In August last year, I reported on the State Engineer’s Hearing over the application by the owners of Copper Flat Mine to transfer to their production wells the leased rights to use 2,400 acre feet a year (AFY) water. You can find this series of articles by clicking on the hamburger button (three lines) in the upper right corner of the Citizen’s homepage; go to “Contributors”; find “Max Yeh”; and click “Posts.” As in those articles, the present one will be presented with a bias for the position of PAWA (Percha-Animas Watershed Association) a litigant in this case and with which I am affiliated.
Last week, PAWA’s attorneys — who also represent the Hillsboro Pitchfork Ranch, GRIP (Gila Resources Information Project), and the Rio Grande Chapter of the Sierra Club (together called “Hillsboro”) — submitted their written argument in this litigation in the form of two documents: Hillsboro’s Proposed Findings of Fact and Conclusions of Law and Hillsboro’s Post-Hearing Brief. I will try to summarize these long and detailed arguments, based on 453 facts and 71 legal conclusions:
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Hillsboro argues that the owner of these rights does not have 2,400 AFY of transferable rights but only about 1,800 AFY because those rights were validated through irrigation and a legally fixed portion of irrigation water use is not consumed but returned to the aquifer, thus not constituting beneficially used and transferable rights.
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These transferred rights are insufficient to mine according to NMCC’s claims to need more than 6,000 AFY for its federally approved mining project.
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The transferred rights cannot be beneficially used before 2029 when the lease expires because NMCC has yet to obtain a state permit to mine and a state permit to build a retaining dam for its tailings pond, among other impediments, to even begin construction of a mine.
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Hillsboro argues that considering the impacts of just the transfer of 2,400 AFY for ten years is insufficient and that the State Engineer must consider the full scenario of mining for 12 years using over 6,000 AFY because those are the terms of the federal mining permit which NMCC will operate under.
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NMCC has not shown, as the law requires, that its planned use of the transferred water will not harm other water users. On the contrary, the Water Rights Division (WRD) of the State Engineer’s Office has shown that pumping 2,400 AFY from the mine’s wells for ten years will result in impairment of some wells in Animas Creek as well as impacting negatively Rio Grande Compact water in the Rio Grande. The federally permitted project would increase impairment. In fact, the WRD recommends rejecting the application. Further, Hillsboro’s hydrologist has shown serious negative impacts to wells and springs on the Hillsboro Pitchfork Ranch and the Ladder Ranch as a result of groundwater outflows from the mine’s pit.
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NMCC has not shown, as the law requires, that its use of water does not violate the state’s requirement to conserve water since its primary use of water is to float process the ore and other less water dependent methods are available to it. Also, its transfer of rights from the Texas and Mexico border area to our area increases the negative impacts on the river system within New Mexico, requiring deactivating other rights as “off-sets” to compensate, thus effectively lessening the amount of usable water in the state.
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NMCC has not shown, as the law requires, that its use of water is not detrimental to public welfare. Its creation of jobs is questionable because of the impediments to bringing the mine into operations within the terms of the lease, because what jobs that might be created are temporary, because of the loss of jobs resulting from the cessation of the present use of the water in Santa Teresa, because of the jobs that might be lost due to the negative impacts of mining upon the Hillsboro Pitchfork Ranch and other local commercial water users. Further, its proposed operation threatens the riparian habitat of Animas Creek as a locus of aesthetic and natural activities such as nature photography, hiking, and other outdoor activities.
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NMCC fails to consider climate change in any of its hydrological calculations.
Other protesting parties will have also submitted their arguments, but I have not reviewed their briefs. However, judging from their presentations during the August hearings, there will be substantial objections to the transfer from the Water Rights Division of the State Engineer’s Office, the NM Interstate Stream Commission, the Elephant Butte Irrigation District, the Ladder Ranch, the El Camino Real Regional Utility Authority (administering to the whole Sunland Park area), and a group of Santa Teresa developers (Westpark I, Paseo del Norte, and Santa Teresa Land – the present user of that water).
A month is set aside for responses to the submissions, and then the Hearing Officer will issue her recommendation to the State Engineer, perhaps in April. The State Engineer will then make his decision.