Full opinion text
MEMORANDUM OPINION & ORDER JENKINS, Senior District Judge. TABLE OF CONTENTS I.FACTUAL BACKGROUND..1192 II.BRIEF STATEMENT OF THE CLAIMS . .1195 III. PROCEDURAL CONTEXT. ...,.1197 IV. ISSUES ADDRESSED AT THE PRETRIAL CONFERENCE.1200 A. The State’s Interest in Groundwater.1200 B. The State’s Interest in the Middle Rio Grande Basin Aquifer.1203 C. The Alleged Injury to the State’s Interest.:.1205 1. The Loss of Drinking Water Services .1205 a. The NMWQCC Regulations ..1205 b. The NMWQCC Regulations and Use of Groundwater .:. ■.1207 c. New Mexico Drinking Water Regulations .1208 d. Reconciling the EIB & NMWQCC Regulations.1208 e. NMAC § 20.7.10.1 & Loss of Drinking Water Services.1210 2. Plaintiffs’ Theory of Injury Revisited.1210 V.THE PLAINTIFFS’ THEORY OF DAMAGES.1212 A. Loss of “Extractive Services” & Loss of Value of in situ Groundwater...:.■..1213 1. Alleged Loss of “Extractive Services”.1213 2. Alleged Loss of Value of in situ Groundwater.1215 3. Different Labels, Same Injury.1216 B. Loss of Drinking Water Services v. Total Loss of All Beneficial Uses.... 1217 C. “Temporary” vs. “Permanent” Injury .1218 D. Summary.1222 VI. THE SCOPE AND LIMITS OF PLAINTIFFS’ STATE LAW CLAIMS.1222 A. The State’s Affected Interests...1223 B. Plaintiffs’ Current Pleadings.1223 C. Extrinsic Limitations on the Available Remedies.1224 1. CERCLA & Plaintiffs’ State Law Claims.1224 a. The CERCLA Savings Clauses.1225 b. Conflict Preemption.1225 2. The Hydrocarbon Remediation Agreements .1227 3. Schwartzman, Settlement and Release of the State’s Claims.1229 4. Avoidable Consequences & Plaintiffs’ Duty to Mitigate Damages.... 1230 D. Intrinsic Limitations on the Available Remedies .1231 1. Common Law Trespass.1231 a. Schwartzman and Physical Invasion of a Possessory Interest-1231 b. Common-Law Trespass & the State’s Interests in Public Water.1232 c. Trespass, Public Nuisance & Injury to Public Rights.1235 d. Plaintiffs’ Claims re: Injury to the Aquifer.1235 2. Common Law Public Nuisance.1235 a. Remedies for Common Law Public Nuisance .1237 b. Nuisance Damages & the “Special Injury” Requirement.1239 3. Statutory Public Nuisance (N.M. Stat. Ann. § 30-8-2 (Repl. 1994)) .1241 a. Availability of Damages for Statutory Public Nuisance.1242 b. Statutory Public Nuisance, NMED & the Doctrine of Primary Jurisdiction. 1244 4. Common Law Negligence.1244 a. Essential Elements.1245 b. The Duty Issue. 1245 c. Breach of the Duty of Care...1247 d. Causation in Fact & Proximate Cause .1247 e. Injury in Fact & Damages .1249 5. Summary re: Intrinsic Limitations.1250 E. The Measure of Damages Under New Mexico Law.1251 1. Diminution of Value & Loss of Use.1251 2. Cost of Restoration as a Measure of Damages.1252 3. Plaintiffs’ “Loss of Use” Damages Theory.1253 a. Loss of Use Damages & Replacement Cost .1253 b. Proof of “Loss of Use’VReplacement Cost Damages.1254 c. Alternative Measures & the “License to Pollute”.1255 4. Cost of Restoration v. Replacement Cost.1256 5. Injury and Remedy in Hazardous Waste Cases.1256 6. The State as Public Trust ee/Parens Patriae.1257 7. Cost of Restoration & the Constraints on Plaintiffs’ Claims.1258 F. The Measure of Damages in This Case. 1259 VII. SCOPE OF THE TRIAL ON INJURY AND DAMAGES 1 — ( CD (M r — t A. Summary Judgment & Genuine Issues for Trial .. y — I N r — I B. Genuine Issues Remaining for Trial. C\I ZD W t-H VIII. RULINGS ON PENDING MOTIONS .1263 XI. FINAL PRETRIAL CONFERENCE. .1265 I.FACTUAL BACKGROUND Abuquerque’s South Valley is located about 2.5 miles south of downtown Abu-querque, west of the Abuquerque International Airport around the intersections of Woodward Avenue with Broadway Avenue and Edmunds Street. The South Valley area has been the site of manufacturing operations since at least 1948, when the Eidal Manufacturing Company operated a welding plant on Broadway Avenue. In 1951, the Atomic Energy Commission, through American Car and Foundry (“ACF Industries”), took over the property, constructed plant facilities and engaged in machining of metal parts, plating, welding and other activities related to the manufacture of nuclear weapons components. This continued until 1967, when the United States Ar Force (USAF) assumed control over the property and converted the facility into an aircraft engine parts manufacturing plant, known as U.S. Air Force Plant 83 (“Plant 83.”), operated by General Electric Company under a series of facilities contracts and leases. In 1984, Plant 83 was sold to General Electric Aircraft Engines (GEAE) and remains in operation today as an aircraft engine parts manufacturing facility. Other industrial facilities have been located in South Valley as well, including petroleum product pipeline and bulk distribution facilities operated by Chevron, Texaco and others, and an industrial chemical distribution facility on Ed-munds Street owned and operated by Uni-var. In 1979, chemical analysis of samples collected from one of the City of Albuquerque’s municipal water supply wells, the San Jose 6 Well (“SJ-6”), located near the intersection of Woodward and Broadway Avenues in the South Valley, detected the presence of hazardous substances consisting of “volatile organic compounds” (“VOCs,” mainly halogenated solvents) and petroleum hydrocarbons. Samples then taken from two other municipal supply wells, the San Jose 3 (“SJ-3”) and Miles No. 1 Wells, were also found to be contaminated. In 1981, after further investigation and monitoring by the Environmental Improvement Division of the New Mexico Health and Environment Department, the San Jose 3 and San Jose 6 Wells were decommissioned due to the low-level VOC contamination problem. The contamination and subsequent shutdown of SJ-6 had a significant impact upon the production of the San Jose Well Field, raising concerns among Albuquerque city officials that fire-protection water supplies in particular would be inadequate to serve the needs of the South Valley area, particularly during very dry years. In light of these concerns, the New Mexico Environmental Improvement Division declared in June 1982 that the South Valley site was the State’s number one priority for environmental cleanup, and brought the groundwater contamination problem to the attention of the United States Environmental Protection Agency (EPA). Beginning in July 1982, the EPA proposed to list South Valley among the hazardous waste sites across the nation that needed remedial action. On August 9, 1983, the Director of the Environmental Improvement Division formally requested that EPA initiate remedial investigations and feasibility studies associated with the South Valley site, including the resolution of immediate water supply problems resulting from the shutdown of the contaminated SJ-6 well. On September 8, 1983, the EPA published a final rule listing the one-square-mile area of land surrounding the SJ-3 and SJ-6 wells on its National Priorities List pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”), Pub.L. 96-510, 94 Stat. 2767, codified at 42 U.S.C. §§ 9601 et seq. (2000), designating it as the South Valley NPL Site. See 48 Fed. Reg. 40,658 (September 8, 1983). The agency began the Remedial Investigation/Feasibility Study process at the South Valley Site, calling upon the Air Force and other potentially responsible parties at South Valley to conduct much of the investigative work. The EPA established as many as six “Operable Units” (OU) for