Yesterday, the New Mexico Court of Appeals affirmed a 2018 ruling by the Second District Court (Bernalillo County) in the case of Aquifer Science v. Scott Verhines, State Engineer, et als. Although the case is about water in an aquifer east of Albuquerque, just past the Sandia Mountains, the decision gives judicial validity to the concept of water conservation as a significant issue in decisions on water use throughout the state.
Aquifer Science is a company formed by a water management company together with a large, corporate farm in order to provide water for the farm’s intention of building four villages (of several thousand houses each) on its properties, each village with a four thousand foot deep well.
Aquifer Science applied to the State Engineer for a permit to use 1,500 afy of water on 25,000 acres of land. [These quantities were reduced repeatedly during the various phases of litigation, eventually going to trial in court for 350 afy.] Bernalillo County and many local individuals both jointly and separately protested the application. In 2014, the State Engineer denied the application.
Aquifer Science, then, appealed the State Engineer’s decision to the district court. At the district court level, the State Engineer switched sides, arguing in favor of Aquifer Science’s application.
The trial was intensely technical with Aquifer Science presenting through its expert witnesses a thorough geological, geophysical, hydrologic demonstration of the sufficient presence of underground water for the development plans. Its plans were extremely detailed in water use, adopting conservation appliances, water treatment to reuse recycled waste water, replenishment of affected streams, remediation of impacted wells, calculation of natural recharge of the underground system, etc. However, the court denied the application because of the testament of the protestants’ expert that the water use would draw down 100 local wells causing hardship and because Aquifer Sciences plans violated New Mexico’s requirement that any new water use not violate water conservancy.
This district court judgment was the first time the judiciary recognized the principle of conservancy sufficiently to use it to determine a case. When the Office of the State Engineer informs the public that it can protest an application for water use, it always cites the mantra that protests must be based on impairment of one’s own rights, a violation of water conservancy, and/or detrimental to the common welfare. But the courts have never used the conservancy or the public welfare issues much and never to determine an outcome of a case.
The lower court concluded that several of Aquifer Science’s water saving methods were hypothetical since it had no control on private use. It concluded that reusing recycled water for irrigating the golf course and replenish the nearby stream could not be fulfilled until after the villages were fully occupied, and until then much of the applied for water would be used watering the golf course. And, the court ruled that climate change was real and ignored in Aquifer Sciences plans. Aquifer Science appealed that decision to the appellate court.
Yesterday’s Appeal Court decision not only affirmed, and thus strengthened, future arguments based on conservation, but it broadened the definition of conservation itself. The court said that conserving water was not just an issue of “minimal use and prevention of waste, but broader concerns for planned management of and caring for resources to prevent exploitation, destruction, and depletion.” This is a welcomed first, and for those locals concerned with our local watershed, it provides a legal foothold. Still, this does not establish fixed law. If the case is appealed further to the Supreme Court, it can reverse.
Great article. Simplifying the case for the layman is yeoman’s work and so needed. Your deep knowledge of water law, water case law, court procedures make it possible. Your deep thinking and marvelous writing make it masterful.
How does the law define water conservancy? And, does the mantra for protests only apply to new water uses?
Complex answers for Deb: The statute in question is NMSA 72-12-3E describing the State Engineer’s duties in dealing with an application for new appropriations for ground water. Because of another statute which coordinates groundwater and surface water laws, this statute applies to surface water also. If there are no protests filed, the State Engineer is charged to grant water rights to the applicant as long as the appropriation does not “impair existing water rights from the source, is not contrary to conservation of water within the state and is not detrimental to the public welfare of the state.” But since a water right has several parts — quantity of water, date of establishment to establish seniority, place of appropriation and use, purpose of use — any change in these parts is considered a “new” right, and so the conditions this statue requires for a new appropriation and water rights applies to all changes of water rights, too. So, conservation and public welfare are statutory conditions that must be addressed in NMCC’s application to transfer water rights to their Copper Flat’s production wells since it involves a change in location and purpose.
