Water worries

Recent court decision regarding domestic water wells could have enormous implications statewide.

ALBUQUERQUE -- A Silver City judge's recent decision that new household water wells cannot impinge on a neighbor's water is rippling through the state, creating the potential to drive up rural home prices, dry up agricultural land and cause a major political dust-up in Santa Fe.

The ruling by District Judge J.C. Robinson upholds one of the basic tenets of New Mexico water law — that newcomers can't take water from established users. But the decision extends that principle into new territory, albeit a minor corner of the complicated world of New Mexico water policy. While it applies only to domestic wells and — so far — only in the Sixth Judicial District of southwestern New Mexico, it has people talking, said Consuelo Bokum, a longtime observer of New Mexico water law.

"Politically this is very interesting," she said. If the Office of the State Engineer appeals the decision, it would put the state in the awkward position of arguing in favor of a law the judge found unconstitutional, thereby pitting the state against farmers, Indian pueblos and other senior water rights holders. It also could spur the Legislature to reconsider laws it has nixed in the recent past, Bokum said, or to take up new legislation sure to reopen longstanding rifts between water conservation advocates and the building industry.

"It's really a tricky situation," said the man currently in charge of allocating New Mexico's limited water resources, State Engineer John D'Antonio. "On the one hand, you want to protect the senior water rights holders and make sure there's no additional appropriation of their water." On the other, he said, "You also want reasonable development."

Precedent down the drain?

Squabbles over water in New Mexico go back decades, perhaps even centuries. Archaeologists have found evidence that prehistoric inhabitants of the state, the Puebloan people, built catchment ponds and irrigation ditches to water their crops 1,000 or more years ago, and some researchers say it's likely there were battles over water even back then.

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.

Robinson found that the state statute governing domestic water wells was unconstitutional because, with a few exceptions, it requires the state engineer's office to automatically approve applications for such wells, even in areas where every drop of water is already claimed.

The current law, enacted in 1953, basically assumes that each well doesn't draw much water and therefore it isn't worth the engineer's office's time and effort to closely regulate them, D'Antonio said. By 2000 the state estimated there were 137,000 domestic wells statewide; his office issues permits for 6,000 to 8,000 more every year, he said.

The wells are used for gardens, livestock, household needs and the like, but no one knows exactly how much water all the wells combined draw. Meters are not required on most domestic wells. The engineer's office once estimated the average at 0.35 acre feet per year, or about 100,000 gallons, but until 2006 each well was authorized to take three acre-feet per year — nearly 1 million gallons. The statute was revised in 2006 and most new permits are good for one acre-foot per year.

Still, domestic use makes up a relatively small portion of water use in New Mexico. According to a pie chart prepared by the engineer's office, public and domestic wells use 9 percent of New Mexico's water — less than the amount lost to evaporation (10 percent) and far below the amount used for irrigation and agriculture (75 percent).

Nevertheless, hydrologists know that water wells can cause nearby rivers to run dry, and that's what is charged in the Silver City case. Plaintiffs Horace and Jo Bounds sued the engineer's office in 2006, saying they believed that the 45 wells drilled near their home in the Upper Mimbres Valley east of Silver City were drying up the river they rely on for irrigation. They have water rights dating back to before statehood, and they argued that the state cannot approve domestic wells without knowing their effect on existing users like themselves. Robinson agreed.

In essence the judge told the state engineer to treat domestic well applicants just like any other water user in New Mexico, who must prove their new well or irrigation ditch won't affect existing users. And because every gallon of water in New Mexico is already claimed, that means domestic well applicants could have to buy somebody else's water rights if they want water.

It also means more work for the engineer's office, D'Antonio said. If the decision stands, "we'll have to treat every (domestic well) applicant like a water rights applicant," meaning each applicant would have to advertise their intention to drill a well. The state engineer's staff would have to analyze the plan to see whether it would affect existing users. Neighbors could protest the application, requiring a hearing and potentially sending the issue to state court for an appeal.

"It can get pretty messy," he said, and each case can take years to sort out.

What's next? Anybody's guess

The judge's ruling was not a huge surprise, D'Antonio said, given that water is such a hot topic in New Mexico and that domestic wells have always been a wild card. The engineer's office had hoped to fend off a legal challenge in several previous legislative sessions, he said, but the Legislature wouldn't approve several proposed amendments.

