Jul 30, 2013

NGWA on Winning Side of New Mexico Water Rights Case

New Mexico Supreme Court upholds law governing the issuance of domestic water well permits

NGWA New Mexico Supreme Court State Law Domestic Water Well Permits

The New Mexico Supreme Court upheld a state law on July 25, 2013, governing the issuance of domestic water well permits that, if overturned, would have subjected residential well users to a more arduous procedure designed for commercial users.

In 2011, the National Ground Water Assn. (NGWA) filed a brief in the water rights case with the state Supreme Court, arguing that New Mexico's current laws and regulations regarding domestic water wells adequately protected water rights. That position was affirmed by the state Supreme Court, which said that the state's domestic well statute does not conflict irreconcilably with the state constitution.

"The [New Mexico] constitution does not require identical permitting procedures for all [water] appropriations. What is required is priority administration for the protection of senior users, a condition to which domestic well permits have been subject for some time," the state Supreme Court stated.

In New Mexico, the more senior water right holders typically include Native Americans, acequias (community-operated watercourses) and agricultural water users. Junior water right holders typically include municipalities, as well as industrial, residential and recreational water users.

The court found that senior water users do have other recourse under the law. A water user who is able to show actual or impending impairment of water rights has a basis for filing a challenge, the court stated.

NGWA's 2011 court brief supported a Court of Appeals ruling that overturned a July 8, 2008, decision by the Grant County District Court in the case of Bounds v. D'Antonio. The district court decision declared that New Mexico's domestic well statute unconstitutionally violated the due process rights of water rights owners.

The district court also ordered the state engineer to process applications for domestic wells in the same manner as other applications, such as commercial applications, which could result in significant costs and delays to persons seeking a domestic well. The lead plaintiff, Horace Bounds Jr., argued that his surface water rights were affected by groundwater withdrawals by domestic wells.

NGWA noted in its brief that even the district court that ruled in favor of the plaintiff found that Bounds "provided absolutely no evidence of monetary damages, and Bounds provided no substantial evidence of impairment from domestic wells."

Moreover, NGWA asserted, and the state Supreme Court affirmed, "There are many other tools available to the state and to the state engineer that could be effective in protecting water rights, and these tools could be implemented within the framework of the current system."