:    .




                             NEY      GENERAL
                              EXAS


                         December 5, 1969


Hon. Dorsey B, Hardeman
Executive Director
Texas Water Rights Commission
Sam Houston State Office Bulldlng
Austin, Texas 78711
                              Opinion No, M- 535
                              Re:    Construction of Article
                                     7466f,V.C,S., Pecos River
                                     Compact between New Mexico
Dear Senator Hardeman:               and Texas.
    Your letter requesting our opinion reads as follows:
            Article 7466f, Vernon's Civil Statutes,
          details the terms of the Pecos River Compact
          between Texas and New Mexico. ,The Pecos
          River Compact Commissioner for Texas, Mr. R.
          B. McGowen, Jr. has requested the Water
          Rights Comm%ssion to make the necessary stud-
          ies to determine the actual annual deliveries
          of water In the Pecos River to Texas by New
          Mexico since ratification of the Compact in
          1948 and a comparison of actual annual de-
          liveries with those specified in the terms
          of the Compact.
            A number of opinions and Interpretations on
          the Compact are needed prior to commencing
          the studies so that we may know what Is meant
          by some of the terminology, how certain app-
          lications are to be made and the acceptability
          of some of the data.
            At the time of ratification of the Compact
          certain engineering studies and data were
          adopted and incorporated by reference into
          the Compact. Article VI of the Compact con-
          tains the principles which govern in regard
          to the apportionment made in Article III and




                         -2546-
                                                         .   . .




Hon. Dorsey B. Hardernan,page 2 (M- 535)


          states that the inflow-outflow method,
          as described In the Report of the Engi-
          neering Advfsory Committee, shall be
          used In the accounting of deliveries
          to state line. The Compact further
          adopts the 1947 conditions of the Pecos
          River Basin as the basis for making ap-
          plication of the Inflow-outflow manual.
           After the Compact was ratified and the
         Pecos River Commission began its admin-
         istrative findings of facts, there arose
         some question as to whether or not the
         data as contained in the Report of the
         Engineering Advisory Committee did In
         fact reflect true 1947 conditions. As
         a result the Pecos River Commission au-
         thorized a review of the basic data and
         at its Twelfth Annual Meeting adopted the
         Report on Review of Basic Data to Engl-
         neeri   Advisory Committee, dated October
         18, 19
              2 0, with certain appendixes thereto.
         This document set forth a 1947 condition
         materially different from that presented
         in the Report of the Engineering Advisory
         Committee adopted in the original Compact
         and ratified by legislative action.
            The question of first importance then is:
             "Did the Pecos River Commission in
           adopting the Report on Review of Basic
           Data to Engineering-Advisory Committee,
           dated October 18, 1960, act within Its
           prescribed powers?"
            A number of other questions pertaining tom
          interpretations of the Compact are attached
          hereto.
     Your specific first question is: Did the Pecos River
Commission, in adopting the Report on a Review of Basic Data
to Engineering Advisory Committee, dated October 18, 1960, act
within Its prescribed powers?
     The answer to this question is found In the Interpretation
of the Pecos River Compact found and contained In Senate Docu-




                        -2547-
.    .




Hon. Dorsey B. Hardeman, page 3 (M- 535)


ment 109. Prior to the adoption of this Compact, the engi-
neers, :attorneysand commissioners met on several occasions
and discussed each proposed provision in detail. Records
show one meeting in Austin, Texas on November 8-13, 1948
(p. 73-103, S.D. 109; and the final adopting meeting on De-
cember 3, 1948 in Santa Fe, New Mexico (p. 105-131, S.D.
109). One of the architects who construed and explained the
provisions of the Compact was the Engineer Advisor to the Fed-
eral Representative, Mr, Royce J. Tipton, then of Denver, Colo-
rado. He gave interpretation to each of the provisions in de-
tail and those Interpretations were adopted by the Commlssion-
ers in adopting each provision of the Cornact; they are found
in Senate Document 109, (Public Law 91, E 1st Congress, Chap-
ter 184, 1st Session, H.R. 3334).
     This Document has also been copied and analyzed in "The
Pecos River Commission-New Mexico and Texas, A Report of a
Decade of Progress 1g50-1g60”,compiled by Robert T. Lindle
and Dee Linford. Page references in this memo hereafter re-
fer to the Senate Document 109, and those in parenthesis re-
fer to pages found in said volume, "A Report of a Decade of
Progress."
     Article II of the Pecos River Compact, paragraph (f) pro-
vides:
            "(f) The term "Report of the Engl-
          neering Advisory Committee" means that
          certain report of the Engineering Ad-
          visory Committee dated January, 1948,
          and all appendices thereto; including,
          basic data, processes, and analyses uti-
          lized 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."
     Paragraph (g) provides:
            "(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.




