New law on deep water authority just in time

Call it the great water rush.

Since Jan. 1, dozens of corporations, developers, ranches — and at least one New Mexico county and one town — have laid claim to more than 820,000 acre-feet of water deep below New Mexico’s surface.

To put that in perspective, consider state Rep. Mimi Stewart’s take on the mad dash for water half a mile below New Mexico’s surface.

The Albuquerque Democrat said Monday that when the New Mexico House passed her bill to give the state authority to regulate such reservoirs of deep water in early February, “we had about 400,000 acre-feet” of requests for water 2,500 feet and deeper.

“By the time the Senate got around to it, six weeks later, it was a million acre feet,” she said.

Because of a quirk of state law, New Mexico has never had the authority to regulate how deep groundwater is parceled to users.

That is, until Monday.

Gov. Bill Richardson signed a bill (HB19) into law effective immediately that mandates that water deeper than 2,500 feet beneath the surface comes under state authority. That means state engineer John D’Antonio will be able to determine through a rigorous process who has ownership rights to the deep water, just as he has for water above that level.

Before Monday, because the Office of the State Engineer had no jurisdiction over water that deep, it belonged to whomever could pump it out and use it.

The rush for deep underground water showcases a truth about growth in New Mexico. Developers and city and county governments, in planning for future growth, are having to look beyond the state’s lakes, groundwater and snow melt for water to slake the thirst of new development. And increasingly they are turning to reservoirs deep beneath the surface.

Sandoval County already is eying building a desalination plant with a California corporate partner to turn the brackish H2O into usable water. And developers have struck deep water on the West Mesa of Albuquerque. The finds have caused planners and developers to talk excitedly of enough water to accommodate growth for decades.

And that makes the water from the deep aquifers a very valuable resource. The state stepping in to regulate water taken from the deep aquifers is meant to guard against the headlong rush becoming a melee, officials said.

“One application that we got, and I am not making this up, was for, quote ‘all of the unappropriated water not claimed in the state.’ That was actually in an application,” Richardson said Monday moments before he signed the bill into law.

D’Antonio said Monday that the new law will not apply to the notices already filed to lay claim to the 1 million acre-feet in the deep reservoirs. He believes there is much more water deep beneath New Mexico’s surface beyond the claims already filed, but it is unclear how much.

He also believes that the claims for the water lack specificity.

“There’s a lot of speculation in these notices that have been filed,” D’Antonio said.

And just because that water is there doesn’t mean it will be easy to pump to the surface, or even easy to make it usable, he said.

“There’s a lot of hurdles to clear with respect to cost,” D’Antonio said. He explained that it likely would cost $1 million to $2 million to drill a well. Then the water, which is brackish and mineral laden, “is going to have to be treated through a desalination process. And then there’s going to be a customer base that’s going to be able to pass that cost along.”

What’s more, the largest desalination plant in the U.S., an $87 million facility in El Paso, works with water that is 1,000 parts to 4,000 parts per million in minerals and salinity. That is “not real salty water,” D’Antonio said. Still, that plant discards 17 percent of the water that comes through the plant.

“Some of the brackish water discovered deep below the West Mesa have been found to have levels between 12,000 and 14,000 parts per million,” D’Antonio said. “So it’s more solids in there.” The implication also is that more of the water pumped up from deep below might be lost in the process.

New Mexico has been trying to get jurisdiction for this deep aquifer for years.

“It only happened this year because of oil and gas, agriculture, mining, and all the interests that already dig deep below our surface in coming together and agreeing on a bill,” Stewart said.