Judge: Feds Have No Groundwater Rights

The federal government does not have rights to groundwater in the Rio Grande Valley of southern New Mexico, a New Mexico judge ruled last week. But the ruling leaves the door open for the U.S. Bureau of Reclamation to apply for such groundwater rights in the future.

The ruling offered an untidy end to an argument that roiled state legislators who expressed concerns in a July hearing in Las Cruces that the federal government was trying to gain control of water that should be managed by the state.

While the state appeared to win in the ruling by Judge James Wechsler of the 3rd Judicial District in Las Cruces, the open door for future groundwater claims left attorneys scratching their heads about the ruling’s ultimate effect.

D.L. Sanders, lead counsel for the New Mexico Office of State Engineer, said the ruling leaves the question of how to manage groundwater in the region to the state, calling the ruling “a particularly good” decision.

But Las Cruces attorney Steve Hernandez, who represents the area’s largest irrigation district, said the ruling has the effect of simply putting off until later the question of how much groundwater the Bureau of Reclamation might be entitled to use on behalf of the farmers it serves.

“He’s punted,” Hernandez said of Wechsler’s ruling.

The ruling involves the century-old Rio Grande Project, with which the Bureau of Reclamation stores water behind Elephant Butte Dam for later delivery to farmers and other water users in southern New Mexico, Texas and Mexico.

In addition to the surface water carried in the Rio Grande and the project’s canals, the Bureau of Reclamation had claimed during litigation over regional water rights that it also should have jurisdiction over some groundwater. The agency’s rationale was that the close connection between surface flows and the groundwater beneath the river and irrigation canals meant it was, for all practical purposes, the same water.

Wechsler ruled the bureau has no such rights currently. But the judge said the agency is free to apply for groundwater rights in the future, just as any other farmer or municipality in the region can.

Bureau of Reclamation spokeswoman Mary Perea Carlson said the agency’s attorneys were still reviewing the ruling Monday and had no comment.
— This article appeared on page C1 of the Albuquerque Journal