remediation activities at the South Valley Site: OU1: Replacement of the water supply wells at SJ-3 and SJ-6 OU2: Plug and monitor wells at SJ-3 and SJ-6 OU3: Groundwater remediation at the Univar Edmunds Street facility OU4: Soil Remediation at the Univar Edmunds Street facility 0U5: Soil and shallow groundwater remediation at Plant 83/General Electric facility OU6: Deep aquifer ground water remediation at Plant 83/General Electric facility. (EPA Site Status Summary: South Valley New Mexico (NMD980745558), at 4-5 (rev. October 7, 2003), available at http:// www.epa.gov/earthlr6/6sf/pdffiles/south-val.pdf.) Remedial work soon commenced, beginning with Operable Unit # 1: the replacement of SJ-3 and SJ-6 was accomplished by the installation of a new replacement city water supply well, the Burton # 4 Well, in April of 1987. (Id. at 4.) Second phase remedial investigations were conducted at the Univar Edmunds Street Operable Units (# 3 & # 4) and the Plant 83/General Electric Operable Units (#5 & # 6). The investigation of the Uni-var Edmunds Street units led to the issuance of a Record of Decision on June 28, 1988, followed by the drafting and execution of a consent decree effective June 1, 1990, requiring the implementation of a groundwater extraction and treatment system. Installation of the system commenced in September of 1990; the system became operational in April 1992. (Id. at 3, 4.) Following public hearings and discussions with the State of New Mexico, the EPA issued its Record of Decision (ROD) concerning the Plant 83/General Electric Operable Units on September 30, 1988. Pursuant to the ROD, EPA issued a Unilateral Administrative Order to General Electric Company (“GE”) for performance of design and construction of a remediation system to treat the contaminated groundwater. GE responded in August 1989, agreeing to comply with the Order and perform the work. GE performed the Remedial Design/Remedial Action (RD/RA), implementing the extraction and treatment remedies called for by the Plant 83 ROD, pumping, treating and reinjecting both shallow aquifer and deep aquifer water beginning in May 1994 and April 1996, respectively. (Id. at 3, 5.) Having the opportunity to review and comment on the EPA’s proposed remedial scheme, the State of New Mexico, through the Environmental Improvement Division of the New Mexico Health and Environment Department, responded that “EID concurs with the remedy outlined in the draft Record of Decision for the GE/USAF Operable Unit ... While this remedy alone does not address all potential threats to public health at the San Jose site it is an important part of the overall strategy to do so.” (Plant 83 ROD, Attachment One (September 30,1988).) The New Mexico Environment Department (NMED) also undertook its own investigation of groundwater contamination due to hydrocarbons discharged from various petroleum facilities at South Valley. The NMED Ground Water Quality Bureau then negotiated Hydrocarbon Remediation Agreements (HRAs) with Chevron, ATA Pipeline, and Texaco in 1994, requiring the companies to treat the contaminated soil and groundwater underlying the South Valley Site using soil vapor extraction, free ' product recovery, and dissolved phase groundwater recovery systems. Groundwater remediation in the South Valley Operable Units continues today, with the EPA recently observing that the groundwater remedial systems at the South Valley Superfund Site have been very effective in recovering and treating over 2.3 billion gallons of water since the remedial systems went on-line. Almost the entire amount of this large volume of water has been returned to the aquifer from which it was extracted, allowing the groundwater to be returned back to its beneficial use. (EPA Site Status Summary: South Valley New Mexico (NMD980745558), at 6 (rev. October 7, 2003), available at http:// www.epa.gov/earthlr6/6sfipdffiles/south-val.pdf.) II. BRIEF STATEMENT OF THE CLAIMS Plaintiffs the State of New Mexico and the State of New Mexico ex rel. Patricia A. Madrid assert the State’s ownership of all waters in the State of New Mexico, including all groundwater underlying the South Valley Site. Plaintiffs assert that pursuant to the New Mexico Constitution and laws, the State holds that groundwater in trust for the purpose of making it available for appropriation by users who will put it to a beneficial use. Plaintiffs also assert par-ens patriae standing to protect the State’s sovereign interests together with interests which all of New Mexico’s citizens hold in common in protecting public waters against pollution. Originally, the plaintiffs pleaded damages claims under CERCLA as well as several state law tort theories, all arising from the persistent chemical contamination of portions of the groundwater underlying the South Valley Site allegedly resulting from the conduct of the named defendants. Plaintiffs voluntarily dismissed all damages claims arising under CERCLA in November of 2002, and now assert only New Mexico statutory and common-law claims. Plaintiffs allege that the chemical contamination at South Valley has rendered a significant volume of that groundwater — as much as 289,500 acre-feet — unavailable for appropriation to its highest and best use, viz., as drinking water for human consumption, and has thus injured the State’s interest as owner and trustee in making the water available for appropriation. Claiming a permanent loss, Plaintiffs seek an award of monetary damages to compensate the State of New Mexico for the value of the volume of contaminated groundwater thus rendered unavailable for appropriation, and damages for loss of use of that portion of the Middle Rio Grande Basin aquifer underlying the South Valley Site where the contaminated water may be found. Plaintiffs’ counsel submit that the proper measure of damages for this injury is the market value, with future losses adjusted to present value, of the volume of water affected by the contamination, together with the replacement cost of the storage capacity of the aquifer, which counsel also asserts to be permanently lost. The Defendants respond that the claims now asserted by the Plaintiffs constitute an impermissible challenge to the ongoing remediation activities at South Valley because any such challenge is barred by § 113(h) of CERCLA, 42 U.S.C. § 9613(h) (2000), which provides that no federal court “shall have jurisdiction ... to review any challenges to ... remedial action” under CERCLA, at least prior to the completion of the remediation. See, e.g., United States v. State of Colorado, 990 F.2d 1565, 1576 (10th Cir.1993) (“to the extent a state seeks to challenge a CERCLA response action, the plain language of § 9613(h) would limit a federal court’s jurisdiction to review such a challenge”), cert. denied, 510 U.S. 1092, 114 S.Ct. 922, 127 L.Ed.2d 216 (1994). Moreover, because the State of New Mexico has concurred with the EPA’s decisions concerning remedial action, or has itself approved remedial action pursuant to the Hydrocarbon Remediation Agreements, the Defendants assert that Plaintiffs are estopped from attacking the adequacy of the existing remediation. Cf. Tiberi v. Cigna Corp., 89 F.3d 1423, 1429 (10th Cir.1996) (equitable estoppel defined). The Defendants further contend that the Plaintiffs’ state law claims are pre-empted by federal law because “ ‘under the circumstances of this particular case,’ ” the New Mexico tort remedies “ ‘stand as an obstacle to the accomplishment of the full purposes and objectives of Congress’ ” in enacting CERCLA, Geier v. American Honda Motor Co., 529 U.S. 861, 873, 120 S.Ct. 1913, 146 L.Ed.2d 914 (2000) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)), particularly as implemented through the on-going remedial action overseen by the EPA. See, e.g., United States v. City and County of Denver, 100 F.3d 1509, 1512 (10th Cir.1996). Besides preemption, the Defendants also argue that the Plaintiffs’ state law claims are barred by res judicata as a result of Plaintiffs’ voluntary dismissal of their CERCLA claims in November 2002 because the CERCLA claims involved the same parties; they arise out of the same transaction or series of transactions; and their dismissal operates as a final judgment on the merits of those claims. See, e.g., Satsky v. Paramount Communications, 7 F.3d 1464, 1467-70 (10th Cir.1993); Clark v. Haas Group, Inc., 953 F.2d 1235, 1237, 1238-39 (10th Cir.1992) (the doctrine of res judicata prohibits a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit”; “even though one group of facts may give rise to different claims for relief upon different theories of recovery, there remains but a single cause of action”). To the extent that Plaintiffs have, pleaded any legally viable theory of liability, the Defendants further respond that the State of New Mexico has suffered no compensa-ble injury because no volume of groundwater has been lost to appropriation from the Middle Rio Grande Basin aquifer due to the contamination, including the groundwater beneath the South Valley Site. First, Defendants submit, the Middle Rio Grande Basin groundwater has 'already been fully appropriated, and none remains available for new appropriation whether it is contaminated or not. Moreover, the contamination has not prevented existing .water rights holders — primarily the City of Albuquerque — from exercising their rights to extract groundwater and apply it to beneficial uses. At most, the city was required to move a point of diversion away from the San Jose 6 Well. While “remediation is ongoing, the Middle Rio Grande Basin continues to provide all of the services it provided prior to the contamination: it receives recharge, stores water, and provides safe yield.” Finally, Defendants assert, all of the groundwater underlying the South Valley Site could be used to satisfy ’existing rights because either it currently meets drinking water standards or could be rendered potable‘through existing treatment methods. “Accordingly,” Defendants argue, “there is a complete failure of proof on the essential element of injury.” III. PROCEDURAL CONTEXT After three years of pleadings, amended pleadings, and extensive discovery and motion practice, this action was calendared for a Final Pretrial Conference beginning September 30 through October 4, 2002. In the initial five days of the Conference, court and counsel considered “the formulation and simplification of the issues, including the elimination of frivolous claims or defenses,” Fed.R.Civ.P. 16(c)(1), as well as the resolution of any remaining discovery disputes. (See Minute Entry, dated September 30-October 4, 2002 (dkt. no. 900), •passim.) The parties’ Proposed Joint Pre-Trial Order, received September 23, 2002, provided the working text for that effort; pending dispositive motions were also considered in the context of the Pretrial Conference, as this court had previously stated they would be. (Id.) As the Pretrial Conference progressed, the court made several rulings on substantive issues, denying summary judgment motions by Chevron Pipeline, Chevron USA, and Texaco entities raising the CERCLA statute of limitations (dkt. nos. 523, 582, 583), granting a motion by the Chevron/Texaco Defendants for summary judgment on plaintiffs’ lost tax revenues claim (dkt. no. 584), granting in part a motion by General Electric attacking plaintiffs’ “disamenity” damages theory (dkt. no. 631), and granting motions by ACF Industries and General Electric for summary judgment on Plaintiffs’ punitive damages claims (dkt. nos. 597, 631). (Id.) The court reserved on other motions, and made a preliminary determination concerning plaintiffs’ damages theories. (See Transcript of Hearing, dated October 3, 2002, at 736:22-737:2, 737:10-12, 738:3-5.) When the Pretrial Conference resumed on November 18, 2002, court and counsel addressed a number of motions dealing with trial, including motions in limine seeking to exclude testimony by various expert witnesses. (See Minute Entry, dated November 18-20, 2002 (dkt. no. 919), passim.) On November 20, based upon a stipulation by counsel for all parties, this court entered an order dismissing Plaintiffs’ CERCLA claims and the federal defendants from the action, all with prejudice. (Stipulation and Order of Dismissal, filed November 20, 2002 (dkt. no. 909).) The Pretrial Conference continued on January 16, 2003, with the court inquiring of counsel as to what remained. The court heard and considered the Plaintiffs’ motion to amend their complaint, filed November 14, 2002 (dkt. no. 887), and denied the same. (See Minute Entry, dated January 16-17, 2003 (dkt. no. 971), at 3.) The court also heard Plaintiffs’ motion for reconsideration of the court’s earlier ruling concerning punitive damages, which was taken under advisement. (Id.) Further argument was heard on the Defendants’ various motions for summary judgment on Plaintiffs’ damages claims. {Id. at 5.) The Pretrial Conference continued on February 4, 2003, resuming the colloquy concerning the Plaintiffs’ damages theories and the nature of the State’s interest in the groundwater in question; court and counsel addressed the question of the applicable legal standards defining the Plaintiffs’ claimed injury, and the court heard and considered several motions concerning expert testimony and motions in limine concerning specific evidence questions. {See Minute Entry, dated February 4-6, 2003 (dkt. no. 985), at 1-5.) Bifurcation of trial was also discussed. {Id. at 5-7.) On February 6, the court made a bench ruling concerning the legal standards defining Plaintiffs’ claimed injury, denying a request by Plaintiffs for certification of the question to the state courts. {Id. at 7-11.) A jury trial on damages issues was provisionally set for April, 2003, and the Pretrial Conference was continued until March. Other procedural matters arose, delaying the continued Pretrial Conference in this case until August of 2003. The conference resumed session on August 6, returning once again to the questions of Plaintiffs’ damages claims and the issues that genuinely remain to be resolved at trial. {See Minute Entry, dated August 6-8, 2003 (dkt. no. 1014), at 2-3.) The court also heard and considered Plaintiffs’ motion to substitute an expert witness and defendant GE’s motion for an evidentiary hearing concerning certain expert witnesses. {Id. at 4.) Court and counsel reviewed the parties’ proposed witness lists in some detail, received the parties’ exhibits as listed on the proposed exhibit lists, subject to particular motions to strike, and granted GE’s motion for an evidentiary hearing concerning expert witnesses under Fed.R.Evid. 702. {Id. at 5-6.) On August 8, the court set new dates for submission of revised witness and exhibit lists, calendared the Rule 702 evidentiary hearing for