NM Land Commissioner Sues NM State Engineer Over Water Permits

A new water battle is brewing in New Mexico, but this time, it is between elected officials.  New Mexico State Land Commissioner, Aubrey Dunn, filed suit against the New Mexico State Engineer, Tom Blaine. [Read Complaint here.]

The Land Commissioner is charged with jurisdiction over state trust lands to generate support for public schools and other state institutions.  In the Complaint, filed in the First Judicial District Court, the Commissioner asserts that he has “an interest in the appropriation of water on and off of state trust lands because the use of water in connection with activities on state trust lands often is essential to the lands’ highest and best use.”  The State Engineer is vested with authority to manage the state’s water resources, including issuing permits for groundwater wells.

The Commissioner is concerned with the State Engineer’s issuance of groundwater pumping permits.  Specifically, the concern revolves around permits issued pursuant to NMSA Section 72-12-1.3.  Section 72-12-1.3 provides that if a person seeks to use groundwater in an amount of less than three acre-feet for a period of time less than one year for prospecting, mining, or construction of public works, highways, and roads or drilling operations designed to discover or develop the natural mineral resources in the state, a temporary permit may be issued by the State Engineer.  A separate application must be filed for each proposed use.   If the request will not permanently impair any existing water rights of others, the permit must be granted.  If it will permanently impair such rights,  a hearing must be held.  [Read statute here.]

The Land Commissioner seeks an order from the Court requiring the State Engineer to stop issuing multiple groundwater permits to a single applicant for a single purpose in excess of the statutorily-allowed three acre feet per year.  The Land Commissioner investigated and claims that there are a number of instances in which the OSE issued several of these temporary use permits on the same day, to the same applicant, for groundwater diversion, for a single purpose (usually to pump water to use in fracking for oil and gas operations.)

For example, the Commissioner claims that from April to August 2017, the OSE issued twenty temporary use permits to two different applicants for water to be used in a gravel quarry near Carlsbad.  Because of the multiple permits, this allowed use of sixty-three acre feet of water by the applicants.  In another example included in the Complaint, Dunn points to three permit applications filed by Chisolm Energy in 2017, seeking to use a livestock watering well for fracking.  All three permits sought water for the same purpose, but were labeled as “phase 1,” “phase 2,” and “phase 3.”  The OSE approved each application, allowing Chisholm to withdraw 9 acre-feet total from the same well for the same purpose.

It is this action, Commissioner Dunn argues, that violates New Mexico law by essentially ignoring the three acre-feet limitation in Section 72-12-1.3.  “In giving the State Engineer authority to issue temporary permits for the use of  up to three acre-feet of water per year, the Legislature did not intend to give the State Engineer authority to issue duplicate or triplicate permits to the same applicant to allow the use of greater than three acre-feet for the same use.”

The State Engineer has not yet filed his Response to the lawsuit.

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