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
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
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
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
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,"
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
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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