December 9, 2003, and deferred on setting a new trial date. {Id. at 7-8.) By subsequent Order, trial was provisionally set to begin February 9, 2004. {See Order, filed September 2, 2003 (dkt. no. 1015), at 4.) From December 9 through December 12,-2003, and continuing through January 7 and 8, 2004, the court heard testimony from the experts listed by counsel for the Rule 702 hearing, heard argument by counsel concerning experts and damages theories (as well as several recently filed motions), and took many of those matters under advisement. (See Minute Entry, dated December 9-12, 2008 (dkt. no. 1059), at 2-6; Minute Entry, dated January 7-8, 2004 (dkt. no. 1066); Transcript of Hearing, dated January 7, 2004, passim; Transcript of Hearing, dated January 8, 2004, passim.) The court vacated the provisional February 9, 2004 trial date, resetting the Final Pretrial Conference for that date, but on further consideration, vacated the February 9 setting altogether, deferring the calendaring of the Final Pretrial Conference and the first phase of trial pending further order of the court. (See Transcript of Hearing, dated January 8, 2004, at 4150:7-21 (The Court); Order, filed January 29, 2004 (dkt. no. 1063).) IV. ISSUES ADDRESSED AT THE PRETRIAL CONFERENCE Since commencing this action in October of 1999, the Plaintiffs have been creative in the number and kind of theories of liability they have pleaded and argued in this action. The Defendants in turn have proven resourceful in responding to the Plaintiffs’ claims, propounding an array of legal theories and factual assertions. By the time of the most recent hearing in January, the pleadings, motions and other papers filed in this action exceeded thirty-seven shelf feet of files in the Clerk’s Office, and more filings have since been received. Together the parties have raised a multitude of issues requiring distillation and refinement in the context of the Pretrial Conference. We began our continuing discussion of this case by considering a few fundamental questions, and we have returned to those questions again and again: (1) What is the nature of the State’s interest in the groundwater underlying the South Valley Site? (2) How has that interest been injured, and as measured by what standard? (3) What is the appropriate measure of damages to compensate that injury? A. The State’s Interest in Groundwater According to Plaintiffs, “all ground waters ... belong to the public and are natural resources ‘belonging to,’ ‘managed by,’ ‘held in trust by,’ and ‘controlled by’ the State of New Mexico.” (State of New Mexico’s Complaint in the Consolidated Case, filed July 31, 2001 (dkt. no. 367) (“Consolidated Complaint”), at 5 ¶ 13.) Plaintiffs’ counsel asserts that the State of New Mexico is the absolute owner of the groundwater, subject only to the rights of others under New Mexico law to seek to appropriate the water for a beneficial use, and to do so through an administrative process managed by the State Engineer. To define the legal interest of the State, we look first to the New Mexico Constitution: Art. XVI, Sec. 2 provides that unappropriated water in the State of New Mexico belongs to the public: “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.” The legislature echoes this language in New Mexico Statutes Ann. § 72-1-1 (Repl.1997): “All natural waters flowing in streams and watercourses, whether such be perennial, or torrential, within the limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use..,” In 1931, the Legislature explicitly extended this rule to much of New Mexico’s groundwater: “The water of underground streams, channels, arte-sian basins, reservoirs or lakes, having readily ascertainable boundaries, are hereby declared to be public waters and to belong to the public and to be subject to appropriation for beneficial use.” N.M. Stat. Ann. § 72-12-1 (Cum.Supp.2002). As the New Mexico Supreme Court has explained: All water within the state, whether above or beneath the surface of the ground belongs to the state, which authorizes its use, and there is no ownership in the corpus of the water but the use thereof may be acquired and the basis of such acquisition is beneficial use.... The state as owner of the water has the right to prescribe how it may be used.” State ex rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983, 987 (1957) (citations omitted). “Beneficial use is the basis, the measure and the limit to the right to the use of the waters” owned by the State, including its groundwater. N.M. Stat. Ann. § 72-1-2 (Repl.1997). Generally, individuals seeking to appropriate water ... are required to seek a permit from the state engineer. Id. Since 1931, the state engineer has declared individual groundwater basins throughout most of the state and has regulated appropriation of their waters. See NMSA 1978, §§ 72-12-18; see generally Charles T. DuMars, New Mexico Water Law: An Overview and Discussion of Current Issues, 22 Nat. Resources J. 1045 (1982). Elephant Butte Irr. Dist. v. Regents of New Mexico State University, 115 N.M. 229, 232-33, 849 P.2d 372, 375-76 (Ct.App.1993). See also N.M. Stat. Ann. § 72-12-2 (Cum.Supp.2002) (procedure for application for use of underground water). The State serves as the watermaster, the gatekeeper, the overseer of the process of appropriation for beneficial use. As counsel suggests, it acts as the trustee: it owns the resource, but holds it not for itself, but for the use and benefit of the public. The commodity it “owns,” it cannot sell, lease or give away; it can only make it available for use by others. See Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1133 (10th Cir.1981) (“The state controls the use of water because it does not part with ownership; it only allows a usufructuary right to water.”). If the State wishes to obtain a right to appropriate water to a beneficial use, like everyone else it must make application to the State Engineer: Any person, association or corporation, public or private, the State of New Mexico, or the United States of America ... hereafter intending to acquire the right to the beneficial use of any waters, shall, before commencing any construction for such purposes, make an application to the state engineer for a permit to appropriate.... N.M. Stat. Ann. § 72-5-1 (Repl.1997) (emphasis added). In this case, the Plaintiffs allege an injury to the State’s interest as trustee, and not as an owner or holder of water rights, or as a beneficial user of water. Plaintiffs are not here as appropriators or users of water; nor are they here on behalf of other water rights holders or water users. The entity that once diverted groundwater from South Valley wells to beneficial use— the City of Albuquerque — is not here. The city’s right to appropriate groundwater has been satisfied by changing the point of diversion to another well (the Burton #4 Well) that pumps groundwater from the same aquifer, and the city asserts no claim for damages in this action. B. The State’s Interest in the Middle Rio Grande Basin Aquifer The Plaintiffs also claim an injury to the aquifer underlying the South Valley Site, separate and apart from the alleged injury to the groundwater located there: “Experts ... agree that the aquifer, as a storage medium, is a natural resource that has economic value and can be injured through contamination by various hazardous substances.” In contrast to the state’s water