On August 29, 2025, the Lower Rio Grande litigation parties and “friends of the court” filed a proposed settlement with the U.S. Supreme Court’s Special Master in the interstate water lawsuit brought by Texas against New Mexico in 2013. The United States later joined the litigation to assert its claims against New Mexico. In 2023, the U.S. Department of Justice objected to a proposed settlement between the three Compact States, stating that New Mexico must be specifically required to timely meet its commitments. The Supreme Court rejected it.
The “canalized” Lower Rio Grande in the Mesilla Valley. Photo credit: El Paso Water
A revised settlement was filed in August 2025. It consists of a proposed Consent Decree and four implementing agreements between the litigants and the irrigation districts in both states. Following a Special Master hearing in Philadelphia, state water officials informed legislative committees in November that they expect the Special Master to recommend approval to the Supreme Court. If approved, the Court will issue a final decree making the agreements binding and enforceable. The Supreme Court practice is to create a continuing Special Master position to perform decree accounting and report or oversee compliance.
The Consent Decree and four implementing agreements exceed 130 pages and are highly technical. This New Mexico Water Advocates summary explains, in straightforward terms, what the settlement requires, what it authorizes, and how the parties are to carry it out. It identifies who must act, under what conditions, by when, and with what consequences. The settlement would significantly change water management downstream of Elephant Butte Dam.
New Mexico Water Advocates invites readers provide comments regarding errors or important material missing from this summary.
October’s Big Storm Helped the River But the Middle Rio Grande Depleted 40% of the Lower Rio Grande’s Share
An intense rainstorm centered on the San Juan River mountain headwaters spilled over into the headwaters of the Rio Grande, sending a surge of mountain runoff into the San Luis Valley. This is the storm that flooded Pagosa Springs. The October 14 Alamosa Citizen story headline on the flood was followed by the reporter’s understanding of routine Colorado water management in the subtitle, “Now it’s time to measure and account for the extra water in management of the Rio Grande Compact.”
The Rio Grande at the Del Norte gage peaked at 7,000 cubic feet per second—a very high flow for autumn. The Colorado Division of Water Resources contemporaneously estimated 20,000 to 25,000 acre-feet entered the San Luis Valley in Colorado, and reported that 15,000 acre-feet was diverted into the Valley’s canals. Colorado’s Rio Grande Division Engineer, Pat McDermott, told the Rio Grande Basin Roundtable that the Middle Rio Grande might see roughly 5,000 acre-feet of this water, but that it would likely not extend as far south as Elephant Butte Reservoir. The Rio Grande benefit in New Mexico actually was much larger but he was right about Elephant Butte.
Because the Rio Grande Compact divides the river’s flow among Colorado, the upper, middle and lower Rio Grande in New Mexico, and the Lower Rio Grande in Texas, how each state measures and manages water determines whether its downstream obligations are met.
The irrigation season in Colorado and New Mexico ended November 1. Colorado flows increased as a result but are tapering down. Deliveries into Elephant Butte are now slowly increasing, but didn’t benefit from the Colorado flood. The contrast between Colorado’s prompt accounting and New Mexico’s limited conveyance is striking.
A Growing Water-Delivery Debt
The Middle Rio Grande entered the year 124,000 acre-feet behind in its accrued annual water deliveries to Elephant Butte Reservoir. Throughout the year, that debt has inexorably grown due to the complete failure of this year’s spring runoff and the Middle Rio Grande’s excessive depletions over the last 15 years. New Mexico does not manage the Middle Valley’s groundwater pumping, which accelerated due to lack of river water, the Middle Rio Grande Conservancy District’s diverting more than New Mexico’s share, and poor channel conveyance.
Neither the State Engineer nor the Interstate Stream Commission have publicly discussed this year’s growing debt. Neither has emphasized New Mexico’s serious risk of a new violation of the Rio Grande Compact due to the Middle Rio Grande’s chronic taking of the Lower Rio Grande’s share, year after year.
