Water Resources

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Overview

Securing, Protecting and Conserving the Water Resource

Water: the critical ingredient to ensuring successful, sustainable development and communities. Ensuring successful acquisition, protection and conservation of this precious and scarce resource is the focus of our water law practice. Success in the water resource arena requires not only a firm understanding of water resource law but requires creative, proactive approaches to ensure water supply needs are addressed to meet population growth, economic development and business needs in a changing world. Demands for water are increasing, supplies are tightening and uses are shifting. This changing landscape presents challenges for states, municipalities, industry, Native American claimants, irrigators and the United States as these various stakeholders vie for access to and control over the water resource. Addressing the critical issues inherent in water resource use and allocation on behalf of individual stakeholders requires an ability to plan proactively, craft collaborative agreements, as well as litigate difficult and complex issues when necessary. Our lawyers work with clients to bring the appropriate skills to bear to address the complex and myriad water acquisition, use and allocation issues.

Overview of Water Resource Practice

Modrall Sperling's water law practice encompasses representation of a broad array of stakeholders including governmental entities, municipalities, regulated utilities, irrigators and energy and natural resource developers.  The firm's water law practice involves representation of clients in adjudications, and litigation of water supply issues relating to acquisition, allocation, movement and protection of supplies in the administrative context as well as in federal and state court.  The firm's water lawyers also actively represent clients with regard to transactional issues relating to water resources. Our water law practice encompasses working with clients on strategic water planning, conservation and the analysis and drafting of state and federal legislation relating to natural resources.

We assist clients with the complex issues relating to acquiring, ensuring and protecting water supplies.  Our water law practice includes:

  • Acquisition and protection of water supplies for municipalities, energy and resource development projects, and real estate development
  • Negotiation of contracts for water supply and the purchase and sale of water rights
  • Negotiation of and counsel relating to implementing contracts within U.S. Bureau of Reclamation and U.S. Army Corps of Engineers projects
  • Development of long term water strategies for municipalities, political subdivisions, business and industry
  • Assistance in drafting federal and state legislation
  • Securing and protecting water rights in federal and state court adjudications
  • Negotiation of complex, collaborative water agreements
  • Litigation of water supply issues
  • Assistance with regulatory compliance and litigation associated with water related Endangered Species Act issues
  • NEPA compliance related to water projects
  • Development of conservation programs for municipalities and industry

Native American Claims

Our water resource practice has a substantial Indian water rights component. We have both represented tribes with regard to the settlement of their water rights claims, as well as litigating on behalf of non-Indian water users in adjudications which involve substantial Indian water rights claims. In this context, our lawyers have both negotiated with tribes in settlement of claims and actively litigated various types of Indian law claims. In the San Juan adjudication, we have represented BHP Navajo Coal Company with regard to the settlement and congressional approval of the claims of the Navajo Nation in the San Juan River Basin. In that context, on behalf of BHP Navajo Coal Company we worked with the State of New Mexico and the Navajo Nation to ensure that the settlement and federal legislation approving the settlement recognized existing state water rights, afforded sufficient protections for those rights and allowed for appropriate state administration. We currently represent the State of Oklahoma with regard to litigation with two Oklahoma Tribes, Chickasaw Nation and Choctaw Nation of Oklahoma v. Mary Fallin, in her capacity as Governor of the State of Oklahoma, et al., Case No. CIV-11-927-W; and Oklahoma Water Resources Board v. United States of America, et al., Case No. CIV-12-275-W.

Energy and Resource Development

  • Worked on transactional components and administrative approvals in connection with acquisition of water supply for 210 MW gas fired generating plant owned and operated by Public Service Company of New Mexico.
  • Worked on transactional components and administrative litigation in connection with acquisition of water supply for 190 MW gas fired generating plant originally owned and operated by Duke Energy North America.
  • Representation of BHP Navajo Coal Company with regard to all of its water supply matters in the san Juan River Basin and issues relating to the supply of that water to BNCC's coal mines and two coal fired generating stations supplied by BNCC.  Other work with BNCC includes representation in the San Juan Basin adjudication, negotiation and settlement of Native American claims, negotiation of basin-wide drought based shortage sharing agreements and representation on ESA issues.  In the context of the San Juan adjudication participated in the litigation involving the denial of the claim by the New Mexico State Land Office to reserved water rights.  State of New Mexico ex rel State Engineer et al. v. Commissioner of Public Lands, 200 P.3d 86 (2008), cert. denied New Mexico Commissioner of Public Lands v. New Mexico, ex rel State Engineer, et al., No. 08-1066, April 27, 2009.
  • Representation of numerous renewable solar and wind projects in New Mexico on water and siting issues including negotiation of water supply agreements for the first utility scale solar project in New Mexico.
  • Worked on transactional components and administrative litigation in connection with a mining rights on behalf of Exxon Mobil Corporation. 