resources, however, the New Mexico Constitution and statutes do not speak of permanent State ownership or trusteeship of all of the soils, clay, sand, gravel, rocks and minerals within the state — the geological constituents of which any aquifer is comprised. Indeed, there appears to be very little beyond the New Mexico Enabling Act’s requirement that “no sale or other disposal [of state land or its natural productions] shall be made for a consideration less than the [appraised true] value.” ,Act of June 20, 1910, ch. 310, § 10, 36 Stat. 557, 564. The New Mexico Supreme Court has observed that “[t]he State has a nondelegable duty to hold as trustee state lands and their products — as well as the proceeds from the sale of state lands and their products — for the development of state schools and other public institutions. See N.M. Const. art. XXIV, § 1.” Bogle Farms, Inc. v. Baca, 122 N.M. 422, 429, 925 P.2d 1184, 1191 (1996). However this trust duty extends- to lands — particularly school trust lands — owned by the State that may ultimately be sold and conveyed to others. Whether the State has retained an ownership or trust interest in the minerals, including sand and gravel, underlying parcels of state land that have been sold and conveyed to others is a fact-specific determination under New Mexico law, and is not determined by a blanket state property law rule. Id., 122 N.M. at 433, 925 P.2d at 1194 (“whether sand and gravel are ‘minerals’ as that term is used in general mineral reservations is to be answered on a case-by-case basis by examining the intent of the parties”). Similarly, sand, gravel and other geological constituents of an aquifer may or may not have been reserved to the United States in lands- otherwise patented in fee simple to landowners in New Mexico. See, e.g., Watt v. Western Nuclear, Inc., 462 U.S. 36, 103 S.Ct. 2218, 76 L.Ed.2d 400 (1983) (gravel is a “mineral” reserved to the United States in lands patented under the Stock-Raising Homestead Act); but cf. Andrus v. Charlestone Stone Products Co., Inc., 436 U.S. 604, 98 S.Ct. 2002, 56 L.Ed.2d 570 (1978) (“common varieties” of sand and gravel excluded from “valuable minerals” under federal mining statute). In the extensive briefing on their damages claims, Plaintiffs cite no statutory or case authority that directly supports their assertion that the State of New Mexico owns the Middle Rio Grande Basin aquifer as a “natural resource” in the same sense that it “owns” the public’s water. Nor have Plaintiffs cited to any cases in which damages have actually been awarded for injury to the aquifer itself. Prior reported cases from other jurisdictions do not appear to distinguish between pollution of an aquifer and the contamination of the groundwater found in the aquifer, and the injury has been measured in terms of lost use of groundwater. See, e.g., Miller v. Cudahy Co., 858 F.2d 1449, 1456-57(10th Cir.1988); Artesian Water Company v. Government of New Castle County, 851 F.2d 643, 650 (3d Cir.1988). Similarly, unless the State claims some proprietary interest in the land or the aquifer’s subsurface geologic materials as a landowner or title holder, then it would seem that chemical contamination of those geologic materials impacts the State’s interest in groundwater only when it results in further groundwater contamination. Current landowners may have a claim under CERCLA and state tort law for soil pollution as against the parties responsible for that contamination, e.g., Nielsen v. Sioux Tools, Inc., 870 F.Supp. 435 (D.Conn.1994), but whether the State of New Mexico is a current landowner at South Valley has not been pleaded or proven in this case. Plaintiffs’ Consolidated Complaint makes no reference to the tract book in pleading the State’s interest in the aquifer beneath the South Valley Site. In Defendant ACF Industries, Inc.’s Motion for Summary Judgment on Plaintiffs’ Nuisance Claims and Brief in Support of the Motion, filed July 10, 2002 (dkt. no. 606), the statement of “Undisputed Material Facts” avers that “[t]he Site and lands adjacent to the Site are under private ownership and the State owns no land within the geographic proximity of the Site,” and that “[t]he State has no possessory interest in the soil near the Site or in any soil alleged to have been contaminated by ACF.” (Id. at 2 ¶2.) Likewise, Chevron/Texaco set forth as undisputed the averments that “[t]he Site and lands adjacent to the Site are under private ownership and Plaintiffs own no land within the geographic proximity of the Site,” and that “Plaintiffs have no possessory interest in ... any soil alleged to have been contaminated by Chevron, Texaco,” and others. ( [Chevron/Texaco] Motion and Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Public Nuisance Claims, filed July 10, 2002 (dkt. no. 646), at 3 ¶ 2.) Plaintiffs’ Response to the Petroleum Pipeline Defendants’ Motion for Summary-Judgment on Public Nuisance Claims, filed September 3, 2002 (dkt. no. 735), argues that “[ojwnership of the surface property is not relevant to the State’s claims for nuisance; the State possesses], owns and holds in trust the water on and beneath the surface. It possesses] the State’s natural resources. Such possessory interest is a matter of law, not an issue- of fact.” Plaintiffs’ Response to ACF Industries’ Motion for Summary Judgment on Public Nuisance Claims, filed August 30, 2002 (dkt. no. 721), does not controvert ACF’s assertions concerning ownership at all. Absent proof of some possessory ownership interest in land at the South Valley Site — title to the surface or subsurface estate, a reservation of minerals, or the like — the State has no legally cognizable interest in the aquifer beneath the South Valley Site. Plaintiffs thus have no legal footing for their damages claim based upon injury to the aquifer itself. C. The Alleged Injury to the State’s Interest Plaintiffs assert that the groundwater underlying the South Valley Site, and a portion of the larger aquifer in which it is found, have been injured through contamination by a list of organic chemicals, and that the ongoing remediation activities conducted pursuant to CERCLA and the State’s own Hydrocarbon Remediation Agreements will neither restore the contaminated groundwater to its pristine, pre-contaminated “baseline” condition, nor restore it to a condition suitable for use as drinking water: “The STATE OF NEW MEXICO has been prevented from allowing- its citizens the benefit of this natural resource. Further, even after .said remediation, the natural resource -will remain in an impaired state, unusable and/or nonpo-table, and unfit for human consumption.” (Consolidated Complaint at 14-¶ 44.) 