I decided to calculate what happened on the Rio Grande in New Mexico from the storm. I used online river and reservoir gage data from October 12 through November 9, the last day for which a complete data set is available online. My calculations show that between those dates, 40,900 acre-feet of water flowed under the highway bridge to Los Alamos as measured at the Otowi Bridge gage. Colorado state-line water deliveries were about 60 percent; the other 40 percent came from New Mexico springs and tributaries. The Lower Rio Grande’s share of that, which is the same thing as the Middle Rio Grande’s delivery obligation, was 23,300 acre-feet.
Elephant Butte’s storage increased only 14,000 acre-feet and releases were 100 acre-feet, creating an actual water delivery during this period of 14,100 acre-feet. The result: this a deficit of 9,200 acre-feet over this 29-day period was added to New Mexico’s 2025 debit. Roughly 40 percent of the water that should have reached the reservoir disappeared within the Middle Valley.
Some unknown combination of Middle Rio Grande Conservancy District diversions, increased groundwater pumping that induces recharge from the river, and the poor water-conveyance condition of the river channel upstream from and into the nearly dry Elephant Butte Reservoir absorbed or intercepted much of the flow. This is why so little of the high flows reached Elephant Butte, leaving New Mexico much worse off with regard to its Compact obligations.
Why I’m Tracking Deliveries Monthly
The Water Advocates for several years has urged the Interstate Stream Commission staff to begin paying public attention to water deliveries through the Middle Rio Grande each month and forecasting the year-end results. Sure there are uncertainties and unknowns, but both tracking intra-year progress and forecasting the year-end results are an essential first step to recognizing and managing this serious problem.
The State can’t manage what the State doesn’t measure—and that includes contemporaneous annual compliance as a year progresses. Water delivery debt has grown significantly during 2025, without any Interstate Stream Commission acknowledgement of that fact. Both the facts and state agency silence should alarm the Legislature and the public.
My independent review of this year’s Compact deliveries began this summer. I requested data at the end of each recent month from the Bureau of Reclamation’s engineer who operates the official Rio Grande water accounting model. Last month he discovered a problem with the initial condition for the 2025 accounting. We both made bad estimates because Reclamation’s Elephant Butte Reservoir instrumentation, which measures the reservoir’s water-surface elevation and determines its storage volume, became stuck. I misunderstood how the model accounts for federal storage of New Mexico water in Rio Chama reservoirs to ensure the six Middle Rio Grande Pueblos’ Prior and Paramount water rights have a full supply. The release of unused prior and paramount water between now and the end of the year should materially improve net Compact deliveries over the remainder of the year because it was properly accounted when it was stored.
The Outlook
I project the year will end with an annual 2025 Middle Rio Grande water-delivery debt of about 26,000 acre-feet and an accrued water debt of about 150,000 acre-feet. If so, that may give us two years to avoid a Compact violation rather than only one. We must use this time to stop and reverse the current trend, prevent the violation that continued inaction will cause, and begin working our way out of Compact debt. Any accrued water debt above about 50,000 acre-feet effectively prevents Middle Rio Grande water from being stored upstream in Rio Chama reservoirs.
A public agency can’t deal with a complex problem that impacts the public unless and until the agency names the problem and describes it. A problem can’t be managed if progress toward the desired outcome is not measured. The State Engineer’s job is to comply with the Compact. The ISC’s job is to gather accurate information, professional analysis, and make it publicly available. Both have the duty to communicate openly and promptly.
I speculate this crisis is getting the silent treatment by both state agencies because they don’t have the Governor’s consent to confront it. Dealing with this compact emergency is not in the Governor’s 50-Year Water Action Plan. Neither is water planning. If we have to wait for a new Governor to attend to New Mexico’s water emergency, it may not be in time to prevent a brand new Texas v. New Mexico case before the US Supreme Court. Failing to take serious action now is another step toward the huge risks and costs of the litigation that will follow a violation. That’s a poor legacy for everyone involved.
New Mexico needs transparent water management to prevent the looming Compact violation. It needs funding. It needs it now.