                         -2548-
Hon. Dorsey B. Hardeman, page 4 (M- 535)


         In determining any question of fact here-
         after arlsing as to such situation, ref-
         erence shall be made to, and decisions
         shall be based on, such report."
     Paragraph (f) and (g) under Article II of the Compact
are explained by Mr. Tipton as follows:
           "...(f) I believe has been defined. I
         defined It in my explanation of the mat-
         ters that were submitted to this meeting
         from engineering advisory committee, and
         suggested that the three volumes I de-
         scribed and all work sheets be termed "Re-
         port of the engineering~~advisorycommlttee."
           "I don't believe much explanation is
         needed of item "(g)." I will give a short
         one in order that there will not be con-
         fusion. "1947 conditions" related to a
         condition on the stream and does not re-
         late to the water supply that occurred In
         the year 1947. There may be some confusion
         about that. There were certain conditions
         that existed on the river, such as the di-
         version requirements of the Carlsbad proj-
         ect, which the engineering advisory com-
         mittee assumed; the salt cedar consumption;
         the reservoir capacities that existed in
         1947; the operation of the Fort Sumner proj-
         ect up to 6,500 acres; and the operation of
         all other projects on the stream as they ac-
         tually existed in 1947. It must be under-
         stood that the term "1947 condition" relates
         to the condition described in the report and
         does not relate to the water supply that oc-
         curred In the year 1947..." P. 113-114 S.D.
         109 (p. 148-149, Report).
     Mr. Tipton, at page 117 S.D. 109 (p. 153 Report), further
explains sub-paragraph (a) of Article III, which has a very
Important bearing on the above questions:
            "In my opinion, it would have been very
          unwise for the commission to have set out
          in this compact what might be called a




                        -2549-
Hon. Dorsey B. Hardeman, Page 5 (M- 535)



         schedule. It would have been unwise for
         several reasons. The commission may de-
         vise, as time goes on, a better means to
         determine this than by the Inflow-outflow
         method. It may perfect more nearly the
         curves which appear In the englneering-
         advisory committee report. We are having
         difficulty now In regard to one compact
         which involves three states, one of them
         being the State of Texas, where we are
         trying to change the schedule without chang-
         ing rights and obligations. It appears that
         we will have to go to the legislature to
         change the schedule. The way the Pecos com-
         pact Is written, the commission has full au-
         thority to change the method or to perfect
         the technique, so long as what is done by
         the commission is something directed at the
         determination of the obligation under (al."
         Tl3nphasisours.)
     Then at page 125, S.D. 109 (p. 163 Report), Tipton refers
to findings of fact in explaining Article VI, which Article
ties to Article III. He makes it clear that the Inflow-outflow
method was based on then available facts that determined the
"1947 conditions" as found by the Engineering Advisory Commlt-
tee. Paragraphs (f) and (g) of Article II expressly define the
term "1947 condition" therefore, any change in the definition
of "1947 condition" should come by formal amendment of the Com-
pact. However written Into the Compact are provisions to than e
means, methods or devices for measuring water and paragraph (a7
of Article VI makes a further signed provision:
            "(a) The Report of the gngineering Ad-
          visory Committee, supplemented by additional
          data hereafter accumulated, shall be used
          by the Commission In making administrative
          determinations."
     In adopting the Articles, the explanations were specifi-
cally adopted along with each Article by vote of the Commis-
sioners. Therefore, it Is the opinion of this office that the
Pecos River Commission has the authority to review the basic
data and to accept an Engineering Advisory Committee recalcu-
lation of that data. Such was clearly contemplated within the
adoption of the Compact.




