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Ruling protects senior water rights

Copyright © 2013 Albuquerque Journal

New Mexico residents remain free to drill domestic wells to meet household water needs, the state Supreme Court ruled Thursday. But the state has an obligation to ensure that, once wells are drilled, the resulting groundwater pumping doesn’t cut into the water rights of neighbors, the court found.

The ruling creates the possibility that, for the first time, New Mexico could be forced to curtail pumping from domestic wells if the well reduces water supplies to neighbors with senior water rights.

The decision provides new legal teeth to the argument that state government must begin enforcing the “doctrine of prior appropriation,” defending the rights of the state’s oldest water users, experts said Thursday.

“New Mexico has never done that,” said Reed Benson, a professor at the University of New Mexico School of Law. The decision, Benson said, “may mean that we are on the verge of a new era.”

New Mexico has a total of 201,473 legally permitted domestic wells, though a recent study suggests there are likely many more wells drilled illegally by homeowners that are also drawing water from the state’s aquifers. Last year, in the midst of severe drought, the state issued permits for 2,191 new domestic wells.

Thursday’s Supreme Court decision settles a seven-year-old suit filed by Horace Bounds, a farmer in the Mimbres Basin in southwestern New Mexico with some of the most senior, high-priority water rights in the basin. Bounds alleged that, because all of the water in the Mimbres was already spoken for by existing water rights holders, including himself, domestic well permits issued for new homes being built in the basin amounted to a violation of his water rights.

Bounds charged that simply by issuing new domestic well permits, the Office of the State Engineer, which oversees water rights, was violating the New Mexico Constitution.

The court ruled that the act of issuing a permit did not violate Bounds’ rights. But it went on to say that the resulting pumping, if it reduced the amount of water available to Bounds, could be a violation of his rights.

Under the law, the state water engineer has a legal obligation to defend senior water users’ rights, including curtailing domestic well use if necessary to achieve that, the court ruled. In its decision, it urged the state engineer to “fulfill its superintending responsibility by applying priority administration for the protection of senior water users.”

Despite losing the case, Bounds’ attorney, Steve Hernandez, said he was pleased with the decision. Hernandez called the decision a victory for Native American communities, acequias, farmers and irrigation districts, all groups with senior water rights that have long complained about the state’s failure to defend their rights.

D.L. Sanders, chief counsel to the Office of State Engineer, acknowledged Thursday that the state has never curtailed pumping by any of the state’s domestic well users. He also acknowledged that the state has not acted on regulations allowing for the creation of “Domestic Well Management Areas,” intended to help manage groundwater depletions by homeowners drilling wells.

Legislation calling for creation of the management areas was approved in 2006 and the state Senate earlier this year unanimously approved a memorial sponsored by Sen. Peter Wirth, D-Santa Fe, complaining that the Office of State Engineer had done nothing to implement the law.

Sanders said the agency was waiting for a decision in the Bounds case before proceeding.

Thursday’s decision, along with a related Supreme Court ruling last year, clears the way for the state engineer to begin developing the tools needed to enforce prior appropriation, Sanders said in an interview. But he said he expects some water users to be back in court attempting to block the new water management rules.

“Within 18 months, we’ll all be back in court because the rules we promulgate will be challenged by somebody,” Sanders said.