At the Southern tip of our state, community members of Sunland Park and Santa Teresa have been fighting for clean and safe drinking water for years, plagued with high levels of arsenic contamination in their drinking water, and a water authority that chronically fails to address this issue. Residents now face yet another battle for that fundamental right: BorderPlex Digital’s “Project Jupiter,” threatens to deplete what little usable water is left. Project Jupiter is a hyperscale, multi-data center project proposed in Santa Teresa, and at this time, one of the largest data center projects proposed in the nation.
Data centers require massive amounts of water to operate, while also using unfathomable amounts of electricity. In response to water usage concerns in a region that’s been in extreme drought for decades, Project Jupiter claims it will utilize a “closed-loop” system, supposedly requiring only a “one-time” draw from the local groundwater. However, the concept of a “one-time” draw of water for a data center just isn’t real. “Closed-loop” systems still require additional water supplies, due to the necessary recycling of the water over time, as well as the evaporative cooling processes utilized to cool the used-water. “Closed-loop” systems also use significantly more electricity than other data center cooling-systems, ultimately misusing more water in the process.
Organizers protest a proposed $165 billion data center campus that BorderPlex Digital Assets wants to build in Santa Teresa, New Mexico. (Diego Mendoza-Moyers / El Paso Matters)
Data centers, like Project Jupiter, are springing up across the nation and, once built, quickly become the largest consumer of water and electricity in each locality. A large data center can consume up to 5 million gallons of drinking water a day, totaling up to 1.8 billion gallons of water used in just one year. Currently, BorderPlex Digital plans to have at least four large data centers in operation for Project Jupiter.
Data centers are water guzzlers, and in a region like Sunland Park and Santa Teresa, where it is unclear how much groundwater remains, a development like Project Jupiter is untenable. Especially when we know that Project Jupiter has named the Camino Real Regional Utility Authority (CRRUA), the public utility serving Sunland Park and Santa Teresa, as the water and wastewater provider for the project – placing the local public water supply at risk.
Sunland Park and Santa Teresa caught national attention in late 2023, when local and state officials issued a week-long Do Not Drink Order for residents. A state investigation later uncovered that CRRUA had bypassed its arsenic treatment systems for at least a year and a half; dumped an “unknown” amount of caustic soda into the public water supply in November 2023, and ignored, community complaints of slimy, smelly, and discolored water with children, adults, and pets becoming ill from consuming the water – until a week later when CRRUA issued the Do Not Drink Order. Since then, CRRUA has struggled to come into compliance with federal and state water regulations.
But the failure of CRRUA, the City of Sunland Park, Doña Ana County, and the state of New Mexico to ensure Sunland Park and Santa Teresa residents have clean and safe drinking water started long before the water crisis of 2023. Sunland Park and Santa Teresa’s public water supply has exceeded the federal health limits for arsenic for decades, and CRRUA has intermittently shut off its arsenic treatment facilities and bypassed its treatment systems, sometimes for years at a time – while consistently failing to notify the public when their water is unsafe to drink and consume.
Since the days of the ASARCO-smelter plant, which operated nearby and left centuries-worth of toxins and arsenic in the soil and groundwater of Sunland Park and Santa Teresa, and the local landfill and a medical waste incinerator in Sunland Park that became a key environmental justice case in the 1990s, extractive and polluting industries have targeted Sunland Park and Santa Teresa. This has left community members without critical access to clean drinking water. Now, Project Jupiter threatens to repeat that harmful and discriminatory history and take advantage of what little usable water Sunland Park and Santa Teresa have left. Local community members have questions that remain unanswered, while local and state officials rush to push Project Jupiter forward quickly for the potential approval of tax breaks.
Project Jupiter is a threat to New Mexico’s scarce water supplies and if it goes through, is yet another act of systemic violence and injustice against New Mexico’s southernmost communities.
What you can do: Take action in support of Sunland Park and Santa Teresa communities by submitting a letter to the Doña Ana County Commission by the upcoming September 19th Public Hearing when $165 billion in Industrial Revenue Bonds for Project Jupiter will be voted on. Urge commissioners to vote no. Click here to send a letter which you can personalize. Thank you!
