WorldWide Drilling Resource

9 WorldWide Drilling Resource ® SEPTEMBER 2013 Hot Off the Press page is proudly sponsored by American Manufacturing State Rules Its Process for Domestic Well Permits IS Constitutional The NewMexico Supreme Court ruled the state’s domestic well statute (DWS) and permitting process is constitutional. The decision to review the DWS law came as a result of a suit filed in 2006 by a farmer/rancher in southwestern New Mexico. New Mexico follows the prior appro- priation doctrine. This gives senior water rights to the first landowner to beneficially use or divert water from the water source. Subsequent users can obtain a right, but will be considered junior hold- ers. In times of water shortage, the first appropriator gets their full amount, then the second, and so forth until the water is exhausted. To drill a domestic well, a person must file an application with the State Engineer, who is required to issue the permit. There is no analysis or investigation, and the State Engineer has no discretion whether a permit should be granted. The farmer/rancher claimed newly- permitted domestic wells were uncon- stitutionally violating his water rights in the Mimbres Basin. He said the statute was invalid as written; the basin was fully appropriated and all of the water in the basin was spoken for. Therefore, any new domestic permits granted were infringing on his senior water rights. The original ruling was the DWS was unconstitutional, however the NewMexico Court of Appeals reversed this ruling in 2011, stating the DWS did not violate the prior appropriation doctrine. The case was then appealed to the New Mexico Supreme Court which subsequently ruled that even in a fully-appropriated basin, the DWS does not violate the constitu- tionality of prior appropriation or due process.