                        -2550-
Hon. Dorsey B. Hardernan,Page 6 (M- 535)


     The terms "compact" and "contract" are synonymous. 12
C.J. 217, Compact Note 73a; 17 C.J.S. 539, Contracts, Sec. 1
(1); and cases therein cited. A reasonable construction of
an ambiguous contract by the parties thereto, although not
conclusive, wlll be considered and accorded great weight, and
usually will be adopted by the court. 17 C.J.S, 228, Contracts,
Sec. 325 (1); Floyd V. Ring Const. Corp   66 F.S. 436, 438,
affirmed in.165 F 2d 125    d    t den $6 L Ed 1763 Texas
Courts follow the-same &l?    E&haw   ;. Texas'Natural Re-
sources Foundation, 147 Tex: 43b, 21b S.W.2d 5bb (1949).
     However, it must be pointed out that the October 18,
1960 Engineering Advisory Committee Report on review of basic
data submitted to the Pecos River Commission was not a com-
plete report. As late as January 26, 1967, the Esneering
Advisory Committee made a status report of the inflow-outflow
subcommittees to the Pecos River Commission; it Is found on
page 2 thereof:
           "The remaining work to be accomplished
         under the Commission's July 30, 1957 dl-
         rective Is: (1) Restudy under 1947 Con-
         ditions the inflow-outflow relationship
         for the reach of the Pecos River above
         Alsmogordo Dam and (2) Review the Janu-
         ary 1957 draft of the Inflow-outflow man-
         ual and make recommendations for addition-
         al revisions which may be disclosed by its
         work."
     (The July 30, 1957 directive was the one which appears
to have authorized the restudy). It was at this July 30,
1957, 22nd (8th Annual) meeting of the Pecos River Commission
at Santa Fe, New Mexico (reset In January to July, 1957) that
the Commission adopted anmorized      the following:
            11...
                 3. A special subcommittee be created
          to restudy under 1947 conditions the lnflow-
          outflow relationships for the reach of river
          above Alamogordo Dam and the reach of river
          from Alsmogordo Dam to the New Mexico-Texas
          State line. The purpose of the restudy is to
          determine whether the relationship depicted
          by the curves appearing in pages 153 and 154
          of Senate Document 109, 81st Congress, 1st
          Session, should be modified.




                         -2551-
Hon. Dorsey B. Hardeman, Page 7 (M-5351


            4. The last draft of the Inflow-Outflow
          Manual be reviewed by the subcommittee
          recommended under item 3 and, if necessary,
          the subcommittee make recommendations for
          additional revisions which may be disclosed
          necessary by its work.*
     The Pecos River Compact minutes contain the above memo
dated January 26, 1967, from the Engineering Advisory Commit-
tee,.
     Again, as recently as January 23, 1969, a memorandum to
the Pecos River Commission from the Engineering Advisory Com-
mittee, Subject: Progress Report, sets out at page 3 thereof:

            "The remaining work to be accomplished
          under the Commission's July 30, 1957 di-
          rective is: (1) Restudy under 1947 Con-
          ditions the Inflow-outflow relationship
          for the reach of the Pecos River above
          Alsmogordo Dam and (2) Prepare inflow-out-
          flow manual for Alamogordo Dam to stateline
          reach for Commission consideration."
     As far as we have been able to discover from the files
submitted to us, this study has never been completed and,
therefore, the report,purportedly adopted by the 12th Annual
Meeting on January 19-31, at Roswell, New Mexico, was an in-
complete report. While the Commission had authority to accept
and adopt the 1960 Report, it accepted and adopted an incom-
plete restudy. However, this does not preclude a conclusion
of a recalculation or restudy; and it is our opinion that the
Commission acted within Its prescribed powers In adopting the
Report on Review of Basic Data to Engineering Advisory Com-
mission, dated October 1.8,1960.
     Your request for an opinion also asks the following ad-
ditional eleven questions, which we will answer immediately
following each question:
     1.   Q.    "Compact Article II(e): (1) Does
               the term "deDlete bv man's aCtiVi-
               ties" apply to diminishing of the
               stream flow in the Pecos River by
               pumping from underground waters
               which would accrue to the flow in
               the open channel of the Pecos if




