Out of Bounds: New Mexico Appeals Court Upholds Domestic Well Law

Note added on 26 July 2013: On 25 July 2013 the New Mexico Supreme Court upheld the New Mexico Appeals Court decision, ruling that the state's domestic (exempt) well statute is constitutional. Read more here, where you will find a link to the opinion. 

I've posted twice on the Bounds case (18 July 2008; and 18 February 2010). The case involves a claim against the State Engineer for allowing domestic (aka 'exempt') wells without considering the possible impairment of senior water rights in a fully appropriated basin.

Here is what I wrote last February:

In July 2008 I posted about the Bounds decision in which a state judge in New Mexico struck down that state's law allowing the drilling of domestic wells without a permit or water right - so-called 'exempt' wells. The ruling applied only to Luna, Hidalgo, and Grant counties in the southwest portion of the state.

 Although it applied only to three counties, it was quite a stunning decision, not just in New Mexico, but throughout the West.

 

The case is finally coming before the New Mexico Court of Appeals, which will hear an oral argument on 22 February 2010.

 

Well, the Court of Appeals reached a decision yesterday and it has upheld the state's domestic well statute, so the State Engineer can continue to allow domestic wells without requiring a water right and without considering possible impairment effects.

 

Here is a PDF of the decision: Download Bounds v San Lorenzo FO

 

For those concerned with the effects and proliferation of exempt wells, this is not good news, even though the original decision applied only to three rural counties. It'll be interesting to see if the decision is appealed to the New Mexico Supreme Court. I'd like to see an appeal.

 

Some might argue that this decision is appropriate, as it comes right before Halloween.  

 

Trick or treat, anyone?

 

Things may have changed since I left New Mexico in mid-2006, but I recall that the State Engineer wanted the legislature to give him the authority to regulate domestic wells. He wanted the statutory authority to do so, but the legislature never could muster the inclination to do so. Maybe the legislators will get the message now.

 

 Thanks to Conci Bokum for sending this my way.

 

Although I've used it before, there is only quote that is apropos:

 

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