archives

The latest on water litigation
      (Posted 8-21-08) If you are one of the few people who recently received a summons from the court you can relax. You received the summons because for some reason you didn’t respond long ago to the water right offer package. If you have a domestic well, that offer was for .7 acre-feet per year. That’s a lot of water, and most people accepted it.
      Perhaps you didn’t receive the offer, or you received it and chose not to respond, or maybe your response got lost by the Post Office or the bureaucracy, but the court has no record of response from you, so they sent you a summons to finally resolve your water right.
      Editor Tim Amsden has just done new research in the last few days and gives both an update on the water suit and an official contact person should you want more information. Read the entire story here.

DID YOU GET ONE OF THOSE CONFUSING ZUNI WATER LITIGATION LETTERS?
     (Posted 9-11-07) Everyone who is a party to the Zuni River Basin Adjudication (all of us with wells) probably received or will receive a document called a “Notice of Expedited Inter Se Subproceeding for Subproceeding 1,” and an enclosed document that you may fill out if you wish to be involved in this part of the litigation.
     First, let’s get our usual caveat out of the way: we cannot be your lawyers and tell what you should do with this. Okay, now let’s talk about what it is.
     Remember when you signed (or in the case of a very few of you, decided not to sign) the offer from the court which would allow you to settle with the State and the federal government on your right to use up to .7 acre feet per year?
     In this process the court is trying to come up with a determination of what water and how much the Zuni Tribe can use in a year. The big difference is that the Tribe wants a lot more water, and there will almost surely be lengthy litigation before it is resolved. The State of New Mexico, the Federal Government, the users of irrigation water from Ramah Lake, the Navajo Tribe, and many others may be involved. The letter and form you received is to invite you to be involved too. If you fill out the form, you or your attorney is committing, as a legal party to the process, to attend the scheduling meeting on November 27, where decisions will be made about the steps to be taken and timing.
     When I received my letter, my bottom line question was whether my right to use up to .7acre feet/year of water from my well will be affected by this proceeding. I called the number provided for posing such questions, (1-866-822-6134), and talked to a very nice lady who assured me several times that the answer is no—my well will not be affected.
     I think she is probably right. I will not fill out the form to become a party to this. -Tim Amsden

HOW MUCH IS AN ACRE-FOOT OF WATER?
(Posted 11-18-06) For those of you who don't want to do the math, this will help you understand the water adjudication being proposed. 1.0 acre foot = 325,851 gallons, 0.7 acre foot = 228,095 gallons. On a daily basis, 0.7 acre foot works out to 625 gallons/day. Our thanks to landowner Greg Mobley who sent us a web site that will probably tell you more than you'd ever think to ask about water quantities.

ZUNI RIVER BASIN LITIGATION
(Posted 11-17-06) Landowners in Timberlake Ranch are beginning to receive certified mailings from the US Department of Justice, which contain documents related to the Zuni River Basin Litigation. The purpose of the mailings is to seek agreement to proposed consent orders which would, if signed and returned, provide some settlement to their right to use their well. TRnews has provided an up-dated summary of these matters including "Questions & Answers" provided by the Dept. of Justice.

TRLA BOARD LOCKS WELL
(Posted 11-4-06) The TRLA Board of Directors are conducting a survey of the water use at our well. On November 1st the lock was changed so that access can be monitored. Authorized users can gain access to the water by filling out a Survey form. This must be done to avoid loss of well privileges. The board will be reviewing these forms.
These forms can be obtained (in PDF format downloaded here) or by calling the TRLA office at 505-783-4690.

In our opinion, the water rights adjudication process now going on in our area is a good thing. Current water users will end up with formal court recognition of their water rights, which adds some certainty and value to their property. At least as important, the process will significantly increase the ability of the State and others to limit and control future proposals for large usage that would deplete the water resource (such as for a water-intensive manufacturing process, power plant, or large area irrigation).

Under New Mexico law, all areas of the State will eventually undergo water rights adjudication; this litigation just moved our area to the head of the line. It’s good to remember that there will be no restriction of our ability to apply for permits for future domestic wells, or for additional uses of existing wells. There will also be no meters required by this process.

We understand the concern of some that the amount of .7 acre feet of water per year is less than the 3 acre feet provided under state policies and regulations. According to the State, though, readings for metered domestic wells in New Mexico average about .3 (three tenths) of one acre foot per year. That includes both inside and outside water use. Virtually never does a metered New Mexico domestic well go over .7 acre feet in a year. If for some reason a well owner believes they have a right to use more than .7 acre feet, they may request a consultation to seek a larger amount.

A well which used .7 acre feet in a year would use an enormous amount of water. One would have to use an average of 625 gallons per day. “Average” means that if a well user consumes less than 625 gallons during the days of winter, he or she can consume even more in the summer.