Interstate Issues

Modrall Sperling's water practice includes working with the complexity of interstate issues.  We represent clients on several interstate rivers where our lawyers address compact issues, interstate allocation issues as well as jurisdictional issues in the context of adjudications.  Currently, our representation of El Paso County Water Improvement District No. 1 as the downstream beneficiary in a federal interstate reclamation project, (Rio Grande Project) involves complex interstate allocation issues as well as how to properly adjudicate the rights for the interstate project in a state court in New Mexico.  We represent the District in state, federal and United States Supreme Court relating to litigation on the Rio Grande Project and the Rio Grande Compact.

Water Agreements

  • On behalf of BHP Navajo Coal Company, negotiation of basin wide shortage sharing agreement in lieu of priority administration among various basin water users including the State of New Mexico, two tribes, irrigation districts, municipalities and the U.S. Bureau of Reclamation.  The agreement was negotiated to address imminent litigation in the depth of drought and has now been in place for over 10 years as a mean to alternative administration.  The agreement has received recognition within the Department of Interior as a novel and successful cooperative basin agreement.
  • On behalf of the City of Carlsbad negotiation of agreement between the City and New Mexico Interstate Stream Commission regarding storage of compact flows.
  • On behalf of the Pueblo of Pojoaque negotiation of a settlement agreement in New Mexico, ex rel. State Eng'r v. Aamodt, No. CIV 66-06639-MV among four Indian Pueblos, thousands of non-Indian water users, the state of New Mexico, the United States and the County and City of Santa Fe.  Settlement Agreement was enacted into federal law in December 2010. Implementation of the settlement agreement through multiparty agreements and construction of a regional water system continues.

Water Supply

  • Analysis of water resource and environmental issues related feasibility and construction of inter-basin water supply pipeline.
  • Work with municipalities and utilities to ensure firm water supplies through existing or constructed infrastructure.
  • Worked on transactional components and administrative approvals in connection with acquisition of water supply for the Abo Canyon double track construction project on behalf of Burlington Northern & Santa Fe Railway. 

Participation in Water Resource Organizations and Activities

Our lawyers participate actively in state and national water organizations and speak and write on water law issues.  Maria O'Brien has served for 8 years as a New Mexico representative (by gubernatorial appointment) to the Western States Water Council, an advisory body to the Western Governor's Association on water issues and is the Council's current Legal Committee chair. She also serves on the Board of Advisors to Dividing the Waters, an affiliate of the National Judicial College providing legal education to judges involved in complex water disputes.  She is a trustee of the Rocky Mountain Mineral Law Foundation and serves as New Mexico reporter to the Foundation's Water Law Newsletter. 

Attorneys

Alerts

Experience

Some examples of Modrall Sperling's water resource experience include:

Municipal and Public Water Supply Representation

  • City of Albuquerque, New Mexico/Albuquerque Bernalillo County Water Utility Authority (ABCWUA): representation of the City (and successor in interest ABCWUA) with regard to NEPA compliance relating to implementation of the City's San Juan-Chama Drinking Water Project (DWP) for use of transbasin water from federal reclamation project; representation of City and ABCWUA regarding Endangered Species Act (ESA) claims regarding the City's DWP (Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2010); Rio Grande Silvery Minnow v. Bureau of Reclamation, 599 F.3d 1165 (10th Cir. 2010); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010)); negotiation of settlement agreement in ESA litigation and assistance in drafting of federal legislation relating to ESA issues and the City's DWP; continued representation of ABCWUA on ESA compliance issues.

  • City of Carlsbad, New Mexico: representation of City with regard to all aspects of water rights for City's municipal supply.  Representation has included negotiation of agreement with the New Mexico  Interstate Stream Commission for the sale of $6 million of water rights; successful litigation of objections to City's inter-basin transfer of water; drafting and implementation of conservation and wellhead protection ordinances; drafting and implementation of long term water strategy.

