U.S. Water News Online
ALBUQUERQUE -- New state water rules in New Mexico to help determine who gets water during periods of drought are being challenged in court.
The Middle Rio Grande Conservancy District, Tri-State Generation and Transmission Association Inc. and the New Mexico Mining Association contend the rules are unconstitutional and should be thrown out.
John D'Antonio, state engineer, improperly gave himself the power to decide who has water rights and who has the oldest senior water rights when he adopted the rules last month, the court petition contends.
The process should be carried out in court, said the petition, which was filed Jan. 3 in state district court in Socorro
D'Antonio said the new rules reflect his existing authority to administer water rights according to seniority and based on the best available information when no court adjudication has been completed.
The conservancy district contended the rules would illegally usurp its power to "distribute and allocate irrigation waters within the district."
State water law follows a doctrine in which water users with the oldest rights, or priority dates, get all their water before junior users get theirs.
The new rules follow that principle but also offer options to avoid cutting off junior users, such as expedited temporary water transfers from willing lessors, D'Antonio said.
The petitioners contend the new rules grant "broad powers to the state engineer and his water masters to make decisions imposing priority administration without providing a (hearing) to water rights owners."
The rules could "constitute an unconstitutional taking of private property without just compensation," the petition contends.
D'Antonio said the plan is constitutional.
"I was pretty surprised it was even filed," he said.
"What they're contesting is the general framework for the active water resource management rules and regs, which aren't basin-specific and they aren't going to be used for any type of administration," D'Antonio said.
The water management rules are a broad outline that will be used to develop detailed rules for individual water basins, he said.
The basin-specific rules will include a process to identify junior water rights users who could be cut off during water shortages.
D'Antonio said only the basin-specific rules would be ripe for a court challenge.
But Tri-State, which owns and operates a 250-megawatt electrical generating station near Prewitt, and the other petitioners disagree.
"These new regulations could possibly put those water rights at our facility at risk," said Jim Van Someren, Tri-State spokesman. "The new regulations seem to bypass what has always been in place, taking the courts out of the process."
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