State engineer denounces ‘outrageous’ federal waiver of New Mexico water laws to build border wall

The chief lawyer for New Mexico’s Office of the State Engineer told legislators this week that the state is pushing back against  the Trump administration’s announcement of a “waiver” of all the state’s laws and regulations regarding the use of groundwater to aid construction of a border wall. 

U.S. Department of Homeland Security Secretary Markwayne Mullin announced Friday in the Federal Register, an official repository of federal announcements, that he had unilaterally decided to waive all New Mexico laws and regulations bearing on water wells being used to build the border wall.

The waiver announcement potentially upended all ongoing lawsuits and challenges the state has mounted in recent months aiming to apply state laws and regulations to at least eight water wells that the U.S. Customs and Border Patrol agency and its contractors have drilled to help suppress dust and build roads as part of the border wall effort. 

The Office of the State Engineer in early August threatened to revoke the licenses of two Arizona-based contractors who drilled the wells. The office later that month also sued the federal border agency over the wells. 

But Mullin in the Friday announcement wrote that suspending all state laws and regulations is legal and necessary due to an “acute and immediate need to construct additional physical barriers and roads in the vicinity of the border of the United States in order to prevent unlawful entries into the United States.”

Nathaniel “Nat” Chakeres, the Office of the State Engineer’s general counsel, told lawmakers on the interim Courts, Corrections and Justice Committee on Tuesday that Mullin’s announcement is “outrageous” and “unconstitutional.” 

He said the move violates New Mexico residents’ property rights and also the 10th Amendment of the U.S. Constitution, which enshrines states’ rights to regulate publicly owned water. 

“We’ve always regulated the use of water on federal lands,” he said, offering examples of national laboratories or military installations being subject to state law. 

New Mexico sues feds, contractors over water wells drilled to aid border wall construction

“There is not a lot of groundwater to be had, and the New Mexicans who rely on that water for their livelihood…they’re worried,” Chakeres said.

The Office of the State Engineer has already drafted paperwork asking a federal judge to order the U.S. Customs and Border Protection agency to immediately cease using the water, Chakeres said. The office estimates the federal agency has already drawn millions of gallons from the aquifer. 

In addition to being unauthorized, Chakeres said the wells were poorly constructed. He shared an image of an open well casing that sat roughly six inches above pooled surface water. The next rain storm could send oil, gas or construction chemicals into the groundwater, he said. 

“That is bad. That is a direct conduit down into the aquifer. Anything can fall down in there,” he said. “It’s appalling. We were shocked when we came out and saw this. No New Mexico drillers drill wells like this.”