SANTA FE, N.M. (CN) — With 98 percent of New Mexico suffering from drought this summer, a fight over water rights is gearing up in the state capital, where the commissioner of public lands sued the state engineer for allowing millions of gallons of groundwater to be used for fracking.
State Commissioner of Public Lands Aubrey Dunn sued State Engineer Tom Blaine for issuing multiple temporary water permits to the same entities, circumventing rules meant to guarantee fair distribution of water rights across the parched state.
The June 21 lawsuit in Santa Fe County Court centers around temporary water permits, good for one year and intended to allow individuals, businesses or the state to use underground public water for “prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop natural mineral resources of the state.”
Each temporary permit application costs only $5 and entitles its holder to pump up to 3 acre-feet — nearly 1 million gallons — of groundwater over the course of a year. An acre-foot is enough water to cover 1 acre 1 foot deep. City planners estimate that an average suburban home uses about 1 acre-foot of water a year.
Dunn claims in his lawsuit that the state engineer has been issuing multiple temporary permits to the same applicants for the same year year, allowing diversion of hundreds of millions of gallons of groundwater to these temporary permit holders, much of it used for fracking operations around the state.
Temporary permits were never intended to be used for fracking operations, Dunn says, and certainly were not designed to be issued in bulk. The complaint cites three temporary water permit applications submitted by Chisolm Energy in 2017 requesting use of livestock well water for fracking. The applications were identical except for being labeled “Phase one,” “Phase two,” and “Phase three.”
All three applications were approved, so a total of 2.9 million gallons of water could be taken by the fracking operation from the livestock well.
In another instance, the complaint states that Office of the State Engineer public records show that 20 permits were issued for use at the Thunder Run Gravel Quarry in Carlsbad, theoretically for gravel-washing, but nine of the permits list “undetermined O&G” as a secondary purpose.
Dunn says this stacking of temporary permits is a way of getting around paying for water rights and far exceeds Blaine’s authority as state engineer.
Dunn says diverting such vast quantities of groundwater under temporary permits threatens water levels across the state, such as in the Black River tributary of the Pecos River, where habitat of the endangered Texas hornshell mussel is threatened by low flows of the river.
The complaint includes as attachments two letters Dunn sent to Blaine expressing concern over the effects of water diversion from pumping; Dunn says he received no response to the letters.
Dunn seeks writ of mandamus halting the issuance of multiple permits to the same entities, or alternatively forcing Blaine to present to the court his reasoning and justification for issuing multiple permits.
Neither party responded to requests for comment Tuesday, the first day the complaint was made available to the public.