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Saturday, July 12, 2008

Domestic Wells No Longer A Given

By John Fleck
Journal Staff Writer
       A state court this week threw out New Mexicans' longstanding legal right to drill a domestic water well without having to worry about whether it would leave less water for their neighbors.
    The ruling is a victory for activists who say that uncontrolled domestic well drilling poses a long-term threat to New Mexico's ability to manage its dwindling water supples. But the details of how the ruling will affect developers who rely on domestic wells to supply the homes they build is unclear, experts said Friday.
    The automatic right to a domestic well, Judge J.C. Robinson of the Sixth Judicial District Court in Silver City concluded, conflicts with the historic Western principle, written into the New Mexico constitution, that the first users of water in a region have the highest priority water rights.
    That historic Western water right usually means that, if you want to move into an area and start using water, you need to prove that your use will not leave less water for the people who were there first.
    But New Mexico law has long had what Consuela Bokum, a Santa Fe water activist, called "a big loophoole."
    Under a 1950s-era state law, small wells drilled to supply water for your own home were exempt. If you wanted to drill one, you had to file an application with the Office of State Engineer, the state's water management authority. But the State Engineer was required by law to approve it, without checking to see if the well would take water away from older water users in the area.
    At the time the law was passed, the impact was minimal compared to the time required for State Engineer staff to review each well permit.
    Over the years, the number of domestic well permits has grown to between 7,000 and 8,000 per year, according to State Engineer John D'Antonio. As a result, the domestic well permit loophole has been a hot spot in New Mexico water politics over the last decade.
    This week's ruling came in a case bought by Horace and Jo Bounds, descendants of a family that has been farming along the Mimbres River near Silver City for four generations. The Boundses and their attorney, Las Cruces lawyer Steve Hernandez, could not be reached for comment Friday.
    The Boundses sued the State Engineer, arguing that the process that granted wells to be drilled to supply water to new houses in the region were reducing the water they were legally entitled to.
    Under state law, if the developers had diverted water from the Mimbres River, the State Engineer would have been required to review the diversion to make sure it did not violate the Boundses' water rights. If it did, the application could be turned down. But the law also required domestic wells to be issued regardless of their effect.
    Robinson's ruling does not prohibit domestic permits. But it does require the State Engineer to conduct a review before issuing a domestic well permit to make sure the well will not harm other higher-priority water rights holders. In the case of the Boundses, it does not throw out previously issued permits, but requires future permits to be reviewed for their effects on prior water rights.
    That could include both nearby well users and irrigators who use water from rivers and streams. Groundwater pumping generally decreases surface water flows.
    The need to conduct a full water rights review for each of the 7,000 to 8,000 well permits submitted each year would pose an enormous increase in workload that the State Engineer's staff is not prepared to handle, D'Antonio said.
    The next step in the case is a decision about whether the Office of State Engineer will appeal. That decision will not happen until next week at the earliest. In interviews Friday, D'Antonio and State Engineer chief counsel D.L. Sanders said they find themselves in a delicate position on the question of an appeal because they largely agree with the judge's ruling, despite having been on the losing side.
    D'Antonio said he has been trying to warn state officials for some time that the domestic well rule was probably unconstitutional, but efforts to create a legislative fix for the problem have repeatedly failed.
    Bokum, director of the Water Project for 1000 Friends of New Mexico, a group concerned about the state's growth, said the decision is a welcome legal recognition of the reality of New Mexico's water future.
    "We don't have unlimited water in the state, and we're at the point where we can't afford to allow people to go stick holes in the ground if there's not an adequate water supply," Bokum said.