Current work in wildlife, rivers, public lands, and climate
WildEarth Guardians wins legal challenge against New Mexico State Engineer
Daniel Timmons, Wild Rivers Program Director for WildEarth Guardians, celebrated the legal victory: “For more than 90 years, the State Engineer has allowed the single largest water user in the Middle Rio Grande Valley to flout the law, rubber-stamping extensions and giving the District a blank check to drain the Rio Grande without accountability. We are pleased that a judge has finally recognized that water in New Mexico is too precious for the State Engineer to continue to play favorites.”
Under the New Mexico Constitution, water belongs to the public and may only be appropriated for beneficial use in accordance with state law, which sets out a three-part process for obtaining a water right. First, an applicant applies to the State Engineer for a permit to appropriate water. Second, after obtaining the permit, the permittee may begin construction and diversion of water under the permit terms, including specific deadlines for completion of construction and use of water. Third, after water is used under the permit terms, the permit holder demonstrates actual use of the water to the State Engineer through the process known as “proof of beneficial use.”
Only after proof of beneficial use is demonstrated may the State Engineer grant a license, or water right, to the water user. Because the New Mexico Constitution defines beneficial use as “the basis, the measure and the limit of the right to use water,” proof of beneficial use is needed for the State Engineer to properly define the scope of any water right.
The District started that three-part process in the early 1930’s, obtaining licenses from the State Engineer to construct El Vado dam and multiple diversion dams on the Rio Grande and to appropriate water needed for irrigation on District lands in the Middle Rio Grande Valley. Under the license terms, proof of beneficial use was to be demonstrated by 1935. Despite finishing construction and putting water to use for irrigation by that initial 1935 deadline, the District never provided the State Engineer with the proof of beneficial use needed to perfect and quantify District water rights. Instead, for more than 90 years, the State Engineer granted a series of one- and two-year extensions (including decades of after-the-fact, back-dated extensions) without ever requiring the District to fulfill its legal obligation to provide proof of beneficial use.
This legal case began when WildEarth Guardians brought an administrative appeal to the State Engineer’s most-recent extension decision, issued in January 2019, giving the District another two years to demonstrate proof of beneficial use. The State Engineer initially dismissed WildEarth Guardians’ administrative challenge, and WildEarth Guardians appealed that dismissal to district court. In a brief opinion, the district court found that the State Engineer lacked support for its dismissal of WildEarth Guardians’ challenge, noting that the State Engineer’s extension decision “was granted without any explanation of why the extension was in the interest of development of the state or how it was in the public interest.”
“The State Engineer’s failure to require the District to prove up its water rights for more than 90 years undermines the basic integrity of New Mexico’s water rights system, which depends on a proper accounting of the relative rights of different water users,” said Timmons. “In a time of climate change and declining stream flows, every drop of water matters. As a matter of equity, transparency, and accountability, it is time for the District to play by the same rules as everyone else and demonstrate to the State Engineer – and the public – how much of the precious Rio Grande it is using.”
WildEarth Guardians is represented in this matter by its Legal Director, Samantha Ruscavage-Barz.
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