State Sen. Carlos Cisneros, a Questa Democrat whose 2004 bill would have allowed the state engineer to deny domestic well applications in areas where water supplies were questionable, said his measure ran into stiff opposition from developers. It's become common practice, Cisneros said, for developers to buy agricultural land, sell the water rights for tens of thousands of dollars per acre-foot and subdivide the land.

"Then they go to the state engineer and for $5 get a well permit," he said, which allows them to put houses on the land and reap a profit at public expense. Opponents of his 2004 measure, SB 89, bought radio time in his own district to drum up resistance, he said. The bill narrowly passed the Senate, but died in conference committee after the House amended it.

Cisneros said he applauds Judge Robinson's decision, but may reintroduce his legislation next January, which he said would streamline the process of approving domestic well permits while maintaining senior water rights.

After Cisneros' original legislation failed, the engineer's office revised its own rules. Regulations approved in-house in 2006 limit domestic wells to one acre-foot per year, and the engineer can reduce usage even further — to one-quarter acre-foot — in so-called "critical management areas" where water supplies are low. It can also require well owners to buy water rights if it appears the aquifer won't support new wells.

The New Mexico Homebuilders Association actively opposed some of the legislation regarding domestic wells, but it supported the state engineer's new regulations, said association CEO Jack Milarch. The critical management area plan makes sense, he said, because it looks at water resources on a region-by-region basis rather than well-by-well.

D'Antonio said his office may appeal the Bounds ruling and hope that the state Court of Appeals or the New Mexico Supreme Court will overturn the decision. That could also have the opposite effect of extending the ruling to all of New Mexico, he said.

If the ruling is upheld, it could have a dramatic effect on rural home owners and builders. Unless they can prove their proposed well won't affect senior water rights holders, they might have to purchase water rights from another user. That's exactly what Albuquerque, Rio Rancho and other other cities in the Rio Grande valley must do now — at a cost of $15,000 or more per acre-foot.

Home builders in urban areas don't need to worry about any of that. They simply hook up to the nearest water main. But rural homes generally need their own well, and for those homeowners the potential change in domestic well regulations could be costly in both time and money, Milarch told NMI, and has the potential to bring growth in rural areas to a standstill.

Builder Bryan Hinkle said about half the 50 to 100 homes he builds every year in the Albuquerque area require individual wells. Buying water rights for those wells could present a cash-flow problem for the customer, he said, because they would need to buy the water rights before the county even allowed them to submit a construction plan.

Between the water rights and other fees, Hinkel said, "You might have to put up $30,000 or $40,000 (before construction begins), and a lot of people can't put up that kind of money."

Rather than limiting new well construction, he said, the state should require all the existing domestic well owners to meter their water use and report it to the state. "There's a tremendous amount of people pumping more than they're allowed to pump," he said. Under the current system,"you could be wasting water big-time and nobody would know about it."

Jack Hostetler, who builds homes in the Placitas area north of Albuquerque, said his concern isn't so much the cost of the water right, but the bureaucratic process. Neighbors could file objections to new wells, with the paperwork dragging on for months or years.

"You could get the absolutely-no-growth element trying to hang onto this ruling to stop growth," he said.

If domestic wells did eventually require the owners to purchase existing water rights, it would likely boost the price beyond the current rate, said Bill Turner, whose company, the Water Bank, connects buyers and sellers. Santa Fe-area water rights are selling for up to $35,000 an acre-foot, he said. "I think we'll see that in the middle Rio Grande."

A side effect of selling the water rights attached to a piece of agricultural land is that the land is not supposed to be irrigated ever again. That should be a concern to people in the Rio Grande valley, said Bokum, who has worked to sustain agriculture and water rights with the group 1000 Friends of New Mexico.

Asked if the Silver City decision might put greater pressure on farmers to sell their water rights, Bokum said, "Unfortunately, I think so." The temptation to sell may be too much to bear as the price of water rights rises.

On the other hand, if the judge's decision stands, it also is a victory for agricultural users such as the couple who filed the lawsuit, Bokum said, because ultimately it defends senior water users' rights from the steady, unmeasured losses caused by nearby domestic wells.

But as with most water issues in New Mexico, the case is likely to be the source of discussion, legislation and perhaps even litigation for some time, said Rep. Luciano "Lucky" Varela, a Santa Fe Democrat who has worked extensively in water-related issues, including domestic wells.

At the very least, Varela said, "This is going to become a major issue in the regular session" that begins in January. "I expect we'll hear from local governments, developers, ranchers — everybody — because water belongs to the people of the state of New Mexico." Then he added, with a chuckle, "We have a task before us."

print Share

Register or log in to rate