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Standing in water right applications: An Agricultural Perspective

The New Mexico Acequia Association was invited to present to the Water and Natural Resources Legislative Interim Committee on July 28th in Taos on the topic of "Standing in Water Right Applications." The reason this topic is important is that decisions about water applications, including new appropriations or water transfers, are an open and public process through administrative hearings before the State Engineer.  A bill was introduced in the 2015 legislative session that would affect the ability of the public to participate in the protest process.
 
Under current law, a person or entity that may be negatively affected by a proposed new use of water has a right to file a protest before the State Engineer.   The current law requires that a protestant must have "standing" or some legitimate reason to be concerned about the application. On the matter of impairment, a protestant is required to have a valid water right. On the matters of public welfare and conservation of water, the protestant has to demonstrate how he or she will be specifically and substantially affected by the proposed new use of water.
 
The topic of standing was being considered by the Water and Natural Resources Committee (WNRC) because a bill was introduced during the 2015 legislation session that sought to change the way that the standing of a protestant can be challenged, SB 665 (Griggs). The legislation did not pass during the 2015 session but it is receiving significant attention during the interim. Proponents of the bill may intend to introduce that or a similar bill in an upcoming legislation session.
 
The language of the bill included major change to the way the State Engineer determines whether a protestant has standing. The language of the bill would require that a protestant provide evidence of standing with the protest when it is filed with the State Engineer. The current laws and regulations already allow the applicant or the State Engineer hearing examiner to challenge the standing of a protestant during the administrative hearing process. NMAA and attorney Connie Ode of Taos gave presentations explaining that the proposed changes in SB 665 were unnecessary, and, furthermore, would have the effect of discouraging public participation in the protest process. At worst, the change could disenfranchise individuals or entities with legitimate concerns about a new use of water from filing protests because of a lack of resources and the impracticality of meeting the protest deadlines with burdensome requirements.
 
Overall, the NMAA and other advocates for rural and agricultural water rights have observed a trend in which the entities which need to acquire water rights for new developments are seeking changes in water policy that would "streamline" the water transfer process in order to facilitate their water rights acquisitions. Such policies would have the effect of accelerating the commodification of water in New Mexico and potentially contribute to the "drying" of rural and agricultural communities. The NMAA continues to advocate for sustainable water policy that recognizes the contributions of a diversity of water uses in New Mexico, including the benefits of irrigated agriculture to food security and the interconnectedness of irrigation to healthy rivers, aquifers, and riparian habitat.
 
A copy of the presentation by Paula Garcia, NMAA Executive Director, is available at www.lasacequias.org.