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State Engineer Can Allot Water

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As the last of this year’s irrigation water trickled down Rio Grande Valley ditches Thursday, the New Mexico Supreme Court said the Office of the State Engineer has the right to step in during a drought and determine who is entitled to scarce water supplies.

The decision upholding a 2003 state law will give officials new tools to manage scarce supplies if 2013 is another drought year, said State Engineer Scott Verhines. “I am pleased,” he said in a telephone interview.

The ruling gives the state water engineer the necessary legal tools to “bring order to chaos,” said D.L. Sanders, the office’s chief counsel.

Critics say the ruling puts too much power over water allocation in the hands of the state engineer and could deprive farmers of water before they ever have a shot at a court hearing to determine their rights.

That upends a century of New Mexico law, said Tessa Davidson, an Albuquerque attorney who represents farmers up and down the Rio Grande Valley. “It is a radical change,” Davidson said Thursday.

Farmers, who hold most of the highest priority water rights in the state, fear the ruling could allow the state’s cities to muscle ahead of them in line for scarce water in a drought.

Rather than fixing the problems, it creates a new legal thicket that could lead to more litigation, said said Janet Jarratt, a Valencia County farmer who is a frequent critic of the state’s current water management bureaucracy. “It’s going to make it worse,” Jarratt said.

The court’s ruling upholds 2003 legislation directing the Office of the State Engineer to find a shortcut to the problem of “adjudication” – the cumbersome legal process of determining who has highest priority rights to water in times of scarcity.

Under New Mexico law, the earliest water users, generally farmers in the state’s main river valleys, have the highest-value water rights, giving them first claim on water in times of scarcity ahead of users who came later, most notably cities. But the law requires adjudication to determine exactly who is entitled to how much, and in what order of priority.

The adjudication process grinds slowly. On the Rio Grande in southern New Mexico, for example, adjudication began in 1986 and is likely to take another 15 years to complete, Sanders said. In the meantime, the state lacks the authority to enforce water rights by curtailing users taking more than their legal share, said University of New Mexico law professor Reed Benson.

The current system also creates incentives for those using more than their share of water to bog down the legal adjudication process, Benson said. Junior users – those who stand to lose out once the court finally decides who is really entitled to the most water during a drought – have the ability to slow adjudication down so they can keep using water in the meantime, he said.

The problem came to a head in the drought of the early 2000s, Sanders said, when farmers in river basins around the state complained that upstream users were taking water they weren’t entitled to.

In 2003, the Legislature passed legislation offering a shortcut. Under the new law, the Office of the State Engineer could come up with its own priority lists of who is entitled to how much water. The process parallels the formal adjudication process in the courts, but can be implemented far more quickly. But critics questioning those rules took the state to court.

The rules to implement the process generally followed the existing priority rules, meaning farmers on land in production for a century or more would have higher priority rights to water than cities that came later. That process would allow the Office of the State Engineer to protect the farmers’ right to water, even when the formal legal process of adjudication has not been completed, Sanders said.

But when the agency in 2004 rolled out the details rules to implement the legislation, farmers and others complained about language intended to provide a “soft landing” for city water users and others with lower priority water rights who might otherwise see their supplies curtailed.

Tri-State Generation and Transmission Association, an electric generation co-op that serves communities in Wyoming, Nebraska and New Mexico, filed suit to block the rules in what spokesman Lee Boughey described as “in an abundance of caution to protect our water rights at Escalante Station,” a water-cooled, coal-burning power plant near Prewitt in western New Mexico. Boughey said the company is reviewing the decision to determine what effect it might have on their operations.
— This article appeared on page A1 of the Albuquerque Journal

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