pecos River Compact models.

Moving beyond technical accuracy, the intentional vagueness of the compact, typically viewed as an important step towards reaching agreement and keeping the conclusions flexible, backfired when brought to the Supreme Court. Forcing the court to rule on the interpretation of multiple articles of the compact (rather than just the case as a whole) was a contributing factor towards drawing out the lawsuit over more than a decade. A suggestion of the Water Diplomacy Framework that was not included may have prevented this situation from ever occurring: the inclusion of a specific means of resolving future conflicts in the agreement. Indeed, the court’s master suggested that one of these be added, but when the court refused to alter the compact and left it to the states, it was too late and hard feelings prevented further improvements to the compact. However, it may be a worthwhile lesson to say that flexible-vagueness should be employed with caution in situations with a less than explicit recourse for settling disputes.

The Pecos River Compact was also undone partially because it was building on an unsteady foundation. The Alamogordo Agreement, though not official law, had shaped the impressions of both states with regards to the water management problem, pitting them as adversaries in a struggle to claim the water of the Pecos. The agreement itself was quickly brought together to secure funding from the federal government with none of the hallmarks of good negotiation, such as Joint Fact Finding. Without mutually acknowledged data, the only arguments that were able to be made between the CID and Red Bluff districts were ideological, forcing the agreement to rest on nothing but a tentative truce not to oppose each other’s construction interests. This lack of data formed part of the motivation for the creation of the PRJI, which would later play a large role in the Pecos River Compact and Tipton’s non-zero sum framing of the problem, but damage was already done. Of course, it is impossible to erase the past when conducting negotiations, but a concerted effort to scrub the lingering assumptions of previous accords would have served New Mexico and Texas well here.

Finally, it should also be acknowledged that luck played a role in how the compact was received. The 1940s were a very wet decade overall, with plenty of water to go around. It has been noted that this was part of the reason for the failure of the original models, but even if the models had been correct it is possible that the very dry 1950s, immediately after the implementation of the new compact, would have resulted in strong negative feelings and possibly lawsuits anyway. Even the best laid plans of water negotiations can go awry due to unforeseen circumstances.