Well, Well

What the state Supreme Court's new water-rights ruling means for New Mexicans

For years, Horace Bounds worried that his water would run dry.

Bounds is what's known as a senior water user: His family has had rights to use water in southwestern New Mexico's Mimbres River basin since 1869. But in the past few decades, as the population grew, more people wanted water. And under the state law governing domestic wells, the Office of the State Engineer, which manages New Mexico's water, had to grant those permits—even though water was already scarce.

Domestic wells—defined as wells used for irrigating a maximum of one acre "of noncommercial trees, lawn or garden," or "for household or other domestic use"—occupy a unique space in New Mexico's water landscape. Unlike other water rights, the Office of the State Engineer must issue permits for domestic wells.

That law dates back to the early 1950s, when domestic wells accounted for roughly half of the state's water use. Back then, their use was growing so quickly that that the state engineer deemed it too burdensome for his office to fully evaluate new permits for domestic wells.

Based on the OSE's conclusions that new domestic wells would result in "minimal production or temporary use," the Legislature passed a law giving him the power to issue new permits without vetting how much water was available or notifying the public, according to a report conducted by the University of New Mexico's Utton Transboundary Resource Center earlier this year.

Since then, however, much has changed. New Mexico's population has more than doubled, and drought conditions—exacerbated by climate change—have grown more severe. But knowing that the law requires the state engineer to keep issuing domestic well permits, individuals and developers have continued to apply for them—and pump water.

"More and more rural development is taking place based on the premise of availability on domestic wells," says Alvin Jones, one of the attorneys representing the New Mexico Farm & Livestock Bureau, which intervened in the case.

"People can walk into the state engineer's office and automatically get domestic water rights," adds Conci Bokum, a Santa Fe resident and senior water rights owner.

All of New Mexico's surface water is already spoken for—or, in water-rights jargon, "appropriated"—and Bokum characterizes the current setup as "adding more straws to an over-appropriated resource."

Mike White, president of the board of directors at the Farm & Livestock Bureau, explains it even more succinctly: "They're issuing water rights when there is no water left."

So in 2006, Bounds took his concerns to court, arguing that the law requiring the state engineer to continue granting domestic well permits violated the state Constitution. In 2011, the case made it to the New Mexico Supreme Court, which on July 25 issued a groundbreaking opinion that will likely inform much of water resource management for the future.

Bounds' complaint centered on the doctrine of "prior appropriation" outlined in New Mexico's Constitution. Basically, it means that water rights work according to a seniority system: The person with the oldest water right is the most senior; the guy who got his yesterday is the most junior.

For the most part, this principle is theoretical—until catastrophe strikes.

Currently, more than 97 percent of New Mexico suffers from severe to extreme drought. Already, there's not enough water to go around.

This is when seniority matters. Let's take two fictional farmers—Cisco, who's had a water right since 1950, and Bruce, who got one last year. If the river they use starts to run dry, the state engineer can cut off Bruce's water to protect Cisco's.  

But historically, New Mexico hasn't been proactive in protecting senior water rights. In part, that's because many of the most senior rights haven't been adjudicated—meaning they lack a legally confirmed priority date. The Utton report also points out that as water managers have learned more about "the interconnectedness of surface water and groundwater," figuring out how one water user may harm another has become more complex. What's more, groundwater depletion can happen gradually—meaning you might not even realize your water's drying up until it's too late.

That, in turn, leads to tensions: Senior water users (like Bounds) worry that as the state engineer continues to grant well permits, junior users will start to infringe on their long-held water rights.

So Bounds argued that the domestic well law—the one that allows the state engineer to issue new domestic well permits, regardless of how much water is available—is unconstitutional because it violates prior appropriation.

While the district court agreed, the state's higher courts didn't. The Supreme Court held that there's nothing wrong with simply issuing a new permit, because merely giving someone a permit to drill for water doesn't mean they'll be allowed to pump it.

"The court was making it very clear that the Legislature has created a shortcut way in getting an application in and granted, but it does not guarantee that you'll get water out of it," explains Steve Hernandez, one of Bounds' attorneys before the case went to the state Supreme Court.

