Activists Challenge Middle Rio Grande Conservancy District’s Water Use

by Scott Wyland, sfnewmexican.com

The WildEarth Guardians are challenging the state engineer’s authority to grant a regional irrigation district a series of permit extensions without making the organization prove the water it diverts from the Rio Grande has a beneficial use.

The environmental group contends in its lawsuit the state engineer, the state’s top water official, has issued extensions for 90 years on the Middle Rio Grande Conservancy District’s water permits without making the agency prove beneficial use of the water.

Beneficial use is a basic tenet of New Mexico water law, which says a water right means beneficially using the water, not owning it — whether the purpose is for domestic use, irrigation, industry or recreation.

The parties presented their arguments in late January at a state District Court hearing.

State District Judge Francis Mathew said it could take 60 days for him to make a decision in the case, and he encouraged the parties to discuss a settlement.

Samantha Ruscavage-Barz, an attorney representing Santa Fe-based environmentalists said the conservancy district, with such “laissez-faire management,” can divert Rio Grande water between Cochiti Dam and Elephant Butte without showing the amount it is putting to beneficial use.

“The state engineer can’t tell us how much water MRGCD is using, and so the public doesn’t know how much water is at stake here,” she said. “Ninety years of unchecked water use is an absurd result of the state engineer’s interpretation and should not be adopted.”

The lack of accountability is unacceptable as a changing climate depletes water supplies, Ruscavage-Barz added.

The state engineer has continually used one clause in the statute — that he can extend the permit without proof of beneficial use if he deems it’s in the public’s interest, Ruscavage-Barz said. She argued a state official must comply with the entire statute and not pluck one clause that suits his purpose.

Attorney Charles Dumars, representing the conservancy district, said he believes WildEarth Guardians’ true aim is to reduce the volume of Rio Grande water the district and its irrigators use.

Simi Jain, an attorney for the state engineer, said after a permit extension is granted, state law doesn’t impose time limits for a permittee to establish beneficial use.

The state engineer has broad authority to interpret when circumstances call for granting an extension, Jain added.

The group’s argument, she said, “ignores the [statutes’] plain language and also dismisses the practical reasons for granting the state engineer discretion in the first place.”

“Things happen,” Jain said. “Sometimes projects can’t be built within the time frame set out in the permit. To cut the state engineer off and prevent him from exercising discretion really limits the state engineer from making those practical-sense decisions, which are within his purview.”

Ruscavage-Barz said the state engineer isn’t entitled to make indefinite extensions on permits just because it might be challenging to determine beneficial use.

“That certainly could have been an excuse in 1935 or 1940 or 1945 that it’s going to take a while to do this,” she said.

“It’s now 2023.” ▫