                            -2552-
Hon. Dorsey B. Hardeman, page 8 (M- 535)


               such waters were not removed by
               pumping?"
     The answer is,Yes. Questions concerning the meaning of
terms and provisions used In a Compact may be often resolved
by reference to its legislative history. The Law and Use of
Interstate Compacts, pp. l-2, Zimmerman and Wendell (1961).
     In the Pecos River Compact Commission Meeting, November
8-13, 1948, at Austin, Texas, Royce J. Tipton, at page 83,
Senate Document 109, gave an explanation of (e) Article II of
the Compact. In the meeting of the Pecos River Compact Commis-
sion on December 3, 1948, at Santa Fe, New Mexico, where the
adopting took place, at pages 112-113, Senate Documen;nl;ze(p.
148 Report), further explanation is made by Tipton.
first paragraph on page 113, he concludes:
             ...This term, therefore, goes to the
          effect upon the stream below a given point,
          as the result of man's activities in using
          waters of the Pecos River above such a
          point."
     A month earlier, page 83, S.D;,109, he had specifically
pointed out that excessive pumping was going on in the Roswell-
Artesia region:
            "In some parts of the shallow ground-
          water area in the Roswelldrtesia region
          the pumping is exceeding the safe yield.
          If the pumping continues at its present
          rate, the entire base flow reaching the
          river from that area can be expected to
          be essentially depleted."


     2.   Q.    "Compact Article II(e): Is the loss of
               water throumh non-beneficial consumctive
               use by salt-cedar over and above the "1947
               Condition" to be borne by Texas, New Mex-
               ico or by both on a prorated basis?"
     Answer: We are unable to answer question 2 because this
pointis      specifically covered by the provisions of the Com-
pact. In Subsection (e) of Article II the following is provld-
ed:




                            -2553-
Hon. Dorsey B. Hardeman, page 9 (PI-535-


               II
             ...For the purposesof 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."
     Article IV contemplates cooperative work between the two
states in Subsection (a):
            "New Mexico and Texas shall cooperate
          to support legislation for the authori-
          zation and construction of projects to
          eliminate non-beneficial consumption of
          water."


     3.   Q.    "Compact Article II(g): Does the "1947
               Condition" incorporate a specific measure
               of the duty of water per acre Irrigated?"
     Answer:        No.
     Page 113, Senate Document 109 (p.,148-149 Report), Mr.
Royce J. Tipton addresses himself to this provisio:
            "I don't believe much explanation Is
          needed of item "(g)". I will give a
          short one In order that there shall not
          be confusion. "1947 condition" relates
          to a condition on the stream and does not
          relate to the water supply that occurred
          In the year 1947. There may be some con-
          fusion about that. There were certain con-
          ditions that existed on the river, such as
          the diversion requirements of the Carlsbad
          project, which the engineering advisory
          committee assumed; ,thesalt cedar consump-
          tion; the reservoir capacities that existed
          in 1947; the operation of the Fort Sumner
          project up to 6,500 acres; and the opera-
          tion of all other projects on the stream
          as they actually existed in 1947. It must
          be understood that the term "1947 condi-
          tion" relates to the condition described
          in the report and does not relate to the




                            -2554-
Hon. Dorsey B. Hardeman, page 10 (M- 535)


          water supply that occurred in the year
           1947."
     References to "the duty of water" Is not found In elther
the report on engineering computations or in the explanation.
The nearest to the subject Is an exchange between Tlpton and
Miller found at page 91 of S.D. 109 (See Answer to Q. 11).


     4.   Q.    "Compact Article II(h): Does the term
               "water salvaged" exclude from apportion-
               ment those waters regained for beneficial
               consumptive use from eradication of salt
               cedar which has encroached on the Pecos
               River Basin subsequent to the "1947 con-
               dition"?
     Subparagraph (h) reads:
            "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."
     Article III, Subsection (c) provides that salvaged water
for beneficial consumptive use Is apportioned forty-three per-
cent to Texas and fifty-seven percent to New Mexico, and Sec-
tion (d) In the ssme Article provides:
            "Except as to water salvaged, appor-
          tioned In paragraph (c) of this article,
          the beneficial consmptlve use of water
          which shall be non-beneficially consumed,
          and which is recovered, is hereby appor-
          tioned to New Mexico but not to have the
          effect of diminishing the quantity of water
          available to Texas under the 1947 condition."
     The next paragraph (e) provides:
            "Any water salvaged ln.Texas 1s hereby
          apportioned to Texas."




