Pull plug on water bill, appoint state engineer

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By Sherry Robinson

Water hasn’t gotten much legislative attention this year. Maybe that’s why one bill with far reaching consequences has passed its first committee.
HB 109 would allow water permit applicants who disagree with the state engineer’s initial decisions to appeal directly to district court. In other words, a dissatisfied applicant could bypass practice and precedent and see if the courts would hand down a more favorable decision.
This is wrong on so many levels. It allows anyone who can afford a lawyer to short circuit the system. Introduced by a lawyer, Rep. Nate Gentry, R-Albuquerque, the bill has lawyer job security written all over it.
Recently, the state engineer denied an application to pipe water from Fort Sumner to the Rio Grande for use in Santa Fe. What if an application like this went directly to court?
The system ain’t broke and doesn’t need fixing. Currently, a dissatisfied applicant must work through the agency’s processes, which usually resolve grievances to everyone’s satisfaction, but if they don’t, then the applicant can go to court.
Last year, of 18 contested applications set for hearing, 10 were settled before the hearing, two were withdrawn and two were dismissed on procedural grounds. That left four. Under HB 109, 14 cases might have gone to district court unnecessarily. This bill would also allow unprotested cases to go directly to court.
Judges aren’t experts in hydrology or water law. Even if the bill became law, a judge would still want to see the administrative record, but there would be little to look at.
“The district court relies on our administration and our expertise,” said State Engineer John D’Antonio. “The courts are overloaded anyway. We’ve been pretty successful in setting up alternative dispute resolution, and a lot of decisions get remanded back. I think some attorneys, under the guise of making us more efficient, wanted the bill, but it won’t create any efficiencies. It will just backlog the district courts. They still have the ability to take our administrative record and look at it.”
The state engineer, at this writing D’Antonio is still on the job, having been neither fired nor reappointed. The governor would be well advised to not change horses midstream.
New governors understandably want their own people on board, but the state engineer is too critical for a political decision or a political hire. The late Steve Reynolds served five governors and both parties. Eluid Martinez was appointed by Republican Gov. Garrey Carruthers and served Democratic Gov. Bruce King. D’Antonio was Republican Gov. Gary Johnson’s secretary of environment before Gov. Bill Richardson made him state engineer.
The state engineer’s office is awash in serious issues, such as interstate compacts, adjudication of all the state’s water rights, tribal water settlements, and the usual push and pull among agriculture, municipalities and industry.
(Disclosure: My son was an entry-level paper pusher in the state engineer’s office for a few years, but what I write about here is the result of reporting on water issues over the years.)
D’Antonio is not really a political creature. He is a hard-working, focused professional. He has been willing to ask the hard questions: What will happen if we enter a sustained, serious drought? What will happen if we allow people to drill wells indefinitely? Then he’s been willing to tell us the truth and not just what we want to hear.
Sherry Robinson
NM News Services