Second, the Lower Rio Grande Adjudication is beginning to litigate domestic well issues such as priority, transferability and beneficial use. This litigation might also involve the impact of domestic wells on surface water rights, especially since the court is considering creating a hydrology committee to consider such impacts.

Third, an EBID claim in the Lower Rio Grande Adjudication threatens its members’ rights to use irrigation wells.

THE BOUNDS CASE

On July 10, 2008, District Judge J.C. Robinson in Grant County ruled the state’s domestic well statute unconstitutional. His decision has been appealed to the New Mexico Court of Appeals. Farmer Horace Bounds, Jr., and his wife, Jo, claim that 45 domestic wells drilled near their farm in recent years are drying up the Upper Mimbres River and impairing their senior 1869 water rights. The New Mexico Farm & Livestock Bureau intervened in the case in support of the Bounds.

Although the Bounds did not prove they suffered any actual impairment or damage from the surrounding domestic wells, Judge Robinson still ruled that the automatic approval of domestic well applications violates the state doctrine of prior appropriation and violates the due process rights of senior water rights holders. He ruled that domestic well permits, to be constitutional, must be issued in the same type of proceeding required of other water appropriations—including public notice, a staff decision about potential impairment of existing water rights, and a full hearing if there is a protest. Because the State Engineer issues approximately 7,000 - 8,000 domestic well permits a year, the court’s decision likely will overwhelm State Engineer staff. It also will greatly increase the cost of, and the amount of time required to obtain a well permit.

For now, Judge Robinson’s ruling applies only in Grant, Luna and Hidalgo Counties, but it will not be enforced while the case is on appeal. Although the State Engineer himself has, for years, taken the position that the domestic well statute is unconstitutional, he has appealed Judge Robinson’s decision to "ensure that every legal basis in support of the presumption [that the statute is constitutional] is fully deliberated."

The original domestic well statute, N.M. Stat. Ann. § 72-12-1, was enacted in 1953 to exempt domestic and livestock well applicants from the notice and hearing requirements required for new appropriations of groundwater. The Legislature divided the statute into four sections in 2003, including sections for domestic wells and stock watering wells. N.M. Stat. Ann. §§ 72-12-1.1 to -1.2. Because the domestic well statute and the statute concerning stock wells contain the same language, Judge Robinson’s ruling likely applies equally to stock wells. The domestic well statute now requires the State Engineer to issue a well permit to anyone applying to use groundwater for limited noncommercial irrigation of one acre or less, or for household or other domestic uses. Automatic issuance of domestic well permits is a practice common throughout the Western states, and if upheld, Judge Robinson’s ruling could set a dangerous precedent for water law in all of these states.

LOWER RIO GRANDE ADJUDICATION

Judge Valentine has entered an order establishing the "priority, transferability and beneficial use of domestic wells" as Proceeding No. 103. Any water right "claimant" desiring to participate in the litigation of this issue must file a notice of intent to participate by February 5, 2010.

Judge Valentine has indicated that impairment of other water rights (i.e., whether domestic wells impair surface rights), although not really a part of the domestic well issue, "may be considered in context if needed to adequately address the designated stream system issues." Judge Valentine also is considering establishing a hydrology committee made up of expert hydrologists to advise him on issues such as the impact of domestic wells on surface water rights. It is therefore imperative that domestic well owners in the Lower Rio Grande Adjudication actively participate in Proceeding No. 103 in order to protect their water rights.

ELEPHANT BUTTE IRRIGATION DISTRICT

In the Lower Rio Grande Adjudication, EBID has filed a claim to underground waters on 90,640 acres of its members’ lands. EBID and the U.S. government are claiming that up to two acre feet of groundwater per acre is federal project water. Such a right could significantly impair the right of EBID members to use groundwater for irrigation in years when they do not receive sufficient surface water from EBID. Other concerns about the EBID/U.S. claim include the applicability and impact of federal environmental laws, including the Endangered Species Act, if the groundwater of EBID members is declared to be part of the EBID project. For instance, the groundwater might become subject to use for endangered species.

WHY JOIN THE NEW MEXICO GROUND WATER ASSOCIATION

The NMGWA is a 501(C)-(6) Non-Profit organization that works to assist, promote, encourage, support and protect the interest and welfare of the ground water industry and its users within the state of New Mexico. While our focus primarily lies with issues related to well driller and pump installer licensing and installation regulations, the NMGWA has a vested interest in a property owners’ right to drill and operate a domestic well.