The Legislature in its wisdom made domestic wells a virtual
birthright, mandating that the state engineer issue permits to drill and pump groundwater. Back in the 1950s, it wasn't that big an issue.
It gets bigger as more and more developments unserved by water systems spring up around New Mexico, with each lot owner punching another straw into finite reservoirs of water. And for residents whose livelihood floats on long-established and, they supposed, secure water rights, the issue becomes huge.
But the Legislature, in its wisdom, has declined to take up a political hot potato that pits traditional New Mexicans who live on the land against subdividers who make a living from selling the land. A state district judge in Silver City has opened the door, and the Court of Appeals should step into the policy vacuum.
District Judge J.C. Robinson found that the domestic well permit law violated the state constitution's commandment to honor and protect senior water rights. The case involved a Mimbres Basin irrigator, who argued that before his 1869-vintage rights were put at risk by a newcomer applying for a domestic well permit, he ought to be able to lodge an objection for the state engineer's consideration.
Water rights in the basin are like the land all of it is owned by
somebody. If you want to develop the land, you have to buy it; if you want to make use of water, you have to acquire that property right with the exception of domestic wells.
That exception flows against and undercuts the cornerstone theory of water law in New Mexico and most of the arid West. When the water runs short, the most junior users are the first to go without and the oldest rights are the last to be cut off.
As State Engineer John D'Antonio wrote in a 2004 commentary about surface rights, "If junior water rights cannot be administratively curtailed for the benefit of a senior water right, then senior water rights have no value."
With population growth, with the drought and the drought of legislative action, this issue has become ripe for clarification by the courts.