                            -2555-
Hon. Dorsey B. Hardeman, page 11 (M-535)


     Then Royce Tipton addressed himself to this privis$on
with this explanation at page 114, Senate Document 109 (p.
149 Report), as follows:

            "Subparagraph (h) defines "water sal-
          vaged" under the "1947 condition'!that was
          being consumed by natural processes such
          as transpiration by salt cedars and like
          growth, and the evaporation of water from
          the river channels and tributaries. A
          certain amount of water which Is nonbene-
          ficlally consumed can be recovered by cer-
          tain means. An example of such means is
          the project which has been proposed to by-
          pass the salt cedars at the head of Lake Mc-
          Mlllan by a canal in order to reduce the a-
          mount of water available to those cedars to
          transpire. That project will bring some
          water back to the river that Is now non-
          beneficially consumed. Such recovered water
          is what is meant by "water salvaged." The
          term, however, relates only to the quantity
          of water that was being nonbeneficailly con-
          sumed under the "1947 conditions." Any water
          salvaged up to the quantity of water that was
          being nonbeneficially consumed under the "1947
          condition" comes under the definition of "wa-
          ter salvaged,"
     The answer, therefore, is Yes.   (See also Q. 7)


     5. Q.    "Compact Article II(i): Can a determ-
             ination of the specific measure of "un-
             appropriated flood waters" be made appli-
             cable to the compact and accounted for on
             a periodic basis?"
     Mr. Tlpton gives this explanation of unappropriated flood
waters at page 114, S.D. 109 (p. 149 Report):
            "I believe that the term "Unappro-
          priated floodwaters" which a;$?Earn;
          subparagraph (I) Is plain.
          just what it says, viz: that any flood-
          water which is not now used in the,basin
          above Glrvin, Tex., is unappropriated
          floodwater, or water that would spill from


                          -2556-
Hon. Dorsey B. Hardeman, page 12 (M- 535)

         Red Bluff Dam and would pass all the
         present diversion and storage facili-
         lties In Texas and flow unused past
         Girvin, Tex. That Is what is meant by
         unappropriated floodwater."
    Article III(f) provides:
           "Beneficial   consumptive use of unappro-
         priated flood   waters is hereby apportioned
         fifty percent   (50$) to Texas and fifty per-
         cent (50$) to   New Mexico.."
     Provided it Is feasible from a water engineering stand-
point, the answer Is, Yes.


     6. Q.    "Compact Article III(c): What is the basis
             for th diversion of salvaged water forty-
             three Eercent (43%) to Texas and fifty-seven
             percent (57s) to New Mexico."
     On page 99 of the Senate Document 109, a full discussion is
recorded. During the bargaining stages of the Compact, New Mex-
l,rTzzeeted   apportion of the water thirty-eight percent (38%)
          sixty-two percent (62%) to New Mexico. Texas suggest-
ed fortyiflve percent (4%) to Texas and fifty-five percent (55%)
to New Mexico. After considerable discussion Royce Tipton, page
100, S,D. 109, stated:
           'My suggestion, Mr, Chairman, is that the
         States split the difference between those
         two conditions which may have some signlfl-
         cance to the two States and make the alloca-
         tion of salvaged water on that basis. I think
         that will come out just about 43 percent to the
         State of Texas and 57 percent to the State of
         New Mexico.  I'm merely making that as a sug-
         gestion. It doesn't depart very much from the
         percentages which were used and there Isn't too
         much water involved. It splits the difference
         between the vrincinle that might be applied on
         the one side-of the line and the principle that
         might be applied on the other side of the line."
     After a brief recess and conferences by the Texas and New
Mexico states, Mr. Miller for Texas stated:
            "Mr. Chairman, if it would be acceptable to
          New Mexico, Texas Is willing to accept Mr. Tlp-
          ton's suggestion of the 43 and 57 percent basis."


