http://disqus.com/people/a7c6948ebf9fcd875de4a76a2b907d5c/enTue, 19 Aug 2008 05:20:25 -0000http://nmindependent.disqus.com/the_risks_and_rewards_of_desalination/#comment-2352479Mr. Frederick,<br><br>I understand your view that the burden of proof would be on the applicant in a normal water appropriation of waters that fall under the SE's jurisdiction. However, this is a different situation, I believe that you are relying on the fact that this water would be a public water under 72-12-1 and Spencer v. Bliss, In re Houston, in which the burden on the applicant to show no impairment. In contrast, these deep non-potable are excepted from consideration as waters subject to application by 72-12-25. Therefore, the only recourse for either a private party or the SE aggrieved by the pumping of deep non-potable water is to file a lawsuit in district court under 72-12-28. Remember there is no application process for these waters, therefore no hearing or determination by the SE, there is only a Notice of Intent by the taking party. So the burden of proof actually falls on the moving party of the lawsuit (whether that is the state or private) to make a prima facie case of harm.<br><br>And actually aquifer is a fairly certain term. There is not really any reason to hash the definition of aquifer, which remains in both the legal and geologic sense fairly certain. The more pressing question is whether or not these aquifers or underground basins in the legal sense rise above 2500 feet or if they are hydrologically connected to an overlaying aquifer such that appropriation might lead to impairment. I don't know that we need to give the SE anymore leeway to define terms as expansively as he can to exert his control. But that becomes a political argument about the powers of the executive versus the legislature or the judiciary.<br><br>My understanding of history is also that it was Reynolds' view that if the aquifer goes above 2500 feet that it falls under the SE's jurisdiction, but again we are back to the argument of burden of proof.<br><br>I agree that some determination of how to handle this loophole should be address and the SE should closely examine the hyrologic conditions surrounding these wells.<br><br>As to the feasibility of the projects well that remains to be seen, 500 million raised for a desal plant seems like a stretch for most investors to get behind but that also remains to be seen.<br><br>Finally, it seems illogical to pursue such an expensive alternative when by the SE's own admission (last week on the radio) we allowing 400,000 acre feet to evaporate largely due to reservoir storage. JMNLO (Just my non-legal opinion)<br><br>A. Blair Dunn<br>WaterBank<br>Chief Legal Officerh2olawMon, 18 Aug 2008 14:06:47 -0000http://nmindependent.disqus.com/the_risks_and_rewards_of_desalination_75/#comment-2502309Mr. Frederick,<br><br>I understand your view that the burden of proof would be on the applicant in a normal water appropriation of waters that fall under the SE's jurisdiction. However, this is a different situation, I believe that you are relying on the fact that this water would be a public water under 72-12-1 and Spencer v. Bliss, In re Houston, in which the burden on the applicant to show no impairment. In contrast, these deep non-potable are excepted from consideration as waters subject to application by 72-12-25. Therefore, the only recourse for either a private party or the SE aggrieved by the pumping of deep non-potable water is to file a lawsuit in district court under 72-12-28. Remember there is no application process for these waters, therefore no hearing or determination by the SE, there is only a Notice of Intent by the taking party. So the burden of proof actually falls on the moving party of the lawsuit (whether that is the state or private) to make a prima facie case of harm.<br><br>And actually aquifer is a fairly certain term. There is not really any reason to hash the definition of aquifer, which remains in both the legal and geologic sense fairly certain. The more pressing question is whether or not these aquifers or underground basins in the legal sense rise above 2500 feet or if they are hydrologically connected to an overlaying aquifer such that appropriation might lead to impairment. I don't know that we need to give the SE anymore leeway to define terms as expansively as he can to exert his control. But that becomes a political argument about the powers of the executive versus the legislature or the judiciary.<br><br>My understanding of history is also that it was Reynolds' view that if the aquifer goes above 2500 feet that it falls under the SE's jurisdiction, but again we are back to the argument of burden of proof.<br><br>I agree that some determination of how to handle this loophole should be address and the SE should closely examine the hyrologic conditions surrounding these wells.<br><br>As to the feasibility of the projects well that remains to be seen, 500 million raised for a desal plant seems like a stretch for most investors to get behind but that also remains to be seen.<br><br>Finally, it seems illogical to pursue such an expensive alternative when by the SE's own admission (last week on the radio) we allowing 400,000 acre feet to evaporate largely due to reservoir storage. JMNLO (Just my non-legal opinion)<br><br>A. Blair Dunn<br>WaterBank<br>Chief Legal Officerh2olawMon, 18 Aug 2008 14:06:47 -0000http://nmindependent.disqus.com/the_risks_and_rewards_of_desalination/#comment-2352477Thats wonderful that you agree with him. It doesn't change the law.h2olawTue, 19 Aug 2008 05:20:25 -0000http://nmindependent.disqus.com/the_risks_and_rewards_of_desalination_75/#comment-2502307Thats wonderful that you agree with him. It doesn't change the law.h2olawTue, 19 Aug 2008 05:20:25 -0000