Unanimous Criticism
When the Interstate Stream Commission (ISC) asked for public comment on its proposed rules for regional water security planning, the responses were nearly unanimous in criticism.
From acequia associations to wildlife agencies, counties to citizens, the message is clear: the rules fail to meet the Water Security Planning Act’s promise of regional, science-based, locally led, and participatory planning. Critics call the draft “unreadable,” overly legalistic, and designed to centralize power in staff hands rather than empower local councils.
The breadth of opposition from technical experts, grassroots leaders, farmers, and scientists alike underscores the fundamental problem: both the rules and the process to adopt them lack legitimacy.
Everyone Feels Excluded
Farmers fear losing water; environmentalists fear losing rivers. Scientists want rigor. Local officials want fairness. The Proposed Rules require improvement.
When every constituency feels unheard, the failure lies not in disagreement but in design.
A Deeply Flawed Rulemaking Process
Subject to available funding, the commission shall establish and conduct a regional water security program pursuant to the provisions of the Water Security Planning Act. NMSA 1978 Section 72-14A-4 (A) (2023)
Seventy-three public comments were submitted by the ISC’s September 27 deadline. The ISC’s rulemaking procedure drew as much criticism as the rule itself. Observers expect the upcoming October 15–17 hearing to expose not only weak content but deep procedural flaws that fail to provide opportunities for participation the State Rules Act requires.
No Analytical Rationale
Filed July 17, 2025, the proposed rule came with no analytical rationale or evidentiary record explaining why any provision was chosen. The law requires a “rational connection between facts and choices,” but neither the factual basis nor the evaluated alternatives are visible.
The record consists only of the rule text, legal process documents, public comments, and prefiled staff testimony. The exhibits accompanying the testimony are historical; many of them would have justified the 2023 Act but are irrelevant to the Proposed Rule. They are limited to old handbooks, reports, and more recent open house presentations and summaries. None are directly cited in the staff testimony. Without linkage, they serve as background, not evidence.
No alternatives considered by staff were analyzed; no technical reasoning was disclosed. The public was asked to comment blindly. Commissioners are asked to decide without knowing the staff’s reasons for constraining key provisions of the Proposed Rule.
Staff’s testimony, filed after public comments closed, does not answer the basic question: Why are the rules written as they are? Instead, the testimony recounts history and asserts sufficiency, offering no transparent foundation.
Now the Commission Must Lead
Staff and contractors designed and controlled every stage of drafting, revision, and internal review, withholding their reasoning. The resulting Proposed Rule does not provide the clarity or rigor needed to ensure planning is meaningful and state funds are not wasted. The Proposed Rule is riddled with passive-voice constructions, misplaced modifiers, negative language, and ambiguity in direct violation of specific drafting standards for Rules.
When Commissioners and the public lack access to underlying rationale for the vague and ambiguously drafted Proposed Rule, meaningful oversight becomes impossible. The staff-centric process embedded in the staff’s Proposed Rules to implement the Act contradicts the Act’s vision of transparent, Commission-adopted rules to require meaningful decentralized regional water security planning without excessive staff gatekeeping.
Non-Evidentiary Hearing
The hearing itself will be non-evidentiary, disallowing sworn testimony and excluding the presentation of expert witness testimony or other evidence by interested parties. Questions will be permitted only from Commissioners, and the public will have no opportunity to challenge, clarify, or rebut statements made during the proceeding.
Worthwhile water planning must integrate hydrology, climatology, law, economics, and the social sciences. Establishing the technical and social planning program the law requires is a technical matter. Integrity requires the Commission’s understanding of transparent reasoning and its consideration of evidence commission members find credible.
A non-technical hearing format is inadequate for the complex, interdisciplinary water security planning program Rules. The non-technical hearing record will be a transcript of opinions, not evidence, leaving the Commission’s decisions vulnerable to challenge.
Compressed Schedule
Staff have filed thousands of pages into the record. Only the State Engineer and ISC staff may present evidence and testimony at the hearing. The public comment period closed September 27. Staff expert testimony was filed on October 1. The hearing starts two weeks later.
This hearing structure and the compressed schedule violate due process requirements expressed in “case law.” The State Rules Act specifically requires adherence to “case law.”
Selective and Unexplained Revisions
Staff testimony responds selectively to a few comments and revises portions of the draft accordingly; it fails to identify why certain comments were singled out for a staff response and doesn’t cite criteria or evidence. Such opacity erodes trust and risks rendering the rule arbitrary under judicial review.
Public Comments
Some of the 73 public comments advocated for specific water governance outcomes. Most comments were broadly critical. Some provided detailed critiques, with many suggestions. A handful said the proposal was okay.
Scientists Want Science
Beyond process, agencies fault the rule’s substance. The New Mexico Department of Wildlife urged that councils be required, not merely encouraged, to use best available science regarding species and habitats.
Rio Grande Return and others noted that wetlands are omitted entirely.
A major coalition, New Mexico Wild, Audubon Southwest, Amigos Bravos, and Western Resource Advocates, warned that “may consider” clauses turn mandates into options. They called for a defined procedure to consider the needs of future generations, as the law explicitly requires, and for measurable accountability. Others called for the mandatory ‘considerations’ to be made substantive and reviewable, not simply be repeated from the Act without implementable substance.
Local Voices Seek Fairness
Community water systems raised parallel concerns. The Eldorado Area Water & Sanitation District questioned how priorities could be fairly considered and ranked across huge regions. Others said funding and prioritization criteria remain unclear. “Readiness” the only ranking criteria is undefined
Projects labeled ‘ready’ would be prioritized to outrank long-term programs and policies to balance water uses with water supplies, advance the public welfare, or protect water for future generations. Those efforts can’t be “ready” when proposed. They will require more time and resources, but they align with the law’s purpose.
Traditional Communities Demand Protection
Acequia leaders said the draft ignores centuries-old governance. The New Mexico Acequia Association warned that traditional uses remain unprotected and representation uncertain. The Cattle Growers’ Association voiced the same worry: that urban priorities would override rural needs without safeguards. Irrigators and Pueblos asserted their senior rights.
How Not to Implement Transformative Law
Unless the ISC reopens the record, files its missing rationale, and allows a fair process founded on rationale and evidence, this proceeding will stand as a case study in how not to implement transformative legislation.