Protest Niagara’s Lease of PNM’s Abandoned Water Rights

A permit application by Niagara Bottling, the Village of Los Lunas, and PNM to move old PNM water rights to Village wells for use at Niagara’s bottling plant faces strong legal objections. I formally protested this application to the State Engineer because it would do public harm. It would worsen the Middle Rio Grande’s Compact debt with Texas by relying on unused PNM water rights to increase the Village of Los Lunas’ groundwater pumping. According to a recent New Mexico Supreme Court ruling, the PNM water rights this permit application relies on may no longer exist.

My protest is based on six key points:

1. The Water Rights Are Abandoned
   On July 2, 2025, the New Mexico Supreme Court ruled that unused water rights can’t just sit on a shelf. If water hasn’t been put to beneficial use in a reasonable time, the right is presumed abandoned. PNM hasn’t used these licensed water rights recently. Through this permit application, PNM is again attempting to lease them. The characteristics of the proposed transaction appear to violate the “anti-speculation doctrine” adopted in the NM Supreme Court’s July 2 unpublished opinion.
2. New Mexico Faces Looming Compact Trouble
   Our state is about 160,000 acre-feet behind on water deliveries to Elephant Butte required by the Rio Grande Compact. Approval of this application would add more pumping, which would further reduce river flows legally belonging to water users downstream of Elephant Butte. This would push New Mexico closer to legal limits that, if violated, will result in Texas filing a new compact lawsuit in the U.S. Supreme Court.
3. United States Supreme Court Actions Are Without Recourse
   If New Mexico violates the cap on the Middle Rio Grande’s water delivery debt and Texas files a new interstate stream compact violation complaint, the U.S. Supreme Court has the first and final say — no appeal, no guarantee of fairness, and huge costs for New Mexico.
4. Every Pump Counts
   Pumping groundwater in the Middle Rio Grande reduces Rio Grande streamflow, a fact that has been recognized in NM water law since the 1950s. This project would increase water depletions in the Middle Rio Grande.
5. Niagara’s bottling operations waste water. I requested and reviewed Village of Los Lunas’ monthly billing records for the Village’s water and sewer services provided to Niagara. About half the clean water delivered to the bottling operation goes down the sewer.  This is wasteful.
6. The Law Requires Denial 
   The State Engineer must deny permit applications that impair other rights, fail to conserve, or would do damage to the public welfare. This proposal fails all three tests. This application puts profits before people, legality, conservation of water, and the river itself.

Many protests were filed. An Office of the State Engineer hearing officer will consider the application and protests in a formal adversarial hearing process that sorts out the issues, facts, and applicable law. The process concludes with the hearing officer proposing findings of fact and conclusions of law. The parties litigate those before the hearing officer. The hearing officer issues final versions. The State Engineer makes the decision based on the hearing record.

The hearing process takes time. We won’t see a decision soon. It must be “Denied.”