Watershed restoration and management are critical for a sustainable water future
Watersheds Under Pressure
In recent years, watersheds in New Mexico and other Western states have been put in something of a spotlight. These land areas, which drain rain and snowmelt towards a given stream, river, or evaporative basin, have significant impacts on the quantity and quality of water available to ecosystems and human communities. Cumulative issues in historical watershed management, combined with changing climate and land use are increasingly impairing the function of our watersheds, resulting in fires, floods, erosion, and empty streambeds. Watershed restoration that supports healthy forests, wetlands, and streams presents an opportunity to slow and reverse negative trends, creating benefits that literally flow downstream.
What Is a Watershed?
A watershed is a catchment or drainage basin; an area of land that drains water towards a defining point, often on a river or stream, but sometimes in a lake or evaporative basin. Because most river systems have branched tributaries, watersheds are usually nested, with many small watersheds contained within larger ones. For example, the Santa Fe River Watershed is adjacent to the Tesque Creek Watershed, and both are part of the larger watershed of the Rio Grande. At the highest elevations in these basins lay streams’ headwaters, where cooler temperatures and higher precipitation rates create conditions where water is more plentiful. That extra water is often the primary source of streamflow for drier areas downstream, but the journey from headwater basin to large river or reservoir is a long one, and the ecosystems along the way play critical and complex roles in preserving the amount, quality, and timing of streamflow available to downstream users.
Natural Defenses Against Erosion and Flood
Watersheds provided incredibly valuable services to human communities. Perhaps most famous among these services are mitigating floods and reducing erosion. The roots of healthy forests, meadows, and wetlands stabilize soil, holding it in place and allowing it to absorb water during heavy rainfall. Extreme wildfires can completely destroy those ecosystems, allowing rapid runoff to erode soils and sweep tons of sediment, ash, and other pollutants downstream. Within just the past few years, post-fire flooding has taken multiple lives, critically impaired clean water supplies, and caused hundreds of millions to billions of dollars in damage in New Mexico towns like Las Vegas and Ruidoso.
Fire, Erosion, and the Rising Toll of Watershed Damage
While wildfires provide a dramatic example, more gradual degradation to watersheds’ ecosystems and land surfaces can exacerbate the frequency and scale of flooding and sediment damage. Overgrazing, the spread of invasive plant species, and aridifying climate conditions damage the riparian ecosystems around streams and arroyos. Like fires, that gradual damage destabilizes soils. The resulting erosion acts like a runaway train, causing incision of the stream bed, more drying, and more erosion. In June 2024, heavy rains pummelled the northern slopes of the Jemez mountains, where numerous small watersheds have struggled with unstable and eroding streambanks for decades. Floodwaters swept down the Arroyo la Madera dumping over 2 million cubic feet of sediment into the Rio Chama, obliterating the river channel and damaging homes, pastures, and irrigation infrastructure. While similar events are not unheard of in the region, local ranchers, farmers, and water managers alike have expressed concern that they may become more common under climate change, unless substantial efforts are made to stabilize watersheds and improve their resilience.
A Dry River in Albuquerque: The Cost of Lost Storage
This summer in Albuquerque, our watershed woes are manifesting not in floods, but in an empty riverbed. The reasons for this are plentiful and complex, but warming temperatures and the loss of functional water storage rank high among them. In watersheds like the Rio Grande, where most of the water in rivers comes from brief seasonal inputs of snowmelt or monsoon rains, the capacity to store water for later is especially important. While humans store some runoff in reservoirs like Elephant Butte, El Vado, and Abiquiu, we also rely on snowpacks, wetlands, and shallow groundwater to buffer seasonal and multi-years swings in water availability. Unfortunately, each of these water-storing watershed components face severe declines under climate change.
