Ray Walker on Exempt Wells and Prior Appropriation

Ray Walker, a retired water rights analyst, frequent commenter to this and other water blogs, and who is fond of mentioning a one million acre-feet "Source" of water available to Nevada or California that will not adversely affect the environment or other water rights, asked if he could post an extensive comment to my 18 July post on the court ruling on exempt wells in New Mexico. I agreed, and after seeing his post, decided that it would be better to post it as a regular item as opposed to a comment. He describes how exempt wells (not requiring a water right) essentially subvert the prior appropriation system of water rights.

As always, your comments are welcomed.

Michael

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Exempt domestic wells are wells for domestic use which are administered by the State Engineers as if the law that pertains to the priority system and the doctrine of prior appropriation did not exist. There was a presumption made by the State Engineers and/or the legislatures that domestic well use did not damage the prior vested water rights of others.  It was considered non-damage because the domestic well for "in-house use only" was generally for 350 gallons per day ( 0.39 AF/year) and the actual amount consumed was only 10%.  The other 90% returned to the stream and aquifer of the well.

Water has always been in short supply in the southwestern United States.  Upon their arrival, the early settlers began to appropriate the available water supply by digging ditches and building ponds.  They did so with the understanding that in times of shortage the very limited supply would/could be relied upon because they were the ones who took the first risks and put in the necessary effort to divert the water and put it to the first beneficial use.

The early state constitutions and case law confirmed this pioneer doctrine of "first in time, first in right".  This prior appropriation doctrine is by law to be administered by the respective State Engineers.  Each of the water rights perfected by the early settlers was advertised and proper notice was given to all who might be affected that each claim was for an exact date (appropriation date) at a specified location, in a specified amount, from a specific source and for specific uses.  Each of these water rights was reviewed and argued as to validity and eventually confirmed by the Court and/or the State Engineers. Many of the good water rights date back to the 1870's and before. This is very similar to the early patents on the land where the earlier settlers received their land with the assurance it was theirs to own, develop and eventually sell or inherit.

When there is not enough water to satisfy everyone with a water right, the State Engineer is by law required to shut off the later junior water rights to satisfy the earlier senior water rights. You will receive water more often if you have a water right with an appropriation date of 1870 than one with a date of 1900 or after....let alone one with a date in the 1960s.

By the 1960s, it was realized that many people had drilled wells and were using the water for domestic purposes. The State Engineers allowed this to happen because they did not want to administer ground water...only stream water. 

Domestic well use by law may be in-house use only, livestock and/or the irrigation of small specified amounts of lawn and garden. Each of these three uses may be a different type of domestic well. 

Well permits for such uses were eventually required by the State Engineer. Because the State Engineer did not want to do his duty and shut off all of these thousands of domestic wells, they were declared by the State Engineer and/or the State legislature to be "exempt from the priority system" and could continue to pump water even when the 1870 water rights were short of water!

In many places, proper notice about these new wells was never given to the senior water right owners and the seniors were never given an opportunity to argue in a Court of law or before the State Engineer that the wells were tributary to the streams sources that supplied the senior water right owners with their very life blood for irrigation and livestock watering purposes. New Mexico was one of these places.

Imagine if  your family had owned a ranch that had very little water, but it dated back to the 1860s of the Civil War. How would you feel if a new subdivision sprang up next door and began taking water that was probably tributary and part of the water you depended upon to water your cows, irrigate your fields and feed your family?  This has been the "taking" for more than 70 years and little has ever been done to protect these early water right owners.

This exempt well situation was so misadministered by the State Engineers that they allowed people who arrived  after the 1960s to capture and divert even the spring water that was part of the source relied upon by the senior water right owners. The springs were often declared as wells. This was especially true in Colorado.

For the most part, water rights in the West are real property rights, just like land. They can be bought and sold just like land, except when moving a water right or changing its use, proof must be provided to the State Engineers, the Courts  and potentially damaged parties that the change of water right requested will not damage the water rights of anyone else.  Changes of water rights are very complicated and it is very difficult to prove that damage will not occur.  The water right cannot be changed if there is any unmitigated damage to others.

Judge Robinson's recent ruling in New Mexico finally addresses the issue in New Mexico. Other states may have similar situations.  Colorado is probably not one of them.  As a Water Referee for the District Court, I approved numerous Water Court applications for exempt domestic wells because the well owners were required by law to give proper notice to all water users that they were requesting exempt domestic wells.  All other water users were given every opportunity to be heard, if they felt they were damaged.  None ever objected!

Exempt well owners without water rights are not necessarily given status to object to new water right applications that might damage their domestic wells. The reason this is a grey area is because on one hand they are asking for an exemption from the priority system and on the other as protestors claiming potential damage and asking that the priority system protect them.

This is a very general analysis of the domestic well situation. Specific situations may definitely vary in the different states with exempt domestic wells.  There are also exempt commercial wells in some states. Water rights can be extremely complicated and even contradictory because sometimes  the judges made strange rulings. We are bound by these Court decisions until they are changed by the Court. What makes America great is that we are a country of laws. Keep that in mind when you see someone breaking the law.... taking the property of others, especially their water, without due process should never be allowed. I agree that Judge Robinson has affirmed this principle. 

Comments

[Beverly Singleman, Attorney for Horace Bounds]

The New Mexico Bounds case is still pending on appeal awaiting oral argument. I will try to keep you posted when and if we have a ruling in this case. Thanks for your support.

[delbert grady]

Ray,

Great post on a complicated subject! Thanks for sharing this.

dg