1. The Loss of Drinking Water Services .Given Plaintiffs’ assertion of the loss of use of groundwater for drinking water purposes as their claimed injury to the State’s interests in this case, the court’s inquiry at pretrial was simply this: under New Mexico law, what is the proper legal standard to apply in determining whether drinking water services have been lost? a. The NMWQCC Regulations Plaintiffs point to New Mexico Water Quality Control Commission (NMWQCC) regulations found in Title 20, Chapter 6, Part 2 of the New Mexico Administrative Code, NMAC §§ 20.6.2.3101 et seq. and 20.6.2.4101. et seq., as being applicable to the question of use. NMAC § 20.6.2.3101 et seq. governs “discharges onto or below the surface of the ground,” with the goal of protecting the quality of New Mexico groundwater for future use while still allowing discharge of contaminants and “degradation of the ground water up to the limit of’ the levels set by that Part’s ground water standards in NMAC § 20.6.2.3103. NMAC § 20.6.2.3101(A), (B). Both the New Mexico Water Quality Act and these NMWQCC regulations promulgated under the Act seek to protect the quality of New Mexico’s surface and groundwater primarily through the administration of a system of discharge permits. See N.M. Stat. Ann. § 74-6-5 (discharge permits); § 74-6-5.1 (disclosure statements by permit applicants); § 74-6-10 (enforcement & compliance orders); §§ 74-6-10.1, 74-6-10.2 (civil & criminal penalties). Like its federal counterpart, the New Mexico Water Quality Act seeks to maintain and improve water quality by addressing water pollution at its source: those who discharge contaminants into the State’s waters. The NMWQCC regulations issued pursuant to that Act serve to detail the discharge permit process. See NMAC § 20.6.2.3104 (permit requirement); NMAC §§ 20.6.2.3103-20.6.2.3113 (permit procedure); NMAC § 20.6.2.3114 (schedule of fees for discharge permits). Where a serious contamination problem already exists, the abatement process contemplated by the Water Quality Act and detailed in the NMWQCC regulations seeks to remediate the problem, placing much of the burden of restoring water quality upon the “responsible persons,” who must formulate and carry out an NMED-approved abatement plan. NMAC § 20.6.2.4103 (abatement standards & requirements); §§ 20.6.2.4104, 20.6.2.4106 (abatement plans); §§ 20.6.2.4108-20.6.2.4109 (public notice & agency approval). Abatement of water pollution is not complete until “the standards and requirements set forth in Section 20.6.2.4103 NMAC are met.” NMAC § 20.6.2.4112 (completion). NMAC §§ 20.6.2.4101 et seq. governs administrative abatement plans and proceedings conducted by the New Mexico Environment Department (NMED), again with the goal of protecting present and future use of the water for domestic and agricultural purposes by cleaning up serious contamination problems where they exist. NMAC § 20.6.2.4101(A), (B); see NMAC § 20.6.2.4103 (abatement standards). Both of these NMWQCC regulations prove wholly consistent with the power and duty of the NMWQCC under the New Mexico Water Quality Act to “adopt, promulgate and publish regulations to prevent or abate water pollution in the state or in any specific geographic area, aquifer, watershed of the state,” and to “adopt water quality standards for surface and ground waters of the state” that “shall include ... the designated uses of the waters and the water quality criteria necessary to protect such uses.” N.M. Stat. Ann. § 74-6-4(C), (D) (Supp.2002) (emphasis added). But do either of these NMWQCC regulatory schemes limit the actual use of contaminated groundwater? b. The NMWQCC Regulations and Use of Groundwater NMAC § 20.6.2.3101(C) expressly states: “The standards are not intended as maximum ranges and concentrations for use, and nothing herein contained shall be construed as limiting the use of waters containing higher ranges and concentrations.” Likewise, NMAC § 20.6.2.4101(C) expressly states: “The standards and requirements set forth in Section 20.6.2.4103 NMAC are not intended as maximum ranges and concentrations for use, and nothing herein contained shall be con.strued as limiting the use of waters containing higher .ranges and concentrations.” The language of NMAC §§ 20.6.2.3101(C) and 20.6.2.4101(C) clearly expresses the intent that these regulations not be construed “as limiting the use of waters containing higher ranges and concentrations” of contaminants than the water quality standards set forth in those regulations. Based upon their plain meaning, these regulations do not govern whether a given volume of groundwater may actually be appropriated and used as drinking water. Generally, in the New Mexico courts, the “plain language of a statute is the primary indicator of legislative intent.” General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985). The courts “ ‘will not read into a statute or ordinance language which is not there, particularly if it makes sense as written.’ ” Smith v. Board of County Com’rs, 134 N.M. 737, 741, 82 P.3d 547, 551 (Ct.App.2003) (quoting Burroughs v. Bd. of County Comm’rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975)); Amoco Production Co. v. New Mexico Taxation and Revenue Dept., 134 N.M. 162, 74 P.3d 96, (Ct.App.2003) (“The courts are to ‘give the words used in the statute their ordinary meaning unless the legislature indicates a different intent.’ State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988).”) These rules of construction inform this court’s reading of the New Mexico regulations at issue. See, e.g., Johnson v. N.M. Oil Conservation Comm’n, 127 N.M. 120, 978 P.2d 327 (1999) (holding that canons of construction that apply to statutes also apply to interpretation of agency rules and regulations). Plaintiffs’ counsel, on the other hand, insists that these regulations set drinking water standards and that “use” in NMAC §§ 20.6.2.3101(C) and 20.6.2.4101(C) must refer to uses other than as drinking water. (See Transcript of Hearing, dated January 8, 2004, at 4142:17-4143:12 (Mr. Lewis).) Nothing in the text of these regulations supports such a limiting construction of “use.” Counsel cites no New Mexico case law on point, and has not proffered any long-standing administrative construction of these provisions by the agency charged with administering them that supports Plaintiffs’ reading. (See also Transcript of Hearing, dated February 5, 2003, at 1800:4-1808:8, 1872:15-1873:12 (Mr. Garber).) c. New Mexico Drinking Water Regulations The Defendants respond that regulations setting standards for the use of New Mexico’s water for its “highest and best use” — as drinking water — are found elsewhere, and reflect the State’s adoption of federal drinking water standards, at least as to water supplied through public water systems. See NMAC § 20.7.10.100. These New Mexico Environmental Improvement Board (EIB) regulations were promulgated pursuant to provisions of New Mexico’s Environment Improvement Act, N.M. Stat. Ann. §§ 74-1-8 and 74-1-13.1 (Repl.2000 & Supp.2002), and expressly adopt and incorporate by reference the safe drinking water standards promulgated by the Environmental Protection Agency (EPA) in 40 C.F.R. Part 141 (2002) (National Primary Drinking Water Regulations), including the EPA’s Maximum Contaminant Level (MCL) standards. d. Reconciling the EIB & NMWQCC Regulations Plaintiffs’ counsel attempts to read the NMAC §§ 20.6.2.3103 and 20.6.2.4103 standards into these drinking water regulations, pointing to language providing that “[cjompliance with this Part does not relieve a person from the obligation to comply with other applicable state and federal regulations.” NMAC § 20.7.10.703. Of course, no one would suggest that a public water system would be permitted to discharge contaminants into groundwater in excess of the standards set by NMAC § 20.6.2.3103, or would be exempt as a responsible person from abatement proceedings under NMAC § 20.6.2.4101 et seq. But the obligation of a public water system to comply with NMAC § 20.6.2.3101 et seq. as to discharges or NMAC § 20.6.2.4101 et seq. as to abatement does