By Michael Jensen and Leah Cantor
New Mexico Environmental Law Center
“Every time we update our models of the Río Grande, the date when we start to see serious disruption in flows get closer” (from an informal conversation with a U.S. Geological Survey scientist engaged in modeling climate change impacts on the Río Grande and some of its tributaries). That time may be closer than we think. Twice in the last five years or so, the Río Grande running through Albuquerque would have been dry (one year for a couple days and one year for about a week) without the San Juan Chama Project water that comes from tributaries of the San Juan River in the Colorado Basin.
According to David Gutzler, a professor in the University of New Mexico’s Earth and Planetary Science Department and an international climate change expert specializing in the impacts in New Mexico and the Southwest, we are clearly seeing the predicted impacts of climate change. New Mexico is warming faster than the overall United States and the global average. Snowpack is more variable, and much more of it evaporates before it can melt and get into streams and rivers. Rainfall is more unpredictable, with more frequent and stronger storm events. Yes, he will say, we are still, barely, within the large range of temperature and precipitation variation characteristic of the arid Southwest over the past 1,500 years, but the trend is clear and relentless, and we will surpass the worst long-term drought extremes very soon.
As the effects of climate change intensify, this will mean both scarcer water resources, more focus on piping, pumping, damming and diverting, and more heightened conflict around who owns and controls the rights to water in our state. Already, attempted water grabs by high-profile private interests threaten future public supply.
New Mexico–Texas Water Case in U.S. Supreme Court
Texas has sued New Mexico over the claim that groundwater pumping in the Elephant Butte Irrigation District has caused depletions from the Río Grande that have robbed Texas of its rightful allocation of water. Earlier this year, the U.S. Supreme Court ruled unanimously that the U.S. government could join the case. The federal government’s arguments are very similar to those Texas is using. Worst-case-scenario outcomes include New Mexico owing Texas over $1 billion, having to provide a large amount of water above required deliveries for years to come, and obligating upstream users, including Albuquerque, to curtail usage or devote some of its water to meeting the state’s obligations. With the Supreme Court’s decision, the case has gone back to the Special Master who is arbitrating the dispute.
Augustin Plains Ranch Water Case
In Catron County, near Datil, an Italian billionaire has spent nearly a decade repeatedly applying for a groundwater permit for his Augustín Plains Ranch. The applications would allow the appropriation of about 17 billion gallons of water per year from the San Augustín Basin for “bulk commercial sale and for municipal uses.” This case has major implications for water management in New Mexico and for the future of rural communities in our state that would likely be exposed to water mining (pumping water faster than it can be recharged) if Augustín Plains Ranch’s application is approved. The first application, which was denied by the State Engineer and a State District Court in 2012, was amended and submitted again in 2014. The State Engineer refused to accept the 2014 reapplication. In 2016, under a new State Engineer, the ranch filed a “corrected” application, which the State Engineer agreed to consider.
The “corrected” version stands virtually unchanged from the earlier versions and should be denied upon the same grounds that led the previous versions to be denied by the State Engineer and courts: The application fails to identify specific beneficial uses, particular places of use and end users of the water to be appropriated. All these elements are required by New Mexico water law. The previous rulings of the State Engineer and the State District Court dismissing the earlier application ought to require the current State Engineer to dismiss the corrected application because it is substantively the same as the earlier application. Moreover, at a hearing held in Catron County on Dec. 13, 2017, the State Water Rights Division said that the Augustín Plains Ranch application was speculative (having no specified user or beneficial use) and should be denied. The final decision rests with the State Engineer. Approval of the permit could make it much easier to privatize New Mexico’s groundwater.
East Mountains Resort Project
Residents of communities in the East Mountains of Albuquerque are protesting a groundwater permit filed by Aquifer Science for the Campbell Ranch. The proposed resort and residential project on N.M. 14 would include about 4,000 homes, two golf courses, retail, office space and recreational facilities. The State Engineer has denied at least three prior applications in the area over the last 15 years, including a much smaller application by the local community center adjacent to the site, because of lack of sufficient water. The water table across the region has been steadily declining, and many domestic wells have run dry and had to be drilled deeper or replaced.