                         -2557-
     .




Hon. Dorsey B. Hardeman, page 13 (M-535)


     That was the final deliberation which set the stage to
hold the meeting in Santa Fe on December 3, 1948, at which
the Compact was accepted.


     7.   Q.   "Compact Article III(d): What does this mean?"
     Article III, Section (d) provides:
             "Except as to water salvaged, appor-
           tioned in paragraph (c) of this article,
           the beneficial consumptive use of water
           which shall be non-beneficially consumed,
           and which is recovered, is hereby appor-
           tioned to New Mexico but not to have the
           effect of diminishing the quantity of
           water available to Texas under the 1947
           condition."
     On page 118, S.D. 109 (p. 155 Report), Mr. Tipton inter-
prets thus:
             "As I interpret (d), it has to do with
           two classes of water. The first class Is
           water recovered by projects other than
           those mentioned in (c). The second class
           Is the water recovered in excess of that
           which was being nonbeneficially consumed
           under the "1947 condition." Those two
           classes of water are apportioned to New
           Mexico with the provisio that in making
           such an apportionment the amount of water
           apportioned to Texas under (a) shall not
           be diminished. In other words the "1947
           condition" shall be maintained except in-
           sofar as it might be changed by nature
           herself.
             "Subparagraph (e) apportions all water
           salvaged In Texas to Texas. That is
           self-explanatory.
             "Subparagraph (f) is self-explanatory.
           It apportions 50 percent of the unappro-
           priated floodwaters to Texas and 50 per-
           cent to New Mexico."
     This question ties Into Question 4 above and would appear
to give New Mexico an incentive to keep the chaMe1 Of the
Pecos clear of phreatophytes.



                           -2558-
Hon. Dorsey B. Hardeman, page 14 (M- 535)


     8. Q.      "Compact Article IV(d): What Is the
               ef?ect of this?"
     Article IV(d) provides:
            "Neither New Mexico nor Texas will
          oppose the construction of any facll-
          ities permitted by this compact, and
          New Mexico and Texas will cooperate
          to obtain the construction of facil-
          ities that will be of joint benefit
          to the two states,"
     At page 120, S.D. 109 (p. 157 Report), Royce Tlpton says
that paragraph (d) is self-explanatory and we doubt that it
could be made clearer, absent speclflc situations.


     9.   Q.    "Compact Article VI(b): Can the Pecos
               River Commission change the period of
               accounting to a yearly basis?"
     P. 124, S.D. 109 (p. 163 Report), Mr. Tlpton states:
            "Subparagraph (b) of Article VI states
          that unless otherwise determined by the
          Commlsslon, depletion by man's actlvl-
          itles, State line flows, quantities of
          water salvaged, and quantities of un-
          appropriated floodwater shall be deter-
          mined on the basis of 3-year periods
          reckoned In continuing progressive series
          beginning with the first day of Jaunary
          next succeeding the ratification of the
          compact."
     The answer is clearly, Yes.
     Royce J. Tlpton, page 124, Senate Document 109 (&.163
Report), continues to explain:
             "Then subparagraph (c) of Artlole VI
           states that the inflow-outflow method
           shall be used unless and until a more
           feasible method Is devlsed....As time




                           -2559-
     .




Hon. Dorsey B, Hardeman, page 15 (M- 535)


          goes on, if there were a progressive
          change in that correlation from the one
          shown on the curves in the engineering
          advisory committee report, showing that
          there was less water being delivered at
          the State line that would indicate a
          depletion. Then the commission would
          have to determine the extent to which
          that depletion was due to man's activ-
          ities In New Mexico and the extent to
          which it might be caused by nature.
          That is a finding of fact. If caused
          by man's activities, the commission
          would notify the appropriate officials
          of New Mexico."
     Mr. Tipton makes several references to future findings of
fact. Subparagraphs (b) and (c) clearly set out that unless
otherwise determined by the Commission this be done. By in-
ference, therefore, the Commission could than e the period of
accounting and the period of determination. 7Page 124-125 of
Senate Document 109 (p. 163-164 Report).


