The New Mexico Court of Appeals on Oct. 18 issued an opinion affirming a lower court decision (GM Aug. 20, 2021; Dec. 31, 2020) that most of Intrepid Potash Inc.’s water rights to the Pecos River were either forfeited or abandoned before 2017.
While Intrepid had not returned calls at press time, it has previously said that the loss of the water rights would have no impact on its potash and Trio production and it can meet its other water sales obligations without the Pecos water.
The plaintiffs, Pecos Valley Artesian Conservancy District, the Carlsbad Irrigation District, and the Otis Mutual Domestic Water Consumers & Sewage Works Association, had argued that Intrepid water rights were forfeited years ago due to non-use and thereby abandoned. Initially procured for potash production, Intrepid more recently wanted to use the water to sell to the oil and gas industry. Intrepid had argued that any interruption in its use was brought on by drought and other conditions out of the company’s control.
Another plaintiff concern was the Pecos River Compact, an agreement between New Mexico and Texas that guarantees Texas will get its share of water from the river. Plaintiffs had argued that if Texas did not get its water, it could take a priority claim on New Mexico water users.
Intrepid had also argued that it had been granted water permits by the New Mexico Office of the State Engineer (OSE) in 2017 and 2018. Plaintiffs argued these were illegal since there were no public hearings prior to their issuance.