not transmute those regulations into standards governing the supply of water through public water systems for use as drinking water. NMAC § 20.7.10.300(A) declares that “[n]o public water system shall supply drinking water to the public unless the system is operated and maintained in compliance with this Part,” not with NMAC §§ 20.6.2.3103 and 20.6.2.4103. NMAC § 20.7.10.300(B)(2) empowers the Secretary of the New Mexico Environment Department (NMED) to require treatment of drinking water to meet the EPA’s MCL standards, not the NMAC §§ 20.6.2.3103 and 20.6.2.4103 standards. In contrast to its adoption of the EPA standards, Title 20, Chapter 7, Part 10, NMAC does not explicitly adopt .or incorporate the NMAC §§ 20.6.2.3103 and 20.6.2.4103 standards as compliance standards governing use, or indeed, make any reference to them at all. If in fact the State of New Mexico intended the NMAC §§ 20.6.2.3103 and 20.6.2.4103 standards to govern the “highest and best use” of groundwater as drinking water, it would seem logical that the State would say so somewhere in the New Mexico Administrative Code, but to date it has not. This reflects the legislature’s deliberate division of power and authority over water quality issues between different state agencies. The New Mexico Environmental Improvement Act, N.M. Stat. Ann. §§ 74-1-1 (Repl.2000) creates the New Mexico Environmental Improvement Board (EIB), making it “responsible for environmental management and consumer protection” and empowering it to “promulgate rules and standards in the following areas: (1) food protection; (2) water supply, including ... rules authorizing imposition of administrative penalties for enforcement; ...” N.M. Stat. Ann. § 74-l-8(A)(l), (2) (Repl.2000) (emphasis added). The New Mexico Water Quality Act, N.M. Stat. Ann. §§ 74-6-1 et seq. (Repl. 2000), on the other hand, created the New Mexico Water Quality Control Commission (NMWQCC), empowering it to “adopt water quality standards for surface and ground waters of the state subject to the Water Quality Act,” and to “adopt, promulgate and publish regulations to prevent or abate water pollution in the state.... ” N.M. Stat. Ann. § 74-6-4(C), (D) (Cum. Supp.2002) (emphasis added). NMWQCC thus has been delegated the responsibility to address water pollution problems through its detailed system of discharge permits and through administrative abatement of existing pollution hazards, while the EIB remains vested with responsibility for day-to-day consumer protection and water supply and use issues. e. NMAC § 20.7.10.1 & Loss of Drinking Water Services The plain language of NMAC §§ 20.7.10.1 et seq. states that public water systems may lawfully supply drinking water that meets the EPA’s MCL standards as expressly adopted by the State of New Mexico. It follows that groundwater that meets those same standards has not been lost to use as drinking water. Water in which the contaminant level exceeds New Mexico’s MCL standards, on the other hand, cannot be supplied as drinking water in compliance with NMAC §§ 20.7.10.1 et seq., with a resulting loss of drinking water services as to that water. Remembering that the San Jose well field supplied South Valley groundwater to a public water system serving the City of Albuquerque, it is this New Mexico drinking water standard, NMAC §§ 20.7.10.100, that the court earlier concluded should be applied to determine whether there has been a loss of drinking water services involving the groundwater underlying the South Valley Site. 2. Plaintiffs’ Theory of Injury Revisited According to Plaintiffs’ counsel, “the State of New Mexico adamantly believes that this Court is in error in defining ‘injury’ in such a limited and arbitrary fashion.” (Plaintiffs Further Response to General Electric Company’s Supplemental Brief in Support of its Motion for Summary Judgment on Plaintiffs Damage Claims,” filed December 29, 2003 (dkt. no. 1043), at 10.) Yet the “injury” alleged in this case — as defined by Plaintiffs — is the loss of drinking water services due to chemical contamination. How else should that injury be measured? Arguing that a common law claim for damages “is not hand-cuffed to only one standard,” Plaintiffs contend that “standards promulgated by an administrative agency do not dictate, as a matter of law, whether a cause of action exists or the nature and extent of the injury.” (Plaintiffs Reply to the Court’s Ruling on “Injury” and Request for Reconsideration or Certification of the Question to the New Mexico Supreme Court, filed January 5, 2004 (dkt. no. 1049), at 6, 9 (emphasis in original).) Instead, Plaintiffs now assert, the groundwater “must still be considered ‘injured’ unless and until it is restored to its pre-polluted condition and fully complies with ALL human health standards which are applicable to water intended for public consumption.” (Id. at 4 (emphasis in original).) In effect, then, Plaintiffs now argue two different theories of injury: (1) that “[t]he standard for drinking water quality for the groundwater involved in this lawsuit is the more stringent NMWQCC health-based toxic pollutant standard”; and (2) that “the groundwater and aquifer will remain injured unless and until it is restored to its pre-contaminated condition.” These two assertions, often made together, are not wholly congruent. In this case, it may well be that the State of New Mexico has suffered an injury to its interest in the groundwater underlying the South Valley Site, notwithstanding the fact that much of the groundwater meets the New Mexico drinking water standards, but it may be that the injury is not the total and permanent loss of drinking water services that Plaintiffs now assert. To date, however, Plaintiffs have proffered no significant probative evidence of any diminution in value of the groundwater, measured by the difference between its current condition and its formerly pristine state, apart from the alleged loss of drinking water services. No expert witness has testified as to the economic value of water that may prove to be drinkable, but still not pristine. Plaintiffs may be hoping to argue to a jury that any diminishment of groundwater quality has resulted in the permanent and total loss of the value of the affected volume of groundwater. Indeed, Plaintiffs’ experts have formulated opinions on damages based upon the assumption that South Valley groundwater has been permanently lost to all beneficial uses, including use as drinking water. Under New Mexico law, however, water need not be pristine to be drinkable, and use for drinking water purposes depends upon whether applicable water quality standards .are met, not whether the water yet remains in its primordial state, untouched by any of the chemical remnants of the modern age. As this court explained a year ago, Plaintiffs’ own characterization of their alleged injury selects the legal standard to be applied to measure the existence and extent of that injury. Drinkability does not equate with pristine purity under New Mexico law, and the court remains convinced that a loss of drinking water services must be measured by applying New Mexico drinking water standards. V. THE PLAINTIFFS’ THEORY OF DAMAGES Plaintiffs assert that the State has been deprived of the opportunity to make contaminant-free water available to others, to offer the opportunity for others to appropriate water in pristine condition, and to