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Land commissioner sues NM top water official

SANTA FE — There’s a new water fight brewing in New Mexico.

State Land Commissioner Aubrey Dunn

State Land Commissioner Aubrey Dunn has filed a lawsuit against State Engineer Tom Blaine, claiming the state’s top water official has violated the law by allowing too much underground water to be pumped —to be used primarily in oil and natural gas drilling operations — under temporary permits.

The lawsuit was filed this week in District Court in Santa Fe and focuses on permits issued in southeast New Mexico, the site of an ongoing surge in oil and gas drilling that has led to a hefty revenue uptick for the cash-strapped state.

In his legal bid to halt the practice, Dunn said high rates of groundwater pumping could be depleting flows in the Black River, a prime habitat for the Texas hornshell mussel, a freshwater mussel that was placed on the endangered species list earlier this year.

In all, he said the State Engineer’s office has unlawfully appropriated 415 million gallons of water since 2010 by issuing multiple permits in one year to the same applicants.

Water pumping under the temporary permits “was never intended to go to fracking,” Dunn told the Journal.

The land commissioner, a Republican-turned-Libertarian, has previously clashed with the energy industry over a policy implemented last year that aimed to curb how much water oil and gas producers take from a massive aquifer that lies beneath New Mexico’s eastern plains.

State Engineer Tom Blaine

He has also expressed concern about Texas rancher siphoning underground water from New Mexico and then selling it back across the state line to be used for fracking. New Mexico and Texas are already immersed in a separate dispute over Rio Grande water rights that is being considered by the U.S. Supreme Court.

Meanwhile, the land commissioner’s lawsuit against the state engineer was filed after several letters raising concerns went unanswered, according to the State Land Office.

A spokeswoman for the State Engineer’s Office said Friday she could not comment on pending litigation. She also said that the office had not yet been served with the lawsuit.

Blaine, a former director of the state Environment Department’s Environmental Health Division who also has private sector experience with water issues, was appointed as state engineer by Gov. Susana Martinez in November 2014.

The Black River Cottonwood Day Use Area is home to many species of birds and other wildlife. (Source: Bureau of Land Management)

Temporary water permits from the State Engineer’s Office are good for one year and can be obtained for a $5 fee, according to the agency’s website.

Under state law, such permits can be obtained by individuals, businesses or the state and applications must be approved by the state engineer as long as the proposed water use won’t “permanently impair any existing rights of others.”

However, the lawsuit alleges that, in some cases, the state engineer has issued six or more temporary permits within the same year for the same proposed use. Each permit authorizes the pumping of 3 acre-feet of water — or nearly 1 million gallons —and the issuance of multiple permits would allow for even more water to be pumped.

Dunn, who is forgoing a re-election bid this year to run for the U.S. Senate, said the state’s current oil and gas boom in southeast New Mexico has gotten “out of control” and could have long-term ramifications when it comes to underground water levels.

“All of us like to drink water and we kind of need it to survive,” he said.

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