LAS CRUCES — Friday presented a mixed bag for borderland communities and environmentalists opposed to border wall construction.
A judge halted border wall construction in Texas’ Big Bend sector — which includes national and state parks — in an unprecedented ruling.
Separately, a New Mexico case faced a setback: The federal government announced Friday it intends to waive New Mexico water code to pave the way for continued border drilling.
This comes as construction crews in four states race to put up walls funded by more than $46 billion in federal money — one of President Donald Trump’s top priorities. It has prompted many lawsuits, including one over the administration’s plans last summer to build wall along a holy site in Sunland Park, Mount Cristo Rey.
The state of New Mexico sued the federal government and its border wall contractors on Aug. 26, accusing them of illegal water use and repeated drilling without state permits. Customs and Border Protection has said water is required to produce concrete, construct roads and suppress dust in border wall construction. The state is seeking an injunction and repayment of the water illegally used.
Neither U.S. Customs and Border Protection nor the contractors listed as defendants in the lawsuit — Barnard Construction Company, Wyatt Drilling and Cascade Drilling — immediately responded to The New Mexican‘s requests for comment Tuesday.
Nat Chakeres, general counsel at the Office of the State Engineer, says the U.S. government’s Friday waiver — which also moved to transfer the case from state to federal court — is unconstitutional. And his office intends to fight it.
“The water of New Mexico is owned by the public for appropriation by private parties. That’s in our constitution, and the federal government accepted that constitution when we became a state,” Chakeres said in a presentation before state lawmakers at a Courts, Corrections and Justice Committee meeting at New Mexico State University on Tuesday.
Not only does the waiver violate the state constitution, it infringes on the 10th Amendment of the U.S. constitution granting state rights, Chakeres added.
“It brings it home how egregious this abuse of power is right now in the federal government,” state Rep. Tara Lujan, D-Santa Fe, said of the waiver at Tuesday’s meeting.
Customs and Border Protection agreed to stop drilling new wells Aug. 3, after ranchers and legislators raised concerns about unauthorized wells in the Mimbres, Hachita and Lower Rio Grande basins. They cited how diverting groundwater to produce concrete for the border wall could endanger their animals in an already arid region.
But the Office of the State Engineer found the U.S. Department of Homeland Security is continuing to use at least three illegally drilled wells: “They won’t tell us how much water they’re pumping, but we’re going out checking their meters and doing our best estimation of that,” Chakeres said.
It’s in the hundreds of acre-feet in water-scarce areas, according to the Office of the State Engineer.
Border wall contractors also bought water from livestock wells that aren’t permitted for commercial sale, Chakeres added.
The federal government obtained new well permits and procured water legally for border wall construction during Trump’s first administration, according to Chakeres. But for its “secondary barrier” this year, contractors withdrew their state permit applications after being told to do so by the Department of Homeland Security.
In Friday’s filing, the department defended this decision to waive New Mexico water code, saying the federal government is independent from state control under the U.S. Constitution’s supremacy clause.
The federal government also says that because the wells fall within the Roosevelt Reservation, a strip of federal land on the border, they should be exempt from state law. However, Chakeres has qualms with that argument.
“Our national labs follow state law, our military, our national forests, our national parks [follow state law],” Chakeres said. “That’s not a real argument from them. But those are really dry areas. There is not a lot of groundwater to be had, and really, the New Mexicans who rely on that water for their livelihood — they have livestock ranches going back generations — and they’ve made … a living in a really harsh environment, and they’re worried.”
Chakeres also said the wells were built improperly, with open casings and standing water that could let pollutants from construction, like oil and chemicals, seep into aquifers that New Mexicans use for drinking water.
“It’s appalling. … No New Mexico drillers drill holes like this. These are out-of-state drillers,” he said. “It’s shocking the types of standards that they’re violating.”
Chakeres said the office has begun administrative enforcement against the drillers, and hopes to revoke their state licenses through the preliminary injunction in federal court.
But he noted that this process takes time. For now, the office is imposing fines. This “scares parties who are engaging in illegal wells into stopping, and we’re already seeing good results on that. … Until they get a court order, it’s sort of the most effective tool we have,” Chakeres said.
However, at least one state lawmaker questioned whether the state should pursue more immediate action.
“When somebody is contaminating our water openly and really just defiantly, thumbing their nose at us. … I just don’t understand why there must be a reason for us not to be more aggressive about this,” Sen. Joseph Cervantes, D-Las Cruces, said Tuesday. “We get stuff done when we want to, very very quickly. And I’m just concerned that the reason we’re not wanting to do this is because we have some fear of the repercussions.”
A number of residents from Santa Teresa and Sunland Park — an area that has dealt with arsenic contamination in its water for decades — drove two hours round trip to attend Tuesday’s meeting in person.
Chakeres and environmental policy advisors also discussed the water and energy use behind Project Jupiter, the massive and controversial data center in these residents’ backyards, at Tuesday’s meeting.
“At a time when the federal government is already misusing the state’s very limited water for border construction, the conservation of this resource should be a priority,” said Doña Ana County resident Wren Barber.
Julia Gentin is a reporter for The Las Cruces New Mexican, The Santa Fe New Mexican and Searchlight New Mexico through a partnership with Report for America, a national service program that places journalists into local newsrooms. She covers the Southern New Mexico region. Learn more about Report for America at reportforamerica.org.
