Federal government claims power to override New Mexico law over illegal border wells

SANTA FE - In a stunning violation of states' rights, the Trump administration claimed Friday that the Secretary of Homeland Security can unilaterally decide New Mexico laws do not apply to the federal government.

The notice, published October 2 in the Federal Register, purports to "waive" every New Mexico water law and regulation as applied to the border wall. The waiver is the latest escalation in a monthslong dispute over how the federal government is supplying water for its border wall. The Trump administration is building new barriers along nearly 180 miles of New Mexico's southern border, and to supply that construction, Department of Homeland Security contractors have drilled at least eight wells without state permits.

"New Mexico will not stand by while the federal government carelessly drains our most precious resource to push its inhumane agenda," said Governor Michelle Lujan Grisham. "New Mexicans refuse to pay for the federal government's flagrant disregard for the Constitution with our water. New Mexico wants a secure border, and we will always support serious investment that stops drugs, contraband, and human trafficking. But that has to be done in partnership with states, not at their expense."

"The Department of Homeland Security is stealing water from New Mexicans to build the border wall," said State Engineer Elizabeth K. Anderson. "Rather than do the right thing and follow the law, DHS is trying to waive all of New Mexico's water laws. This so-called waiver is unconstitutional. We will continue fighting for the water rights holders of New Mexico."

In April, U.S. Customs and Border Protection told the Office of the State Engineer that the federal government considered itself "immune" from New Mexico's groundwater permitting law. After the State Engineer threatened to revoke the licenses of two drilling companies, CBP said it had told its contractor to pause new wells, but DHS kept pumping from the wells already drilled, drawing down aquifers in a part of the state where groundwater supplies more than 80% of water use.

In August, the State of New Mexico sued the United States and its contractors in state district court to stop the illegal drilling and pumping and to recover the water already taken. The case is ongoing.

The DHS is still using at least three unpermitted wells for border wall construction.

"Every governor in America should be paying attention," added Lujan Grisham. "If the federal government can decide that states' laws don't apply whenever they become inconvenient, no state's laws are safe, on any issue, for any reason. Everyone-regardless of their political affiliation-should be appalled by this massive overreach by the federal government."