It’s a classic environmental story: A company wants to sell huge amounts of water from public land to oil and gas companies for fracking. State Land Commissioner Aubrey Dunn Jr., a Republican from Southern New Mexico, is on one side of the issue, and Brian Egolf Jr. of Santa Fe, a champion of the environment and the leader of the state House Democrats, is on the other.
But don’t start making assumptions. Egolf, in his capacity as lawyer, is on the side of the company called GUS H2O that wants to sell water to the frackers, while Dunn is trying to stop it.
As is the case with virtually any New Mexico water rights case, this one is a complex matter with no obvious heroes or villains.
“I am disappointed that State Representative Egolf, Jr., and his client are seeking to use potable Ogallala aquifer water for oil and gas fracking,” Dunn said in a news release. “We have no objection to GUS H2O obtaining its water from a different non-potable zone, and encourage GUS H2O to work with my office to achieve this outcome.”
The news release said the company wants to sell 700 acre-feet a year of potable water from the Ogallala Aquifer in Lea County to oil and gas companies.
Egolf on Thursday stressed that he was involved in the case as a lawyer — not as a state legislator. “The firm’s client is a small business in Southern New Mexico,” he said, adding that GUS H2O had spent hundreds of thousands of dollars and complied with all the rules of the State Engineer’s Office when “the land commissioner chose to unilaterally to back out of the agreement.”
State District Judge David Thomson on Wednesday granted a temporary restraining order requested by Egolf’s client. The order blocks Dunn’s office from taking any action to stop GUS H20’s water rights application. Thomson scheduled a hearing on June 24 to determine whether the temporary restraining order should be suspended or whether a permanent injunction should be issued.
According to court documents, GUS H2O — a company based in Eunice, N.M. — last year entered into three easement agreements and three water rights agreements with the State Land Office to pump water on state land in Lea County. The agreements required the company to apply for permits with the State Engineer’s Office.
The applications were protested by the city of Eunice, which later withdrew its protests, and a company called Dasco Land and Cattle, which Egolf described as a business competitor of his client.
In his motion for the temporary restraining order, Egolf said Dunn on June 6 informed his client of his intention to withdraw his support of the water rights application in the State Engineer’s Office. On the next day, Dunn filed his motion doing so.
Egolf claimed Dunn’s motion came “with no known rule-making or administrative action whatsoever” and without citing any authority to take that action. Without the land commissioner’s support, GUS H2O cannot pursue the application.
The company, Egolf argued in his request for the restraining order, means that his client “risks losing the substantial sums it has invested in the pending water rights applications as well as the loss of future business opportunities and profits.”
Thompson ordered the State Land Office to withdraw its filing with the State Engineer’s Office. On Thursday, Dunn’s lawyers did that, but they noted the office might refile it depending on the outcome of next week’s court hearing.