  • City of Rio Rancho, New Mexico: water counsel to the fastest growing city in New Mexico. Negotiation and implementation of City's access to an additional 12,000 acre-feet per annum of groundwater in a fully appropriated basin and assistance in continued acquisition of additional supplies; work with City on formulation and implementation of reinjection pilot projects, conservation ordinances, and long term water planning strategies.

  • New Mexico American Water Company: representation of largest private purveyor of municipal water in the U.S. with regard to interests in New Mexico.  Representation has included litigation and ultimate settlement of securing water supply needs in Ogallala Aquifer for purposes of service to the City of Clovis.

  • New Mexico Water Service Company: water and utility counsel to regulated utility with five operating districts as to all water supply and utility issues.

Adjudications

  • New Mexico, ex rel. State Eng'r v. Aamodt, No. CIV 66-06639-MV, United States District Court for the District Court of New Mexico.  Representation of the Pueblo of Pojoaque in context of federal court adjudication to determine all the water rights in the Nambe-Tesuque-Pojoaque Basin as among several thousand non-Indian water users, four Native American Tribes, the County of Santa Fe, the State of New Mexico, and the United States.  Six year negotiation culminated in a settlement agreement which was enacted into federal law in December, 2010 as part of the Claims Resolution Act of 2010.  Continued representation of the Pueblo on implementation efforts which include construction of a regional water system which will provide out of basin water to Indian and non-Indian water users.

  • New Mexico, ex rel. State Eng'r and Pecos Valley Artesian Conservancy District v. L.T. Lewis, et al., v. Hagerman Canal Co., et al., Nos. 20294 and 22600 (Consolidated), Fifth Judicial District Court, State of New Mexico.  Representation of the City of Carlsbad in state court adjudication to determine all the rights in the Pecos River Basin, New Mexico.  Issues in the adjudication have included resolution of claims within a federal reclamation project.

  • New Mexico, ex rel. State Eng'r v. EBID, et al., No. CV-96-888, Third Judicial District Court, State of New Mexico.  Representation of El Paso Improvement District No. 1 (EPCWID), a political subdivision of the State of Texas in state court adjudication in the Lower Rio Grande to adjudicate the water rights in the Lower Rio Grande, New Mexico including the rights of the United States in the Rio Grande Project.  EPCWID is one of two irrigation districts which are beneficiaries to the Rio Grande Project, an interstate federal reclamation project providing several hundred thousand acre-feet per year of irrigation and municipal water in New Mexico and Texas.

  • New Mexico, ex rel. State Eng'r v. Kerr McGee Corp., et al., Nos. CB-83-190-CV and CB-83-220-CV (Consolidated), Thirteenth Judicial District Court, State of New Mexico.  Representation of resource developers in adjudication involving irrigation districts, three Native American tribes, municipalities and hundreds of domestic well owners.  Issues include legal issues relating to quantification of Native American claims and challenges to quantification of individual domestic rights.

  • New Mexico ex rel. State Eng'r v. John Abbott, et al., Nos. 68cv07488 and 70cv08650 (Consolidated), United States District Court for the District of New Mexico.  Representation of the Pueblo of Pojoaque in federal court adjudication involving determination of water rights in the Rio Truchas/Rio Santa Cruz basins, tributaries to the Rio Grande.  Adjudication includes necessary resolution of a multitude of Native American claims, municipal claims and irrigation claims.

  • New Mexico, ex rel. State Eng'r v. United States and Jicarilla Apache Tribe, No. CV-75-184, Eleventh Judicial District Court, State of New Mexico.  Representation of BHP Navajo Coal Company, owner and operator of regional coal mines in adjudication involving the surface and groundwater of the San Juan River Basin, an interstate stream involving claims of four tribes, various municipalities, irrigation districts and federal proprietary claims.

  • New Mexico, ex rel. State Eng'r and Pueblos of Jemez, Santa Ana, and Zia v. Abousleman, et al., No. CIV 83-01041- MV/WPL (Jemez River Adjudication), United States District Court for the District Court of New Mexico.  Representation of the City of Rio Rancho in federal court adjudication involving the adjudication of claims in the Jemez stream system, a tributary of the Rio Grande.  In addition to the City's claims, claimants include four Pueblos, several towns and non-Indian irrigators.  The adjudication is currently in court-ordered mediation.