Yesterday, I reported on a very confusing water battle occurring in southern New Mexico. And because it’s tricky to work everything into a one-minute broadcast, I wanted to expand on this portion of the story:
In an email, public information officers stated the federal government is pursuing three other legal “theories” that could undermine New Mexico’s control of its groundwater.
Those include the cleanup of a mine in northern New Mexico, endangered species management in the Middle Rio Grande, and US claims related to tribal water rights in the state.
Here’s an excerpt of the email I received from the Julie Maas at the Office of the State Engineers that details those issues:
1. In the Molycorp Superfund case the State of New Mexico reached a settlement on damages for pollution to the State’s groundwater, thereafter the Federal Trustees representing the Department of Agriculture and Department of Interior claimed (and continue to claim) that the US is entitled to a portion of the damages New Mexico negotiated on its own behalf because some of the polluted groundwater is under federal lands. Since the US has no groundwater rights, the only basis for its claim is that it owns the groundwater under federal lands.
2. Second, in the Middle Rio Grande (MRG), below Cochiti Dam and above of the Isleta diversion, the US is preparing a new Biological Opinion for the endangered Silvery Minnow. The federal agencies appear to be focused on effects of groundwater diversions on the surface water supply available to maintain the Minnow’s habitat. The implication is that one or more of the US agencies will use the ESA to expand jurisdiction to regulate groundwater which is otherwise beyond US jurisdiction.
3. Third, US claims that tribe and pueblo water rights include the right to groundwater within the reservation or pueblo boundaries. The point is not whether groundwater should be a source of supply for Indian water rights, but the highlight that States primacy over groundwater is slowly eroding as US policies evolve.
4. The US claims, in the lower Rio Grande Adjudication, that the Rio Grande Project has a right to groundwater as a source of supply for the Project. The US claims that because, in its opinion, the Project requires groundwater to properly function and fulfill its purposes, federal law preempts state law requirements for the appropriation of groundwater. Since the US has no legal basis for claiming a federal reserved groundwater right, the US seeks to establish a “federal non-reserved water right” to circumvent New Mexico’s statutes governing appropriation of water.
I suspect these issues will continue to heat up over the next few months–because after all, there are differences between “owning” groundwater and protecting it.