This is the basis for the protest over the Aquifer Science permit for 354 acre-feet per year (and an agreement with the Entranosa water service for an additional 350 acre-feet). Aquifer Science is a wholly owned subsidiary of PICO Holdings, a California-based investment holding company and water development corporation that owns Vidler Water Company (Nevada), which in turn owns Vidler New Mexico. The latter company owns 95 percent of Aquifer Science and has no employees. Campbell Farming Corporation, which owns the Campbell Ranch property and is a 5 percent partner in Aquifer Science, is also in Nevada and has one employee. The lack of any ongoing activity or employees by these companies is highly suspect, demonstrating that the application is merely an attempt by out-of-state corporations to secure New Mexico’s water. The hearing on the permit protest finished on March 19. A decision is not expected anytime soon.
New Mexico Copper Rule Case
In a victory for community residents, the Third Judicial District Court dismissed most of the water rights claimed by the New Mexico Copper Corporation and two water rights sellers. The case is tied to the proposed re-opening of the Copper Flat mine, near Hillsboro, N.M. The court found support for just over 900 acre-feet of the 7,500 acre-feet claimed, which is not sufficient for mining operations. In the Copper Flat water rights case, the court found a long history of failed and half-hearted attempts by a changing set of companies to start copper production at the mine. Despite this, the federal Environmental Impact Statement and state permit processes for the mine are moving ahead. The court’s decision will be appealed, the corporation has applied for a new groundwater permit, and other sources of water are being examined, such as Augustin Plains Ranch. Copper Flat would be the first mine granted a permit under the new “Copper Rule,” written by the industry and passed in 2014.
In March, the New Mexico Supreme Court upheld the statewide Copper Rule in a case that could set precedent for how New Mexico protects water at all industrial sites. Following an IPRA request, New Mexico Environmental Law Center staff attorney Jaimie Park discovered a document labeled “Hit List for Regulation Changes” produced by Ground Water Quality Bureau staff at the New Mexico Environment Department (NMED). In the Hit List, the Copper Rule was cited as a model for how to ease the permitting of polluting facilities and reduce opportunities for public participation. The Copper Rule weakens New Mexico’s Water Quality Act (WQA) by excluding the areas beneath open pit mines—which can cover many square miles—from WQA standards. The Court referred to this as “strategic containment,” acknowledging that mines will “inevitably” pollute groundwater. In essence, the Rule creates groundwater “sacrifice zones” in areas like Grant County that depend entirely on groundwater for their water supply.
In 2012, NMED established an Advisory Committee made up of industry, environmental and technical experts. Their compromise proposal was replaced by NMED Secretary Ryan Flynn with a proposal written by Freeport-McMoRan, the world’s largest publicly owned copper mining company. An IPRA request revealed that the required “Statement of Reasons” accompanying the Rule was also written by Freeport-McMoRan, although NMED passed it off as its own document. The Court rejected this fact as irrelevant.
The Court repeatedly cited language in the Copper Rule as “proof” that the Rule would protect groundwater, as if just saying so would make it so. Typical of the Court’s reasoning is one of its concluding statements:
“We cannot conclude that the Copper Rule violates the WQA because it purportedly permits rather than prevents contamination when the Copper Rule’s plain terms contain an abundance of provisions that afford significant groundwater protections at copper mine facilities designed to prevent pollution.” [emphasis added]
The Court insisted that the language of the Rule itself would “ensure” groundwater protection (outside the massive pit area). For example, because the Rule says that crushing and milling units outside the open pit surface drainage area “shall be designed to contain and manage all materials containing water contaminants,” that was sufficient to dismiss environmental groups’ arguments questioning the Rule’s ability to protect scarce groundwater resources … because they hadn’t proven their claim definitively. Monitoring well networks will capture all pollution migrating from under the exempted open pit pollution because the Rule says they will. Post-mining closure plans will protect groundwater for future uses because the Rule says they will.
New Mexico has taken a long time to recover from the recession. As a result, population growth has been slower than the historical average. However, with a growing economy, population will increase. Urban and agricultural water use has clearly become more efficient, but there are limits to these efforts, as well. Sooner rather than later, water demand will come up against climate change impacts that will strain the limits of rivers and aquifers. Control over clean water for the public welfare rather than corporate profits is a fight we need to win.
Michael Jensen is Communications and Public Education Officer at the New Mexico Environmental Law Center. He worked for Amigos Bravos for almost 10 years. Leah Cantor is a recent college graduate pursuing her interest in environmental justice by volunteering at the Law Center. 505.362.1063, firstname.lastname@example.org, www.nmelc.org