Well Intentions
A lawsuit over water rights in the Upper Mimbres Valley could change the rules for domestic wells and real-estate development statewide.
By Jack King
When Jo Bounds looks at the Upper Mimbres Valley, she sees her home in peril, a place where five generations of Bounds have worked to sustain a way of life that could soon be swept away by a tsunami of home building and marketing in the valley.
This is the reason, she says, that she and her husband, Horace "Jupe" Bounds Jr., have filed a lawsuit that has drawn statewide attention to Grant County and could change the way development is transacted throughout New Mexico.
The suit, filed in June in the Sixth Judicial District Court, notes that Article 16 of the New Mexico Constitution says that the "unappropriated water of every natural stream . . . is subject to appropriation for beneficial use" and gives "priority of appropriation" superior standing in determining who has the right to water in a particular basin. In other words, according to the New Mexico Constitution: first come, first served, when it comes to water.
The Bounds, the suit goes on, own family farm and ranch lands near San Lorenzo and are majority water rights holders in the San Lorenzo Community Ditch Association, which has the oldest water rights on the Rio Mimbres. But domestic wells permitted by the Office of the State Engineer have helped lower the water table in the valley, damaging those water rights. Furthermore, the suit charges, proposed large subdivisions in the valley, which will rely on domestic wells for their houses and yards, will damage them even more.
The suit challenges the constitutionality of a state statute that requires the state engineer to issue domestic well permits to any applicants who comply with the pertinent municipal ordinances. It asks the court for an injunction preventing the state engineer from issuing any more domestic well permits in the Mimbres stream system or underground basin, because all the water in the system has already been "appropriated," or assigned to a water rights holder.
Critics of the Bounds say Jo and Jupe have little business attacking developers. They, themselves, been involved in real-estate development near Santa Rita. With several other lawsuits in various stages of development, the Bounds are hardened partisans of the water wars along the Rio Mimbres, as residents scramble for control over that diminishing, but increasingly valuable, resource.
Jo happily volunteers that the Bounds fought for a court adjudication of water rights on the Mimbres that was completed in 1993. She adds that they have twice asked the state engineer's office for a "priority call" that would cut off some junior water rights holders in the valley and assign all available water rights to more senior users. But she says her critics are off target: "It doesn't change the point of our suit, which is that, if there's going to be development, the right way to do it is to use existing water rights, not drill a bunch of domestic wells that are going to take water from people who already own the rights."
Consuelo Bokum, director of water programs for the smart-growth advocacy group 1000 Friends of New Mexico, says that in 1953, when the legislature passed the law requiring the state engineer to automatically approve all applications for new domestic wells, the state had a fairly low population and the amount of water allowed for domestic wells—three acre feet a year—was considered too small to impair the water rights of existing users. But, she says, in the last 20 to 25 years growth has boomed in New Mexico and most of that growth has been in clusters around already vulnerable water supplies.
For four legislative sessions, an alliance of advocacy groups and legislators tried to pass legislation that would give the state engineer some discretion about how and where he would approve domestic well permits. Home building and real estate lobbyists take credit for killing those bills, Bokum says.
This year State Engineer John D'Antonio has attempted to address the problem head on. New domestic-well regulations, expected to be promulgated by his office this month, reduce the number of acre feet allowed for a domestic well to one acre foot a year, increase filing fees for the wells, and create "domestic well management areas," to be declared at the discretion of the state engineer. In these management areas, domestic wells could be limited to one-quarter of an acre foot per year or less. A public hearing in the locality would be required before such a management area could be created.
The question, Bokum says, is how aggressive will the state engineer be in establishing the management areas? Declaring the current statute unconstitutional would make things much clearer, which is why many interested parties welcome the Bounds lawsuit, she says.
Jack Milarch, chief executive officer of the New Mexico Home Builders Association, says his organization supports D'Antonio's new regulations. "We have encouraged him to do the rules on this, because rules are much more flexible," Milarch says. "This is an issue where we believe the sites in New Mexico where wells are being drilled are very different and should be approached differently. That's really hard to do when you put something into law. It's even harder to do when you put something in the constitution.
"One of the big things we like is that they go local area by local area and hold their hearings there and take into account local conditions," he goes on. "I think, because you're affecting people's rights to use their property, this is the kind of process you should go through. If people have lots where there's no water available because there are senior water rights users that get protected, but the people were assuming they could drill a well someday, you've just massively devalued their land."
D. L. Sanders, the Office of the State Engineer's chief attorney, says the office will oppose the Bounds' constitutional challenge on three grounds: First, the legislature had the power to pass the law that it did. Second, because the constitution states only "unappropriated water" is available for appropriation, the state engineer's office has always had the ability to use its discretion in approving new wells. The new regulations simply ensure that it's possible to apply the current statute constitutionally. Finally, even if the Bounds are correct that the statute infringes on their constitutionally guaranteed water rights, the statute is still not unconstitutional, because the Bounds have always had a remedy: a priority call, Sanders says..
In reply, Jo Bounds says the state engineer's office has issued 45 domestic well permits since the adjudication, which found the Mimbres was fully appropriated, was completed. Besides, she repeats, she and her family have already asked the state engineer for a priority call, twice, to no avail.
"They have," Sanders says, "but there's a dispute about how to go about executing the priority call. The problem is they don't agree with the way we propose to administer it, by a state engineer-appointed water master, so they've chosen to sue us in district court, asking that the court order a water master to administer water rights. We're unwilling to do anything until the court decides whether it has jurisdiction."
But the state engineer didn't create the Mimbres water master district until December 2005. "We filed our first priority call in 1994," Jo says. "Why would they come up with that statement after 12 years?"
John York, one of the San Lorenzo Community Ditch Association's commissioners, says that, legal reasoning aside, the real issue is whether or not the Mimbres Valley can support so many more houses. York is a farmer who grows apples, raspberries, grapes and asparagus in the valley. He says he's experienced the water table's highs and lows for himself.
"You have to remember that in a valley like this there is no static water table," York says. "The water table depends entirely on run-off from the river. When we have a good, steady flow in the river, the water table is at about 15 feet. But, if it doesn't rain for half a year or more and there is no water in the river, the water table goes down to about 100 feet."
York and his wife came to the valley in the 1970s, because it was a quiet place without too many people, he says. "And now there's all kinds of people. Well, we've met some really nice people who've come in after us. It's kind of a two-edged thing. I would like for the valley to remain pristine and backwoods, but that isn't going to happen. On the other hand, I'd like to see it change in a controlled and regulated way."
Jupe Bounds' family settled in Silver City in the 1870s, Jo says. His grandparents, Tom and Flora Harrington, homesteaded and bought land around Santa Rita and the Rio Mimbres later that century. They raised beans in the valley and Flora Harrington lived until she was 103. At 100, she was still supervising her bean fields.
It's a way of life that is slowly leaving New Mexico. If the ranches currently up for sale in the area fill up with houses, it will spell the end of agriculture in the valley, Jo says.
"My son, Steve, knew his great-grandmother," she adds. "There's not many people that can say that. We've all lived here for generations, and will for generations to come, I hope, but I don't know.
"I'll still be here. I'm going to hold it together
for my son and grandchildren. But I don't know how long they'll be able
to hold on."
Jack King is a writer and former newspaper reporter in Las Cruces, who specializes
in covering water issues.