Another legislative session, another unnecessary bill that keeps New Mexico 50th on the good lists. No exception this year, as House Bill 121 and an eleventh-hour attorney general’s opinion attempt to make the argument that preliminary approvals of temporary water right transfers violate the due process rights of other water right owners and, according to the AG opinion, “fails to offer the basic fundamental requirements of due process.”
Whose due process rights are being violated? Arguably, applicants from industrial, agricultural, environmental and governmental sectors are having their due process rights violated as HB 121 guts a nearly 20-year practice of allowing preliminary approvals for the temporary transfer of water rights as a necessary tool. Its sponsors are Reps. Christine Chandler and Susan Herrera and Senate Majority Leader Peter Wirth.
This tool allows for water to be used for critical renewable energy and highway construction projects, agricultural water administration, endangered species purposes and other critical uses that otherwise could not wait for the minimum two-year process for a typical water rights transfer to run its course through the normal state engineer application, notice and protest gauntlet.
During these unprecedented times of extraordinary oil and gas revenues and opportunities to leverage huge amounts of federal funding for infrastructure projects, New Mexico through this legislation will throw another hurdle in the way of moving forward by preventing much-needed renewable energy and other infrastructure projects to be constructed in a timely and affordable manner.
The facts are that the state engineer conducts a rigorous and conservative impairment evaluation for all leasing act permit applications to ensure preliminary approvals will not impair existing water rights. No state engineer preliminary determination on impairment has been reversed in a final decision after an administrative hearing or been reversed or overturned in an appeal to the District Court. Furthermore, there is no blanket due process right to a hearing before the state engineer issues a permit, as there are many examples of state engineer actions that proceed without or before a hearing.
The acequia community is the main proponent of this legislation, yet the leasing act already fully protects acequias from unwanted transfers or temporary leases, as staff require approval by acequia commissioners before any state engineer preliminary approval of a water lease.
The acequia community concerns of limited water supplies and long-term drought are shared by all and are not relative arguments to preliminary approvals, as these allow only for temporary uses of water and do not constitute a new use of water but are merely changes in place and/or purpose of use of an existing water right.
The Energy Transition Act of 2019 sets a statewide renewable energy standard of 50% by 2030 for New Mexico investor-owned utilities and rural cooperatives, and a goal of 80% by 2040. HB 121 threatens compliance with the ETA as it takes away the very tools needed to construct these multibillion-dollar renewable energy projects in a timely and cost-effective manner. HB 121 arbitrarily limits the amount of water and lease terms required to construct these huge projects.
It’s time for New Mexico to walk the talk, stop searching for solutions to problems that do not exist and ensure due process exists for all, including the renewable industry. As industry commits its resources to New Mexico, let’s make sure the state gives industry the tools it needs to continue to invest in the future.
John D’Antonio Jr. is a native New Mexican and has served the last four governors in the roles of New Mexico state engineer, secretary of the Interstate Stream Commission, secretary of the New Mexico Environment Department and New Mexico commissioner on the Rio Grande and Upper Colorado River Compacts.
