About 10 days ago, my mother told me that she had received a census from the federal government. The survey, which she believed was sent to her from the U.S. Department of Agriculture, stated in its instructions that compliance was mandatory and that failure to return this data subjected residents to fines and penalties. But aside from the nuisance factor involved in completing yet another census document, the invasive, personal nature of the questions bothered my mother a great deal.
For example, she said that the form asked how large the house was, how many rooms it contained, how many bathrooms it contained, whether it was site built, and how much land it sits on. The questionnaire demanded to know how much the last utility bills were for the property and whether the utilities were public or private. Further, the census required detailed information on each occupant of the home including age, annual income, the source of that income, whether any of the residents was receiving any sort of public assistance including Medicaid, and on and on. The form demanded information about whether the house had a mortgage on it and ordered the homeowner to estimate its value "if you had to sell it today."
My parents bought their home in 1978 and paid it off several years ago. It sits on a half acre in a rural community in New Mexico. Other than being located on a state highway, it has no distinguishing characteristics that might be of interest to any government agency. That made the intrusive nature of the questions to homeowners even more odd. When Mother told me about it, she suggested the questions might be connected in some way to the new push for sustainable housing and urban living--after all why else would the federal government require such detailed information about not only the structure of the house and the cost to maintain it, but also the make-up of the occupants and whether the property is mortgaged or paid off. Always the optimist, I responded that perhaps the information was needed by the USDA to refine the lending guidelines for the Guaranteed Rural Housing loan program. After all, many of areas within close proximity to my parents' home are eligible under the Guaranteed Rural Housing program, and information about the incomes and occupations of the residents as well as type of housing available could be useful in updating guidelines for a loan program that qualifies both the borrower and the property based on a set of pre-determined, area specific guidelines.
I had almost forgotten about the entire incident, when last week, I saw a tweet linked to an article from the Las Cruces Sun News about a law suit that the federal government had filed against the state of New Mexico to seize control of the state's groundwater. I was shocked--partly because I watch local news covering events in El Paso and Las Cruces every morning, and I had never seen even a mention of this. (The next day the local ABC affiliate did briefly mention that the state and the federal government were going to court in a battle over the water rights.) I wondered how a legal conflict so crucial to our state could go unnoticed and unreported.
Many people who have not been to New Mexico tend to think of the state only in terms of the arid scenes from old Westerns, but large parts of our state are thriving agriculture regions. In addition to producing green chile and onions, New Mexico is also home to beautiful orchards, including Stahmann Farms--a pecan orchard spanning several thousand acres. The state sits atop the Deming Water Basin, which produces delicious water. The combination of bright sunshine and good water makes Southern New Mexico an ideal location for farms of all sizes, while Northern New Mexico boasts some stunning forests.
Of course, without our water, none of this would be possible, and now the federal government has apparently determined that they have a legal claim to this lifeline. Much of the irrigation our region depends on originates in the Rio Grande through Elephant Butte irrigation district. Through an agreement with Texas, New Mexico and the nation of Mexico, the water from the Rio Grande is divided among these three entities. The state of New Mexico is responsible for managing ground water pumping. The Feds argued that they have ownership over the state's groundwater because the flow of the Rio Grande, and the surface water, over which they already have authority, is closely tied to the groundwater. Currently the Elephant Butte Irrigation District covers about 90,000 acres. In the spring, water that has been stored at Elephant Butte lake is released by the federal government from the dam into the river and then delivered through the EBID canals to farmers in Southern New Mexico, El Paso, Texas and Mexico. Once farmland has been irrigated, the water can be recaptured in the drain systems and sent on to other farmers downstream. That re-use of the water was one of the factors that the Feds sought to regulate. The Fed also want to be able to prevent the "overpumping" of ground water by residents of New Mexico.
During a year of drought such as the one that we are currently experiencing, very little water has been released from Elephant Butte to the farmers. As a result, the local residents have had to pump groundwater from their wells in order to irrigate their orchards and farms and keep their crops alive. And that practice apparently does not sit well with Uncle Sam.
The Federal government is also apparently alleging that they have a right to claims for damages to groundwater in a damage case involving Chevron. The Feds claim that the damages owed to them should be awarded in the form of the management of the water rights.
The state argued that the federal government's claim to the water was "unprecedented" and apparently a state judge agreed. On Wednesday, August 1, state judge James Wechsler determined that the federal government has rights only to the surface water. That does include management of the river water and may include water reused by farmers downstream, although that area appears a little gray right now following his ruling. But the Feds do not have the right to regulate how much water New Mexicans pump.
While we have won this first round, the fact that the Feds would even attempt to take over management of the groundwater is very troubling. There are so many implications for the state--for the cities, for the farmers, and for the rest of us. When asked about the case, Las Cruces city utilities director Jorge Garcia told The Las Cruces Sun News, "If the feds end up owning the groundwater, it would negatively affect any future water planning the city would want to do." In fact, it would negatively affect any future growth of any of the cities. How can cities attract new industries or residents without control of their own water? And doesn't ownership of the water give the federal government the right to dictate exactly where residents can live and work?
Although the Feds claimed that they do not actually want to control all of the groundwater usage, state rep Brian Egolf told The Albuquerque Journal that "There's not necessarily a limit to what the feds are claiming," adding that if the Feds won the suit they could set up pumps, pump out the ground water and ship it to other states. That could leave our state with insufficient water not only for the farmers but for the residents.
The Feds' claim that they should have the legal rights to the groundwater go the heart not only of states' rights, but also private property rights. When the federal government asserts the right to take the water and send it wherever they wish, they have the ability to render properties worthless.
That takes me back to my mother's census form. Did this questionnaire go out because the Feds plan to own the water, and they want to find out exactly to whom it is being supplied? If they eventually do win, will they assess a limit on how much water each household can use? Will there be a "water tax" for those property owners with wells who are already paying the cost of electricity to pump water? Or might they just decide that certain property owners in some parts of the state are using up too many resources and are not allowed to pump anymore water at all, forcing them to abandon their properties or have them seized by eminent domain. In an era when governments increasingly believe that they should have final say over every aspect of our lives, the possibilities are almost endless--and very frightening.
What is for sure is that the water battle is not over--it is just getting started. According to an article posted at kunm.org., public information officers of the New Mexico State Engineer's office say that the federal government is pursuing three legal theories that they hope will ultimately change ownership of the New Mexico's groundwater--clean up of a mine in northern New Mexico, protection of an endangered species in the Middle Rio Grande, and tribal water rights claims. The state appears to be in for a long legal battle to hold on to what has always been theirs.
Maybe the battle is part of a larger plan to exert ever-increasing control over the lives of citizens. Then again, maybe it is just a little federal retribution against the state which allowed Tea Party Conservatives to elect the first female Hispanic governor in the history of the United States. We may never know the true answer to that last question. And it may be many years and court battles from now before we can know with any certainty whether we get to keep our water.
Govan Law Centre welcomes news of additional consumer protection for customers of Claims Management Companies (CMCs) in England and Wales, but remains concerned that Scottish consumers continue to go without any legal protection in relation to CMCs providing services in Scotland.
