Homeland Security Secretary Markwayne Mullin has waived New Mexico's water code and two sets of state groundwater rules for the construction of barriers and roads along the state's border with Mexico. His determination appeared in the Federal Register on Friday and took effect the same day.
The order covers a project area in the Border Patrol's El Paso Sector that the notice traces from Border Monument 71 to Border Monument 1. Inside that area, the waiver reaches the drilling, construction, operation, repair and plugging of wells, along with staging areas, earthwork, roads, lighting, cameras and sensors. Besides the New Mexico Water Code, it sets aside the state engineer's general provisions on underground water and its rules for licensing well drillers and for building, repairing and plugging wells.
The waiver also extends to a 1952 federal statute under which the United States consents to be joined as a defendant in some suits to adjudicate or administer water rights. Once a party to such a suit, the federal government is deemed under that law to have given up any right to argue that state law does not apply to it.
Mullin's order arrives five weeks after New Mexico sued the United States in the state's Sixth Judicial District Court over wells drilled for the wall. The suit also names Barnard Construction Company of Bozeman, Montana, the prime contractor for that segment of the wall, and two drilling subcontractors, Wyatt Drilling Arizona and Cascade Drilling. The state alleges that contractors drilled wells without the state engineer's authorization at multiple sites in the Mimbres, Hachita and Lower Rio Grande underground water basins. It also alleges that a totalizing meter was improperly tampered with, which the state says can obscure how much water a well has diverted.
New Mexico wants the court to stop further drilling and pumping from the disputed wells, order them plugged and abandoned, and require an accounting and double repayment of the water taken. Newsweek reported that the complaint describes construction of nearly 180 miles of barriers in southern New Mexico. According to the magazine's account, the state says the federal government sought and received state permits for border wall wells from 2019 to 2025 before changing its position this year. The complaint also says Barnard withdrew permit applications filed in March after Customs and Border Protection told it to proceed without state approval.
Federal officials have argued that wells on federal property are exempt from state permitting requirements, according to the lawsuit. In April, CBP told the state engineer's office in a letter that the federal government is "immune" from the state law requiring a permit to pump groundwater, WBUR's Here & Now reported. The wells sit on federal land inside the Roosevelt Reservation, a 60-foot strip along the international boundary, and CBP has said crews need the water to build roads, mix cement and keep dust down.
After ranchers and state officials raised alarms this summer, CBP said it had told the contractor to pause the installation of any new groundwater wells. "CBP is committed to working collaboratively with local landowners to ensure that construction activities do not adversely impact their water needs," the agency said at the time. KOB 4 reported that ranchers who support the wall worried the drilling could affect the water supply for their cattle, and that ranchers have since filed complaints with the state engineer's office. The owner of Wyatt Drilling Arizona told Here & Now that he had been told the federal government could drill on the easement without state permission.
The suit noted CBP's directive but argued that federal officials had not formally committed to plugging existing wells, accounting for water already withdrawn or obtaining lawful sources of water for future construction, according to Newsweek.
Mullin's notice rests the waiver on border security. It says Border Patrol apprehended more than 1,248,000 people trying to enter the country illegally between border crossings in the El Paso Sector from fiscal 2021 through Aug. 30, 2026. Over the same period, the notice says, Border Patrol seized more than 3,450 pounds of methamphetamine and more than 285 pounds of fentanyl in the sector. "Since the President took office, DHS has delivered the most secure border in history. More can and must be done, however," Mullin wrote. He cited an "acute and immediate need" for more barriers and roads in the project area.
Mullin acted under Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The notice says that law lets the homeland security secretary waive all legal requirements that the secretary, in the secretary's sole discretion, determines necessary to ensure expeditious construction of barriers and roads. Mullin wrote that the new waiver does not revoke or supersede earlier ones and that he may issue more.
"Water is a precious resource in New Mexico, and the residents, ranchers, and farmers whose water is being stolen by the federal government deserve justice," Gov. Michelle Lujan Grisham said when the suit was filed. State Engineer Elizabeth K. Anderson said the state's permit procedures "exist to protect water rights holders." Friday's notice does not mention the lawsuit, and it does not say whether the waiver reaches drilling or pumping done before Friday.