Domestic Wells in New Mexico: On Notice?

New Mexico's law allowing the drilling of domestic wells without a permit or water right - so-called 'exempt' wells - may be in jeopardy.

Last week, a judge struck down the law as it applied to Luna, Hidalgo, and Grant counties in the southwest portion of the state. Although it applies only to three counties, it is quite a stunning decision; read the editorial from the Santa Fe New Mexican lauding Judge J.C. Robinson's ruling.

Here is a news story from the Albuquerque Journal.

There are roughly 130,000 of these wells in New Mexico. The state allows each well to pump about 3 acre-feet per year, or about 2,700 gpd (gallons per day), or about 2 gpm (gallons per minute). The exact amount pumped by each well is unknown, since the wells are unmetered and owners do not have to report pumpage. Some studies indicate that the average domestic well uses under 1 acre-foot per year, perhaps below 0.5. The USGS's Circular 1268 estimates 350 gpd, or about 0.4 acre-feet per year for a family of four.

Upshot: it's an unknown in the state's water budget.

I remember having people in New Mexico tell me, with a straight face, that they were not part of the state's water problem because their well "only pumped a few gpm". Yeah, yours and 130,000 others!

Here in Oregon exempt wells for homes are allotted up to 15,000 gpd - that is almost 17 acre-feet per year. I don't know of any Western state that allows as much. Idaho allows a maximum diversion volume of 2,500 gpd; Washington specifies a rate of 5,000 gpd (maximum). A bill to lower the amount in Oregon was defeated last year. The exempt well issue is one that many Western states dread facing. Utah requires domestic wells to obtain a water right and allots each 0.75 acre-feet per year (670 gpd; 0.50 gpm). It can deny permits for domestic wells.

Back to the New Mexico ruling. Here is part of the editorial:

The judge was dealing with a case filed by Horace and Jo Bounds, who argued that four dozen wells punched into the ground near their irrigated farm were drying up the place — and infringing on their water rights, which go back to the 19th century.

The wells were to supply water to houses near the Upper Mimbres River. Permits to drill them have been seen as some kind of basic homeowners' right; put in your application with the State Engineer's Office, which is in charge of water in New Mexico, and the folks there have to issue your permit.

Santa Fe and other local governments lately have been putting their feet down on this tradition too long treated as supreme law, using home rule to limit domestic wells where there's municipal water available. But out in the boonies, the water rush goes on. After all, families have got to have water, don't they?

Well, yes — but what're they doing turning rural areas into ranchettes and bedroom communities? Especially if everybody there is putting a straw into the same soda bottle?

That last paragraph is important. For years, developers have been putting up subdivisions in which the homeowners are required to drill their own wells, or perhaps share an exempt well with a neighbor or two. The developer knows the state can't turn them down. Often times the developer even has water rights but is 'saving' them, perhaps as an investment. I once had a New Mexico state senator unload on me (displacement behavior, as I was the only hydrologist around) about this pernicious practice in his district.

More on the ruling:

It doesn't work for the Bounds and other irrigators to sit around waiting until they're out of water, said the judge. "When the water is gone, it will be too late."

That, he said, is a violation of due process that senior rights holders have coming. The State Engineer, he declared, can't treat the domestic-well process differently than other types of water rights applications.

John D'Antonio, the intrepid State Engineer, knew something like this was going to happen sooner or later. He had been urging the legislature for years to give him the authority to deny domestic well permits. But each session the bill would go down to defeat. I once had a colleague tell me that D'Antonio already had the administrative authority to do so, but wanted statutory authority so the legislature couldn't hammer him when he started to shut wells down. A good strategy, knowing whimsical lawmakers.

Why he wanted the power to do so sprang mainly from the events in the Pecos River Basin in eastern New Mexico -- the vertical line on the above map, emanating near Santa Fe and flowing down through Santa Rosa and Carlsbad and into Texas, to meet the Rio Grande. New Mexico, under the Pecos River Compact, is required to provide Texas with a certain amount of water. John, and others before him, felt the unpermitted domestic wells in the PRB were "stealing" water from the river (or impacting permitted water users) thus impairing the state's ability to meet its compact obligations. And if New Mexico could not meet its obligations, Texas could sue. It should be noted that every time Texas has sued New Mexico over Pecos or Rio Grande water it has won.

Not everyone buys D'Antonio's arguments. But I think he needs the authority. If he got it, he would need more staff to enforce it. That's where the legislature could derail him - give him an unfunded mandate.

By the way, if you want to read a great book about the Pecos River Compact, get Professor G. Emlen Hall's High and Dry: The Texas-New Mexico Struggle for the Pecos River. Em is a former colleague of mine from the University of New Mexico. He is a gifted storyteller.

If Robinson's ruling wasn't enough of a blindside, check out this zinger from the editorial:

This case is only one blow to D'Antonio and his office. Sitting in the state Court of Appeals is another water case — and a friend-of-the-court brief calling into question nearly every basic premise about water law. More about that from this corner in a few days.

I can hardly wait!

"Every calculation, based on experience elsewhere, fails in New Mexico." -- Gen. Lew Wallace, New Mexico Territorial Governor, 1878.

Comments

[Nola Donnel]

Melissa I am also looking for a copy of the Horace and Jo Bounds decision. I would be interested to know if you ever found one.

[Michael]

Hi, Melissa.

No, I do not have a copy. I quickly looked on the NM State Engineer's WWW site and found nothing. You might try the UNM School of Law library, or ask at your local library.

Has it been decided yet?

[Melissa Hornbein]

Hi - I'm wondering if you have a copy of the Bounds decision (the case described above). I've tried to find it everywhere, including the NM district court website and can't even pull up the case number.

Thanks!

[Michael]

Hi, Mathew.

You're welcome. Thanks for stopping by.

[Mathew-New Mexico Personal Injury Lawyers]

The post is good both in regards of knowledge and general awareness. Thanks for the post.

[rodney_phillips]

By the time New Mexico became a U.S. territory, Western water law was largely established. It followed the mining laws of the day, which said "first in time, first in right." For water, that meant whoever started using the water first was considered to have senior water rights, and those rights continue to exist as long as the water is used for any beneficial purpose. New Mexico's founding fathers wrote the concept into the state constitution.
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rodney