Wetlands and Riparian Zones: Nature’s Water Banks
Wetlands in particular have faced widespread decline in the state and across the Southwest. These sponge-like ecosystems slow runoff, and store it in saturated soils, ponds, and shallow groundwater. That stored water then feeds streams and springs during drying periods, maintaining higher baseflows with better water quality. In New Mexico, the degradation of wetlands and riparian ecosystems (meaning those occurring near and dependant on rivers and streams), have been largely caused by erosion, restricted river flows, overgrazing, climate change, and other human-driven factors, negatively impact the quantity and quality of water across much of the state, especially during dry years.
Restoration Works—But Faces Major Hurdles
Water experts increasingly call for watershed restoration as we work towards a sustainable water future, but the work remains embattled, fragmented, and relatively small-scale. Numerous casestudies demonstrate that well-planned thinning and managed burns can improve watershed conditions in New Mexico, preserving the hydrological function of soils and ecosystems while reducing dense vegetation that fosters extreme fires. Additionally, the 2025 updates to the Forest and Watershed Restoration Act signals bipartisan support for restoration near towns and residential areas. However, planning, managing, and implementing forest and watershed management strategies at the necessary landscape scapes remains extremely challenging and expensive. The acreages in need of treatment are immense, and working with reasonably skeptical communities is a slow process.
Other areas of watershed restoration face similar challenges. Wetland restoration projects, including beaver reintroduction and mimicry, are proving effective at raising water tables and reducing erosion, generating excitement in the few locations where long-term work has been feasible. But these wins remain isolated, and widespread implementation is barred by limited resources and capacity, logistical issues, and the slow pace of gaining community buy-in.
The Path Forward: Investment, Coordination, and Local Action
Landscape scale watershed restoration promises substantial benefits and improved water system resilience as we face a hotter, more arid future. Realistically, achieving this would require a landmark investment of resources at federal, state, and local levels. Following a year of massive cuts to Forest Service, Bureau of Land Management, and other relevant federal agencies, this seems challenging, but important work and promising opportunities remain at state and local levels. Outreach and communication with communities is the first step to gaining support for watershed restoration projects, often resulting in better planning and outcomes. Additionally, breaking down the historically siloed areas of watershed work and improving coordination across scales will be necessary.
Join the Water Advocates’ for our August Workshop on Protecting New Mexico Watersheds to learn more about protecting and restoring healthy, functioning watersheds across the state, and in doing so, support the rivers and ecosystems on which our communities depend.
The Middle Rio Grande’s 2025 River Water Supply Has Collapsed
A Sobering Conversation
On Friday, August 1, a kind and knowledgeable hydrologist at the Bureau of Reclamation’s Albuquerque office responded to my questions about the Middle Rio Grande’s river water supply and our year-to-date Compact deliveries to Elephant Butte. The answers were sobering.
The Future Has Arrived Early
It’s time to stop talking about New Mexico’s projected 25% reduction in renewable surface and groundwater supply by 2070. That number, from the widely cited 2021 report by the New Mexico Bureau of Geology and Mineral Resources, now understates our crisis. The 2025 shortfall in river water supply is more than 50%.
The riverbed through metro Albuquerque is dry. The Bureau of Reclamation’s San Juan–Chama Project, which imports water from the Colorado River Basin, hit a record-low allocation in 2025. This year’s water for project contractors is down 69% from a full supply. That’s a massive shortfall for the Albuquerque Bernalillo County Water Utility Authority, which receives about half the water, and the Middle Rio Grande Conservancy District , which receives about a quarter.
Data show the decline in river flows over the last 50 years, as illustrated in the chart below that I prepared in early June. The drone photo below the chart shows the river channel at the US380 highway bridge near San Antonio in August 2022, a relatively dry year. The river there had water then and the fields are green. This year, the fields may be green but due to rain and groundwater pumping. The river is dry.
Rio Grande at US380 Bridge near San Antonio NM, August 2022. Credit: The Water Desk. c Mitch Tobin
Compact Risk Is Flashing Red
At the May 15 Water Advocates workshop*, State Engineer General Counsel Nat Chakeres stated his belief that the Middle Rio Grande would avoid a Rio Grande Compact violation this year because the water delivery obligation to Elephant Butte is so low. I concur.