    10.   Q.    "Compact Article VI(c): Can this be
               rewritten to substitute a firm schedule
               of deliveries such as In the Rio Grande
               Compact?"
     Subparagraph (c) provides the answer:
           "(c) Unless and until a more feasible
          method is devised and adopted by the Com-
          mission the inflow-outflow method, as de-
          scribed 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 wa-
               ters of the Pecos River In New Mexico.
                 (Ii) Measure at or near the Avalon Dam
               I&New Mexico the quantities of water sal-
               vaged.




                            -2560-
Hon. Dorsey B. Hardeman, page 16 (M- 535)


              (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 Art-
            icle.
             (Iv) Measure the quantities of un-
           appropriated 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."
     The answer is, Yes.
     At page 117, of S.D. 109 (p- 153 Report), Royce Tlpton
explains.
           "In my opinion it would have been very
         unwise for the commission to have set out
         in this compact what might be called a
         schedule."
     He then goes on to state:
           "It would have been unwise for several
         reasons. The commission may devise, as
         time goes on, a better means to determine
         this than by the inflow-outflow method.
         It may perfect more nearly the curves
         which appear in the engineering advisory
         committee report ...The way the Pecos com-
         pact is written, the commission has full
         authority to change the method, or to per-
         fect the technique, so long as what is done
         by the commission Is something directed at
         the determination of the obligation under
         (a)."
     The two States put the provisos In Article VI in Subsec-
tion (b) as well as (c) that:
     .




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Hon. Dorsey B. Hardeman, page 17 (M-535)


                "Unless otherwise determined by the
              commission...unless and until a more
              feasible method is devised and adopted
              by the Commission..."
     It is evident that this part of,the Compact can be re-
written to substitute a firm schedule of delivery similar to
such as is found In the Rio Grande Compact.


        11.   Q.    "Compact Article VI(f): Can this be
                   deleted by Pecos River Commission Ac-
                   tion?"
        Subparagraph (f) provides:
                "Beneficial use shall be the basis, the
              measure, and the limit of the right to use
              water."
     This provision is termed "shall", Is a basic partT;; 2
Compact, and it would take legislation to change It.
swer Is, No.
     On Page 91 of Senate Document 109, Commissioner Charles
H. Miller for Texas posed the question:
                 "Still, in working up a compact be
               tween the two states we would have to
               take into consideration the beneficial
               use of the water?"
               Mr. Tipton:
                   "That is correct."
               Mr. Miller:
                 "And even if there was 295,000 acre-feet
               came across the State line, we would have to
               figure how much loss and how much benefit."
               Mr. Tipton:
                   "That's correct, sir."




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Hon. Dorsey B, Hardeman, Page 18, (M- 535)


         Mr. Miller:

           "That Texas would derive from that in-
         flow of water, Isn't that right?"
         Mr. Tlpton:
            "That's correct."
         Mr, Miller:
            "Likewise, New Mexico would have to do
          the same thing."
         Mr. Tipton:
            "That's correct; yes: sir."
     He proceeded further:
           "That's right, and it is very probable that
         from the engineering advisory committee's con-
         clusions as to safe yield Texas, with her knowl-
         edge of the Irrigation practices below Red Bluff,
         can determine the area that can be irrigated by
         the water supply under each condltlon, Texas'
         knowledge going not only to the question of chan-
         nel losses but also the question of the extent
         of reuse that can be made within the Texas area."
     (This was actually the nearest that they came to talking
about duty of water).
     Several other references to "beneficial use" are also
found In the adopting and explaining discussions.

                       SUMMARY
                       -------

            The Pecos River Commission had the au-
          thority to authorize and adopt the Report
          on Review of Basic Data to Engineering
          Advisory Commission dated October 18, 1960;




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. .   .




Hon. Dorsey B. Hardeman, Page 19, (M- 535)


          however, it was incomplete and should
          be concluded.
            Questions concerning the meaning of
          terms and provisions used in the Com-
          pact may be resolved by reference to
          legislative history In Senate Document
          109.




                                             al of Texas

Prepared by Vince Taylor
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Houghton Brownlee
Alfred Walker
John Banks
Roland Allen
Roger Tyler
MEADE F. GRIFFIN
Staff Legal Assistant
NODA WRITE
First Assistant




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