U.S. Water News Online
SANTA FE -- A proposal that lays the foundation for doling out scarce water supplies in dry times is being criticized by ranchers, environmentalists, cities, water associations and industry representatives.
The state engineer's office has proposed rules allowing it to administer water basins according to priorities, making sure senior users &emdash; those holding water rights the longest &emdash; get their water while junior users are cut off.
"With the worsening drought, we feel we have no other option,'' said D.L. Sanders, chief attorney for the engineer's office.
A hearing in Santa Fe drew about 80 people, mostly opponents. They said the proposal gives the state engineer too much power, is vague and confusing and violates the state constitution and individuals' due process rights.
The rules would allow the state engineer to determine water rights based on "the best available evidence'' when a court has not adjudicated ownership. Critics said that power should remain in the courts.
The rules also would allow for "expedited marketing and leasing'' to move water from one use to another with a minimal administrative process and for "replacement plans'' in which junior water rights holders can obtain and lease senior rights and keep using water. Such a lease would not be subject to existing provisions for public hearings and protests of permanent water rights transfers.
Protests of such changes are allowed only after the change is approved, and the person filing the protest must prove the approval was arbitrary and capricious, according to the proposed rules.
Jay Stein, an attorney for Albuquerque, Alamogordo, Espanola, Las Cruces and Gallup, said the rules raise "serious due process questions.''
He said provisions should be added for water users to make their case to the state engineer before decisions are made. He also said an appeal process is needed.
Acequia leaders said the rules would make it easier for urban areas to get water from traditional, rural water users.
"We are the most vulnerable to pressures to move water,'' said Paula Garcia, director of the New Mexico Acequia Association.
"I feel the acequias will end up with no place at the table,'' said Philip Don Cantu, a Mora county rancher and acequia leader.
Zia Pueblo Gov. Peter Pino criticized the state engineer for not consulting tribal leaders. He said the proposals made no mention of American Indians, and he wondered whether the state is dealing with Indians, who have the oldest water rights, some other way.
"I hope that the process considers all of us,'' he said. "Just because we're not vocal doesn't mean that we're not interested in surviving in the same place where we've been for 800 years.''
While Zia holds senior rights, it has agreed to share water with non-Indians because the pueblo must live with its neighbors, Pino said.
Pino also said the state should respect the ability of local people to work things out.
Sunny Nixon, lawyer for an electrical cooperative, Tri-State Generation and Transmission, contended the proposed regulations are unconstitutional "and will lead to chaos in the regulation of water in our state.''
Both the state and federal constitutions say the government can't deprive citizens of property without a hearing, but the proposals would vest that authority in state-appointed water masters, she said.
Sanders defended the plan but said some changes are needed.
The regulations will give the engineer's office the ability to deal with water shortages, Sanders said.
"We need to know, can New Mexico administer water rights outside of a completed adjudication?'' Sanders said. "The Legislature, the governor, everybody's been asking us for years, `Why don't we administer water?'''
State Engineer John D'Antonio will make the final decision.
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