The statute does not define “conservation” partly because in common law traditions it is precedence, i.e., previous court decisions, that define the statutory meanings. Although we do not have a common law system, having turned law mostly into statutes (as civil law countries in Europe now depend heavily on precedence and case law), we do things traditionally and so depend mostly on the courts to “construct” the statutes into law.
In the present case, the court, while broadening the meaning of “conservation” still refused to define the term, preferring to lay down the principle that its meaning is fluid and dependent on the circumstances of each individual occasion. That decision might be good jurisprudence, but it also comes with the prospect of costly litigation, thus favoring those who have the means.
Well done and timely. Thank you.
Thank you Max Yeh for all the work you do and have done for our County when it comes to Water… You would think that with all the dire news about water and drought throughout the southwest. and, oddly, back East, New Mexico wouldn’t even be considering vast land developments… I know it is an unpopular idea, but NM needs to rethink my suggestion of Zero Growth… not a complete halt to growth or expansion of our population and economy, but a reasonable, sustainable approach which is what Mr Yeh has been championing for quite a while now… we here have seen the problems with the old HSLD fiasco out around our little airport, and with water unavailablilty at the Spaceport during construction and now with their proposed astronaut training facility!!! Mr Yeh and I were both active in the NMISC State Water plan, which got us the Water Data program, which is a real necessity for planning economic growth and development…
Le Roy is absolutely right that growth is a problem. On the one hand, we are struggling with a natural scarcity of water; on the other, we are trying to entice corporations and people to move here. The problem, though, is not readily soluble. We might stop advertising ourselves, but we can’t stop or limit people moving here according to the Constitution. Something we ought to do but don’t do is to water test all state legislation in terms of how much water any public program is going to cost. Right now, all proposed legislation in NM has to go through a financial cost analysis. Proposals should undergo water cost analysis, too. After all, el agua es la vida.
In rural areas where we have wells we have limits on acre feet of water for home use but nobody checks to see if these are being abided by. Most these limits for home use probably don’t come close to constraining ordinary household needs. It’s when you start watering plants and lawns. Don’t repair leaking plumbing are, carefree with the way you use the resource the use goes up precipitously. This might be unpopular but would it be too intrusive for the state to require people put meters that electronically send the data to their offices so we can access how responsibly water is being used within the existing wells? It seems to me since the technology is cheap it would give us a real leg up on properly managing this vital resource. Also if rural homeowners know they are being watched they will be much more careful with the ways they use this vital resource.
Studies have shown that just having a meter that shows one’s water use reduces water use. It doesn’t have to be monitored by the state. It’s just a reminder, and it works.
In New Mexico, the water duty (the amount the state granted single households) used to be 3 acre feet a year, enough for a small farm with animals, a vegetable garden and fruit trees. Now the duty has been reduced to 1 acre feet a year, and it seems to me that it is still quite a bit, about 900 gallons a day, which is ten times the average household (including outdoor) use in New Mexico.
Most water use is commercial — industrial or agricultural. If these concerns would practice conservancy, the amount saved would be tremendous. Think of the water used to irrigate pecans, one of the most water intense crops around. Yet, look at all the new pecan orchards that have gone in recently between T or C and Las Cruces. One of the reasons is that farmers need to use their water rights because if they don’t they might lose them back into the public kitty. So you can plant a few trees, use a ton of water regularly and not even have to spend energy to harvest them for years, by which time you might find you need the rights for something else, so the trees can be abandoned.
I believe that meters are supposed to be on all wells. Unfortunately this seems not to be enforced.
See:
https://www.ose.state.nm.us/Meter/index.php
“ 2. SPECIFIC REQUIREMENTS:
Depending on whether a well is categorized as a well used for domestic, livestock, irrigation, municipal, commercial and/or industrial purposes, the following requirements shall apply:
A domestic or livestock well shall be equipped with a totalizing flow meter with a register providing direct readings in gallons with a multiplier of 10.”
Great article. Well written and informative. I learned a lot about this important issue. Thanks Max.