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.