While MMD’s technical review focuses on the intrinsic aspects of NMCC’s application for mining, it is understood that the decision on the application will also depend on the Director’s discretion in granting the permit. In this regard, there are extrinsic factors that magnify the environmental impact of the proposed project. These are the long term drought in southern New Mexico, the certainty of climate warming in the Southwest, and the enforced reduction of groundwater use in the Lower Rio Grande Basin as a result of the settlement of Texas v. New Mexico and Colorado, No. 141, Original Action.
That is to say, these extrinsic factors create the background against which the environmental impact of mining Copper Flat Mine must be evaluated. Although extrinsic to the mining operation, these factors impinge on the technical details of the application. For example, the applicant is required to provide climatological data on precipitation and temperature [19.10.6.602D(13)(a) NMAC] as part of the baseline data. But past data at a time of rapid climate change does not provide the needed assurance for permitting.
A few years ago, NM Interstate Stream Commission organized a year-long study of our climate and projected this data for 50 years into the future. There will be a 25% reduction in water in the state, a loss of 750,000 AFY. Mean temperatures will be higher by over 5 degrees F. Precipitation events will be more extreme (which is why I have advocated for at least a 300-year storm event as a standard of safety instead of the usual 100-year event which the present application has reverted to). Soil conditions will change. That is the proper “baseline” against which the mine’s impact must be measured. The MMD Director should consider this report: Climate Change in New Mexico Over the Next 50 Years: Impacts on Water Resources.
Similarly [19.10.6.602.D.13 (g) NMAC], the application cannot be considered outside of the legal framework for water use in the Lower Rio Grande Basin that the State of New Mexico has agreed to in settling Texas’s suit against New Mexico in Texas v. New Mexico and Colorado. On May 29, 2026, the Supreme Court of the United States accepted the Consent Decree whereby all the parties in the case, and all the implied entities affected by the case, accept an apportionment of the waters of the Rio Grande based on water usage statistics during the 27 year period between 1951 and 1978. The Lower Rio Grande Basin has been exceeding its share by some 18,500 AFY and must cut-back its use.
In order to fulfill this commitment, New Mexico has made several agreements: Groundwater Settlement Agreement, with the United States, and Operations Settlement Agreement, with the United States, Elephant Butte Irrigation District, and El Paso County Water Improvement District No. 1. These agreements require New Mexico to permanently reduce groundwater use in the Lower Rio Grande Basin by 18,200 AFY over the next 10 years, half of that in the next 5 years.
Although NMCC’s water rights are excluded from this retirement of water rights because they were only used for a few months 43 years ago – thus not part of New Mexico’s decades long overdraft – they are susceptible to curtailment because of the resulting basin-wide shortage of water.
New Mexico has until October 1, 2026, to decide how it will meet this requirement and also prevent future shortfalls. If it does not come up with a plan, the basin will be administered under Active Water Resource Management (AWRM), NMSA 1978 72-2-9.1 and 19.25.13 NMAC. Even if New Mexico has a satisfactory plan for the Lower Rio Grande Basin, continuing overuse of water in the Middle Rio Grande Basin threatens continued under-delivery of water into Elephant Butte Reservoir which will trigger Compact compact violations. Thus, the Lower Rio Grande Basin will likely be administered under AWRM in any case.
Under such administration, NMCC’s junior water rights (mostly having a 1975 priority) are at risk of not being exercisable. Use of these rights at Copper Flat Mine would be practically an entirely new usage in a closed water basin. They would be vulnerable to curtailment under a priority call or under some version of priority management within AWRM. At a time when the State has committed itself to reducing groundwater usage in the basin, it would seem strange to initiate new usage.
In view of this cloud that hangs over the availability of water rights for this mining project, the MMD Director needs to consider what these agreements mean for New Mexico’s future water use. Nothing will be clear until next month when we see what southern New Mexico water users have decided about how to reduce groundwater usage by a huge amount over a few years. While the law does not give the MMD authority to administer and regulate water use (that is the State Engineer’s job), the MMD is charged, as all state agencies, with the duty to protect public welfare in all its actions, and right now, we are in a water crisis.
The Director must remember that our water crisis is not just caused by climate change, drought, and legal settlements. It is caused by all our — the whole society’s and culture’s — habit of over-consumption. To ignore this continuing history makes a mockery of the mining law’s reasonable requirement that mining projects achieve as much as possible a hydrological balance in closure. 19.10.6.603C(4) NMAC.
Please read Laura Paskus’s article “Aridification is here,” in Source NM: https://sourcenm.com/2026/08/19/aridification-is-here/.