But unless the unusual 2025 monsoon delivers a lot more water across the dry watersheds to the river, the Middle Rio Grande’s accrued water delivery debt will rise to roughly 160,000 acre-feet—using up half of New Mexico’s remaining margin. That margin is our buffer before high-stakes interstate litigation returns.
If we exceed the 200,000 acre-foot legal cap on cumulative water delivery debt, we will once again face Texas in the U.S. Supreme Court—this time in another risky, high stakes case that will cost over $100 million and a decade or more to defend. The still ongoing 2013 lawsuit filed by Texas and joined by the United States over New Mexico groundwater pumping in the Lower Rio Grande cost more and is taking longer.
Texas’ formal attempt to bring Middle Rio Grande under deliveries into the ongoing Lower Rio Grande litigation failed, because we remain in compliance, that is, our water delivery debt doesn’t exceed the cap. The Compact creates a clear dividing line that isolates the Middle Rio Grande from the Lower Rio Grande, but only as long as the Middle Rio Grande remains in compliance.
What Must Be Done
We must acknowledge that our renewable water supply is shrinking now—not decades from now. And we must act accordingly. Either we take strong action to comply with the Compact, or we will be forced to devote our state’s water agencies to the enormous task of defending a new Supreme Court case—this time involving water for half of New Mexico’s economy and population. And we will be forced to comply, but with less leeway and discretion.
*Visit the “Past Events” tab at nmwateradvocates.org to access the May 15 workshop recording and slides.
Technical Notes:
This U.S Geological Survey Chart
The light blue trace in the chart below is from the U. S. Geological Survey’s river streamflow gage at the Otowi Bridge on the Los Alamos highway. It measures Rio Grande Compact inflows to the Middle Rio Grande. San Juan-Chama water volumes are subtracted from the gage reading, which is also adjusted for changes in upstream reservoir native water storage.
The green trace measures the outflow from the Middle Rio Grande at the Narrows within Elephant Butte Reservoir, where the river is flowing in an accessible channel many miles upstream of where the stored water pool has retreated. This is a temporary gage and is useful. The Rio Grande Compact actual water delivery is calculated as the change in storage in Elephant Butte Reservoir plus the release through Elephant Butte Dam.
The dark blue trace shows the flow of the Rio Grande downstream from the Rio Pueblo de Taos. It measures Colorado’s stateline deliveries, tributary inflows and the flows including the Red River and the Rio Pueblo de Taos, and large springs in the upper Rio Grande Gorge. Most of the additional water measured at the Otowi gage (light blue) comes from the Rio Chama, the Rio Embudo, and inflows minus diversions upstream from Espanola.
Comparison of the light blue and green traces shows very little of the inflow to the Middle Rio Grande has made it through. The compact requirement is 57% on an annual basis.
Current Data from Reclamation
Reclamation’s hydrologist said the Otowi gage flows include delivery of 33,884 acre-feet of San Juan-Chama project water in 2025 year-to-date. MRGCD has used essentially all of its allocation.
Federal agencies stored 32,668 acre-feet of native Rio Grande water under conditions when the Compact does not permit storage to guarantee water to meet the “prior and paramount” irrigation requirements for certain Pueblo lands. Of that total, 2,100 acre-feet has been released as of the end of July. The current rate of release is 40 cfs. It has been as high as 60 cfs. All remaining water will be released for delivery to Elephant Butte after the end of the irrigation season. Ir’s rare that prior and paramount water is used because normally the minimum flow of the river is enough. A substantial amount may remain, or not, depending on the monsoon.
The Upper Rio Grande Water Accounting Model shows the Middle Rio Grande’s year-to-date underdelivery of water to Elephant Butte as of the end of July is – 39,000 acre-feet.
Water and Natural Resources Committee of the NM Legislature
Public Comment Letter: Confronting Water Planning and Governance Neglect
Executive Summary
New Mexico faces escalating water crises—including aquifer depletion, unsustainable surface water use, unsettled tribal water rights, and the likelihood of a Rio Grande Compact violation by 2026. Yet the State lacks the capacity to respond effectively. The Office of the State Engineer and Interstate Stream Commission do not have sufficient resources to fulfill their mandates.