We the editors cannot recommend what you should do with your offer. We will say, however, that because .7 acre feet per year is a great deal of water, because we want to be stewards of this valuable and limited resource, and also because it is highly probable that acceptance of the offer of .7 acre feet will end our participation in the litigation process, we have both signed and returned the consent documents related to our wells.

New Well Rules Won't Leave Anyone High, Dry
BY D.L. SANDERS
Chief Counsel to the State Engineer

I am compelled to clarify some of the statements made in the commentary by Pete Balleau, "New Rules Tighten Tap on Wells," concerning permitting of domestic wells.

In 1931, the Legislature enacted that part of New Mexico's "Water Code" that governs the appropriation and use of the state's groundwater.

This original enactment made no special provision far the permitting of ground water for domestic purposes. Accordingly, "domestic well" permits were applied for in the same manner as every other request to appropriate ground water, which required publishing notice of filed applications to allow owners of existing water rights to protect their water rights from impairment by the proposed well.

Due to the volume of applications, and because the small amount of the diversions relative to the size of the then very rural state, the state engineer filed an order in 1943 that removed the notice requirement. In response to concerns that there might be legal challenges to that order, the 1953 Legislature made the state engineer's policy law.

The Legislature did not, however, pre-empt the state engineer's authority to continue regulating domestic uses under the new law. Since enactment of the 1953 law, the state engineer has continued to promulgate regulations applicable to domestic use well permits. It is these regulations, for example, that provide the amount of groundwater permitted cannot exceed 3 acre-feet per year.

The issue before the Legislature in recent years begins with the proposal to change the domestic well statute from "the state engineer shall issue a permit to the applicant" to "the state engineer may issue a permit to the: applicant." This legislative change would give the engineer the power to deny, which would be consistent with the New Mexico Constitution's limiting the state engineer from issuing new permits, even for domestic wells, to the availability of unappropriated water.

Since this needed legislative change has not been forthcoming, the state engineer is limited to granting domestic well permits while protecting against impairment where there is no unnappropriated groundwater available for new appropriations. This is a11 he seeks to do, protect senior existing water rights, as is his duty under existing law.

The state engineer merely proposes new regulations governing the application for and permitting of domestic wells in response to current conditions. While much of the state remains sparsely populated, New Mexico has developed vibrant cities and suburbs along its major interstate rivers.

The debate should not be over whether the state engineer has the statutory authority to regulate domestic wells, since he clearly does, but as to how the regulations will actually apply.

Finally, it is important for New Mexicans to understand that the state engineer is following the law. Under the new regulations, the state engineer is not going to be taking away anyone's domestic well nor is he going to deny anyone a domestic well permit, but he will be protecting senior surface water rights by placing conditions on certain new permits in specific instances.

The only change for the majority of rural New Mexicans is that new permits issued will allow for diverting only up to one acre foot per year. Everyone should understand that the sole legal source of the right to divert groundwater is by permit issued by the state engineer. All permits continue to be subject to his regulation and administration. Once water is put to beneficial use pursuant to permit, the "water rights" become property-rights subject to the prudent regulation of the state, much like a state issued liquor license.

I hope your readers will take the time to read and understand what the state engineer proposes, because they will find that some commentators clearly misunderstand their application, particularly concerning the fact that they will apply only to those applicants filing after regulations are adopted. There is no retroactive effect on existing well owners, except to protect their access to water.

(Posted 7-29-06) The Zuni River Basin Adjudication is a lawsuit that will eventually resolve and prove up water rights throughout the Zuni River Basin, including Timberlake and the Ramah area (for background on the litigation see legal.htm). As part of the adjudication process the River Basin was originally divided into ten sub-areas, so each can be evaluated and managed separately for purposes of assigning water rights.

On July 11, 2006, a motion was filed by the US, the State of New Mexico, and the Zuni Tribe, to set the Ramah area aside as new sub-area so the issues related to irrigation in the area and to the history of Ramah and the Ramah reservoir (Ramah Lake), can be dealt with separately from the rest of the litigation. The parties filing the motion are concerned that the complexity and possible litigation involved with irrigation and the lake might delay settlement in the rest of the lawsuit.

From the motion, it appears that the governments and tribes consider the water impounded in Ramah Lake of particular importance, probably in relationship to US and Zuni Tribal claims to water rights downstream. We can probably anticipate challenges to the water rights of irrigators in the Ramah area, and perhaps to the very existence or nature of the lake itself.

This is not cause for particular concern at this time. We have anticipated all along that the use of water in Ramah Lake could be a point of contention. We still have no idea how all this will work out but suggest that, especially if contentious litigation results, it will be years before final resolution occurs.

The motion doesn’t mention domestic wells, and domestic well owners should not be concerned that such wells in the Ramah area will be treated any differently than other domestic wells in the Zuni River Basin.