put it to its “highest and best use” as drinking water. They allege that an identifiable, quantifiable volume of groundwater has been lost to use as drinking water, and therefore has been permanently lost to any beneficial use. They claim that the State has lost both the economic value that the affected water would have were it otherwise to be extracted from the ground and put to beneficial use, and the in situ value of that water as it yet remains in the ground. They insist that the State should be compensated in money damages for the total value of the volume of water in question, measured by its replacement cost based upon purchase .or lease of existing water rights at market value, and the value of the “loss of the aquifer apart from market value of the quantity of water,” State of Utah v. Kennecott Corp., 801 F.Supp. 553, 566-67 (D.Utah 1992), ostensibly measured by the cost of replacing it through construction and maintenance of a large surface reservoir. Plaintiffs’ groundwater damages theory depends upon three critical assumptions: (1) that the volume of water affected by the contamination could otherwise be made available for appropriation from the Middle Rio Grande Basin aquifer, but for the contamination; (2) that the volume of water has been lost to all beneficial uses; and (3) that the loss of use is permanent. In responding to the Defendants’ motions for summary judgment, and in proffers of proof made during the course of our extended Pretrial Conference and Rule 702 evidentiary hearing, the Plaintiffs have failed to come forward with significant probative evidence validating these assumptions, or showing that they raise a genuine issue of material fact requiring a trial. See Fed.R.Civ.P. 56(e). A. Loss of “Extractive Services” & Loss of Value of in situ Groundwater 1. Alleged Loss of “Extractive Services” Plaintiffs’ counsel argue that it is undisputed that “a volume of groundwater was taken out of service in 1980” and “has remained out of service up to the present date, and will continue to remain out of service for the foreseeable future.” They point to a loss of services that “ ‘began in the fall of 1980 with the shut-down of San Jose 6,’ ” and, at times, equate the San Jose well field’s “loss of capacity to provide a volume of water to the public on and after the closure of municipal well S J-6” with the continuing loss of groundwater services they now assert. Defendants respond that the loss of pumping capacity at the San Jose 6 Well does not equate with a loss of extractive groundwater services, unless the Plaintiffs can show that the total volume of groundwater that may safely be extracted from the Middle Rio Grande Basin aquifer without depletion, violation of the Rio Grande Compact, or other adverse effects — the aquifer’s “safe yield” — has actually been reduced. The State of New Mexico has lost nothing in terms of use, Defendants maintain, if the State may make the same total quantity of groundwater available from the same aquifer for use by appropriators, regardless of whether a particular volume of water underlying South Valley may now be extracted or not. A change in the point of diversion, by itself, is not a loss of use. The Defendants’ assertion that the Middle Rio Grande Basin aquifer was and is already fully appropriated, leaving the State unable to make additional water available for appropriation, appears to be correct, as confirmed by the following colloquy: THE COURT: Have all of the water resources in the South Valley been fully appropriated? MR. LEWIS: I believe they are fully appropriated, yes.... (Transcript, of Hearing, dated January 17, 2003, at 1544:12-15.) Moreover, as noted above, in the Silvery Minnow litigation, the Plaintiffs apparently have taken the position that “ ‘the waters of the Rio Grande basin have been fully appropriated and no additional water is available for any purpose.’ ” (Proposed Joint Pre-Trial Order, received July 29, 2003, at LI-23 (quoting Response of State of New Mexico to Plaintiffs Motion for Preliminary Injunction at 10, Rio Grande Silvery Minnow v. Martinez, Civil No. 99-1320-JP (D.N.M. filed July 7, 2000)).) Plaintiffs do not assert that the State of New Mexico has lost the use of water to which it holds a water right. Nor have Plaintiffs shown that any other water rights holder has lost the use of a specific volume of water from the Middle Rio Grande Basin aquifer to which he or she would otherwise be entitled. Nor, for that matter, have Plaintiffs shown that applications for extraction of any significant volume of South Valley groundwater have actually been made and denied because of the contamination issue - — or that any such applications are currently pending. To this extent, at least, Plaintiffs’ loss of “extractive services” claim may simply be premature, or even speculative. The Defendants submit that any current restrictions imposed by the State Engineer on further appropriations from the Middle Rio Grande Basin are driven by other considerations involving the State’s obligations under the Rio Grande Compact and the corresponding need to maintain stream flows in the Rio Grande River, and that those restrictions effectively limit extractive services to appropriation under existing water rights. Plaintiffs respond that “[t]he State Engineer’s Office does not have responsibility for environmental compliance or the expertise to evaluate health and safety issues relating to remediation at the Site,” but that the Office “is prepared to further restrict access to groundwater in South Valley based on the additional information and uncertainties affecting the Site.” If because of the contamination at South Valley, the State Engineer has in fact restricted further appropriation from the Middle Rio Grande Basin aquifer (a restriction on quantity rather than the depth and design of new wells), nothing that Plaintiffs point to in this record has yet made that restriction explicit. Absent significant probative evidence of an actual loss of extractive services involving a volume of unappropriated groundwater that the State could otherwise have made available for appropriation from the aquifer’s safe yield, Plaintiffs claim for damages resulting from such a loss must fail. 2. Alleged Loss of Value of in situ Groundwater Plaintiffs insist that the State has also lost the in situ value of the groundwater beneath South Valley as “stock,” or “drought reserve,” even if the water is not currently available for extraction by appropriators for reasons other than the comtamination: “In order to fully compensate the State of New Mexico for the groundwater lost due to the Defendants’ operations, it is appropriate to analyze that loss in terms of the loss of annual safe yield and the loss of the ‘stock- of groundwater as a drought reserve.” (Proposed Joint Pre-Trial Order, received July 29, 2003, at LI-45; see id. at LI-28 (“ ‘As distinct from the annual flow of sustained yield, the highest value of the remaining stock of groundwater is as insurance against potential future extended drought conditions, i.e., its in situ services.’ ” (quoting Dr. Ted Tomasi)).) Defendants respond that the ongoing remediation activities are eliminating the chemical contamination problem, and that even if the State or its water users needed to draw upon additional groundwater in times of severe drought, they could do so at South Valley by applying wellhead treatment