And that's where prior appropriation comes in. In its ruling, the Supreme Court clarified that rather than an abstract concept, the seniority system should serve as a road map for enforcement.

"The entire phrase 'priority of appropriation shall give the better right' is meant to dictate how conflicts between water users can be resolved—by priority administration—in which junior users are cut off when necessary in favor of senior users," Supreme Court Justice Richard Bosson writes in the opinion.

Reed Benson, a professor who focuses on water and environmental law at UNM School of Law, says the ruling is potentially significant.

"The court now is pretty clearly saying that it is constitutionally necessary to make sure that seniors get the water that they're entitled to in times of shortage," he says.

While the ruling offers some clarity, it also means that someone has to regulate domestic well permits

to make sure that a junior water user doesn’t hurt a senior user. That could place a heavy burden on the state engineer—and the Legislature—“for relief from many of these problems.”

In other arenas, the OSE already has the authority to limit how much water users can pump, and even cut off some water users’ supplies in order to keep more senior users from being negatively impacted. When it comes to domestic wells, the Court ruled, the OSE can take similar measures.

One such tactic involves establishing “domestic well management areas,” with stricter limits on how much water a domestic well can pump. Earlier this year, state Sen. Peter Wirth, D-Santa Fe, sponsored a memorial calling for the OSE to establish these areas; the high court ruling confirms that the OSE has the ability to do just that. (The OSE did not respond by press time to SFR’s requests for comment.)

Wirth also sponsored two bills aimed at further regulating domestic wells.

“These domestic well bills would have never been passed in prior years,” he says. In the past, organizations representing developers (such as the New Mexico Homebuilders Association) were resistant to such regulation; this year, they supported it.

“What’s obvious to me and my colleagues is that the status quo isn’t working,” Wirth says.

In the meantime, some local governments—including the city of Santa Fe—have taken matters into

their own hands.

In 1999, the city passed an ordinance preventing domestic wells from being drilled within 300 feet of a city water distribution line—unless the applicant can prove that it costs more to hook up to the city’s water supply than to drill a well. The ordinance has stood up twice to challenges in the state Supreme Court. The city also filed a “friend of the court” brief in the Bounds case.

Marcos Martínez, a city assistant attorney who represents the Water Division, explains that the city had a stake in the case “because it sort of viewed the proliferation of these [domestic] wells as a potential impact on the city’s own well system—the city’s ability to provide a safe and available water supply to the city of Santa Fe.”

The continued issuing of new domestic well permits—potentially on private land just outside city limits—“could lead to some unintended consequences,” he adds.

The drought makes that fact painfully obvious.

According to the Utton report, New Mexico’s population growth “has brought intense pressure on local water supplies.”

And a peer-reviewed 2010 study by UNM climatologist David Gutzler projects that during the second half of this century, the Southwest will suffer a more extreme drought than the two worst dry periods of the 20th century. Other studies anticipate that the drought will continue to affect New Mexico’s water supply. By the middle of this century, for instance, the Rio Grande’s median streamflow is expected to decrease by 13 percent, according to the University of Arizona’s most recent Southwest Climate Change Assessment Report.

So while Bosson writes in the ruling that new domestic well permits can “serve as a placeholder should more water become available in the future,” in light of climate projections, such a prospect seems wildly optimistic.

And as water supplies are further stressed, tensions between junior and senior water users may be exacerbated.

“The real problem is, all the highest economic uses are the most junior rights,” says G Emlen Hall, a professor emeritus at the UNM School of Law. (Think about a city like Albuquerque, with relatively recent population growth, versus a farmer whose family has been here since the 1600s: The farmer has priority, but the city might have a more pressing need to provide drinking water.) “And so, when you talk about enforcing priority,” Hall continues, “you’re talking about alfalfa farmers and worse—in the view of modern economists—trying to shut down cities.”

White, for his part, predicts that the ruling will “create more lawsuits.” But for many water conservation proponents, it’s a major step forward.

“It puts anyone getting a new domestic well on notice,” Wirth says. “Anyone using domestic wells is going to have to be careful, moving forward.”

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