The 2023 Water Security Planning Act requires a decentralized regional planning program. Regions cannot succeed until they are funded. The ISC’s centralized, consultant-driven approach is causing delays and undercutting regional council formation.
False promises of game-changing amounts of “new water” have diverted legislative attention and resources from urgently needed investments in protecting our good water.
Key Recommendations to the Legislature’s Water and Natural Resources Committee:
Modernize and fund core state water agencies through one-time, multi-year appropriations tied to accountable progress toward outcomes.
Ensure near-term implementation of the Water Security Planning Act by holding ISC accountable for timely implementation of the Act’s decentralization mandate and offering grant funding for all Regional Water Planning areas to initiate self-organization in FY26.
Address the imminent new Compact violation risk due to Middle Rio Grande water overuse by providing the State Engineer with the practical enforcement authority and resources to administer diversions.
Meet New Mexico’s water needs by investing in water planning and management. Stop the neglect.
These actions align with the Committee’s 2025 work plan and are essential to restoring trust, resilience, and legal compliance in New Mexico’s water future.
One of the primary focuses of the New Mexico Water Advocates is advocating for critical support staff (capacity) and improved tools (such as modern computing capacity and software) for the Office of State Engineer and the Interstate Stream Commission. This past legislative session, the NM Water Advocates learned that two bills with the same purpose had been introduced in the House (HB348) and in the Senate (SB210), the main purpose being to raise the penalty for violations of State Water Law*. The existing penalty is a paltry $100/day, first set in 1907 and not updated since. Either bill, if passed, would have raised the penalty to $2000/day; for context, $100/day in 1907 is equivalent to over $3,400/day in 2025 dollars.
These two bills each cleared their first committee in the respective chambers in the first month of the 2-month session, but then stalled respectively in House Judiciary and Senate Judiciary, i.e., not being scheduled for a hearing.
The bills were bipartisan, with Republican Senator Jim Townsend joining as a cosponsor on both the SB and HB. NMWA appealed via email to the chairs of both of the Judiciary committees to schedule the bills; the HJC finally heard the bill on March 14, one week before the session ended and it passed unanimously with a couple of targeted, friendly amendments. When asked for a couple examples of water rights violations that this bill would help likely reduce, the OSE Chief Counsel cited illegal wells drilled to provide water to the O&G industry and illegal diversions of water to the cannabis industry. Additionally, there were only voices of support for the bill during the public comment period in HJC.
[aside: SB210 was never scheduled for a hearing in SJC, but that became moot when HB348 moved along quickly near end of session]
It was then passed unanimously on the House Floor two days later, assigned to the Senate Conservation Committee (SCONC), where it passed unanimously the next day, March 18, again with only voices of support from the public. Recently confirmed State Engineer Liz Anderson stated in the SCONC, “This is the most important bill for the agency (OSE). We can’t enforce against illegal water use with the current penalties. We need this (updated penalty) to modernize our administrative structure. “
With three days to spare before practical end of the session, HB348 seemed to have momentum. It was placed on the Senate calendar. NM Water Advocates expected the Senate Majority Leader to make sure the bill could get a vote by the full Senate. However, it unfortunately did not get scheduled for a vote before the session ended on Sat, Mar 22 and therefore the bill failed for another session. It’s a shame the urgency was apparently not communicated to Senate Majority Leader Peter Wirth.
OSE notes the maximum penalty for a water law violation was set in 1907 at $100 per day and has not been changed since. Analysis from OSE notes in most enforcement cases, the agency seeks payback of water rather than money. This is typically done through compelling the enforced-on party to reduce future diversions by the quantity of water which was previously over-or illegally taken or diverted. OSE has found this practice is a successful deterrent against future diversions or breakings of water law. The HJC amendment clarifies that OSE may not pursue monetary penalties (in the situations of over diversion of legally held rights, e.g., for farmers and ranchers,) and may only pursue repayment of water for over diversion of water rights.
