State engineer appeals water ruling
The state's top water manager has appealed a recent court ruling that found a key element of New Mexico water law unconstitutional.
As the Independent reported earlier this month, 6th District Judge J.C. Robinson in Silver City ruled that a longstanding statutory requirement for the Office of the State Engineer to approve every application for new domestic wells disregards the "doctrine of prior appropriation."
The state constitution says, in essence, that newcomers cannot be given water that is already claimed. In contrast, the OSE receives 7,000 to 8,000 applications for new domestic wells a year, most of which can take 325,000 gallons of water a year for household use, gardens, livestock and the like. That's typically enough water for four or five U.S. homes.
State Engineer John D'Antonio filed the appeal Thursday. D'Antonio didn't respond to a request for comment from the Independent, but in a statement said he had a duty to appeal the judge's decision:
Under the law, the statutes enacted by the Legislature are given the presumption of constitutionality, therefore, the State Engineer concluded that he must appeal the decision to the New Mexico Court of Appeals for further review to ensure that every legal basis in support of the presumption is fully deliberated.
The appeal stays enforcement of the decision, which applies only in the 6th Judicial District of southwestern New Mexico. D'Antonio said his office will continue to accept and act on domestic well applications in Grant, Hidalgo and Luna counties.
Las Cruces attorney Stephen Hubert successfully represented ranchers Horace and Jo Bounds in the Silver City case, who said new wells drilled in their area had depleted their water source and deprived them of their senior water rights. Hubert did not respond to a request for comment on the appeal, but earlier in the week told The Las Cruces-Sun News that the original ruling will have ramifications elsewhere in New Mexico.
"If it's unconstitutional, it's as unconstitutional in Doña Ana County as it is in Grant County," Hubert said.
The legal underpinning of Robinson's decision is that the Mimbres Basin where the Boundses live — one of about 20 water basins in the state — is considered closed, said Blair Dunn, chief legal counsel at the WaterBank, an Albuquerque water brokerage firm. That means all the water in the basin is spoken for, he said, and that any new user must purchase water rights from an existing user.
Dunn said he believes Robinson's decision will extend to all closed basins, including the middle and lower Rio Grande. If the OSE appeal is denied, it could put at least a temporary halt to new domestic well drilling along the river corridor from Santa Fe to Las Cruces, he said.
"Most people involved in New Mexico water law see this as having a major impact across the state in how the OSE handles these domestic well cases," Dunn said.
One potential outcome is that all new domestic wells would need to buy an existing water right, which is a complex and expensive process, as the Independent reported earlier this week.
Comments:
Posted 07/26/2008 01:53 with
Hopefully John’s appeal is successfull on this.
We never have heard if the new wells were upstream or downstream of the farm who questioned this issue.
There is quite a bit of supposedly unknown water in NM.
Aquifers which been largely ignored and undeveloped mostly in the remote rural areas.
What it amounts to is over time, most of the big landowners simply aquired more land and more land, because lots of land with just a little water was cheaper and easier to use, and certainly required less knowledge and ambition than really developing water on smaller parcels.
Many big places have not had a well dug since the 40’s ( the last agri good times ) and many have not dug a new well for a 100 years.
Several large acreages with all kinds of water…with those foriegn boards of directors even today will budget managers water pipeline money that cannot be utilized because what is really needed, is a well so that there is H2O to put in a pipeline to start with.
Some of em are East Coast boards of Directors…some are NM oil companies who are smart enough to drill an oil well, yet on their ranches cannot seem to figure out that drilling also works for water wells.
Posted 07/28/2008 09:34 with
Markw you are just spouting, do you have any kind of evidence for these comments?....Upstream or downstream??? Doesn’t sound like you know what you are talking about.