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Groundwater in New Mexico | 16-1Water Matters!

Groundwater in New Mexico

Since the late 19th century, New Mexicans have been developing thestate’s groundwater resources. From hand-dug wells to proposed wellspenetrating to 12,000 feet, residents have sought sources in lieu of, to

supplement or to replace surface water. Today the state relies upongroundwater to supply almost 50% of its needs. Technology allows scientistsand legislators to better understand the physical characteristics of the resourceso that future generations also may be served.

The 1885-1904 drought led to early groundwater development in the RoswellArtesian Basin area in eastern New Mexico and in the southwestern part of thestate. Residents of the Roswell Artesia area drilled their first wells in 1891 andconstructed the first large municipal well in 1903. A few years later,development for agricultural purposes took off creating a successful economybased on groundwater. Extensive shallow groundwater development tookplace in the 1930s. By the 1950s, withdrawals on average exceeded theprojected average natural recharge by 80%.

Other areas in New Mexico also experienced growing groundwater use asdevelopment increased. In the Gila River and Mimbres River areas, settlersconcluded that available surface water and rainfall were not sufficiently reliablefor their agricultural pursuits. They too turned to wells and groundwater tomake up the difference and support irrigation and livestock production.

With the introduction of new technologies and population growth, NewMexico groundwater development explodedfollowing World War II. In 1931, the NewMexico Legislature passed the state’sGroundwater Code. The Code gave the StateEngineer control over groundwateradministration, although such control was notconferred until the Engineer “declared” a

The 1885-1904 drought led to earlygroundwater development in the Roswell

Artesian Basin area in eastern New Mexico andin the southwestern part of the state.

“Groundwater is a very smallpercentage of the Earth’swater.”

EPA,Water Cycle and WaterConservation,www.epa.gov/regional

/students/pdfs/gndw_712.pdf

16-2 | Water Matters! Groundwater in New Mexico

groundwater basin; that is, identified agroundwater source of supply with“reasonably ascertainable boundaries.” Inthe eighty years since the passage of theGroundwater Code, the State Engineerhas declared basins when in his judgmentthe declaration was necessary to allow forthe protection of senior water rights in thearea of the declaration. At present, allgroundwater basins have been declared inthe state.

The drought of the 1940s and 1950sintensified interest in groundwaterpumping as surface water supplies andprecipitation dwindled. Pumping hascontinued and as a result many NewMexico water tables have continued todrop. For instance:

• In the Albuquerque area, somegroundwater levels tracked by theUSGS in production wells havedeclined more than 120 feet in the pastforty years.

• In the Animas Basin located in thesouthwest corner of New Mexico,groundwater pumping for agriculturaluses caused the water table to dropmore than 80 feet between 1948 and1981.

• In the Roswell Artesian Basin, from1950 to 1975, the declines in thealluvial aquifer ranged between 40 and80 feet.

• In the Gallup area, the water tabledropped about 200 feet between 1999and 2009 and is not expected to meetthe demands of the population by2019.

Purpose MGD%totalGW

% totalsupplyfor

purpose

Public Supply 249 15% 87%

Household (self supplied)

32 02% 100%

Irrigation 1,270 76% 45%

Livestock/Aquaculture

49 03% 70%

Industrial (self supplied)

12 01% 87%

Mining 57 03% 98%

Thermoelectric 10 01% 19%

The drought of the 1940s and 1950sintensified interest in groundwater pumping as surface water supplies and precipitationdwindled.

A central concern about groundwater froma legal point of view is the connectionbetween groundwater and surface water.To the extent that groundwater pumpingaffects surface supply, the increase ingroundwater use in New Mexico mayreduce the amount of water available forsurface water rights, which are often seniorto groundwater rights. In City ofAlbuquerque v. Reynolds, the New MexicoSupreme Court established a principle thathas deeply affected water law andadministration throughout the West; thatis, a state’s water official, such as the NewMexico State Engineer, has the authority torecognize the connection between surfaceand groundwater in his administration ofwater. This principle means that groundand surface water must be consideredtogether in any analysis of water rights.

As of 2009, New Mexico uses about 1.9million acre-feet of groundwater each yearfor agricultural, municipal and otherpurposes. According to the NationalGroundwater Association, groundwatersupplies 47% of the water used in NewMexico. The Association reported theannual usage in 2011 as follows:


In 1964, Charles Theis warned:

…[R]eserves of groundwater accumulatedover millennia are being depleted at a ratethat will exhaust some of them in decadesand will demand changes in the economyor the development of new concepts inwater supply in the not-distant future.…

…In their pristine state, water bodies are inapproximate dynamic equilibrium, withrecharge over a period of years balancingthe natural discharge through springs,invisible seepage into surface streams orlakes, and evaporation and transpirationwhere the water table stands near thesurface. Wells represent a new dischargesuperimposed on this previously stablesystem, and the discharge from wells has tobe balanced by increasing the recharge, ordecreasing the natural discharge, or bysome combinations of these processes.

As the population grows and droughtintensifies, groundwater sources are tappedwith increasing urgency, even asprecipitation decreases. Limited steps arebeing taken to preserve groundwaterthrough limiting withdrawals when surfacewater is available, conservation, andgroundwater recharge.

Groundwater Basins of New Mexico

There are 39 underground water basins inNew Mexico. Some of these are isolated orclosed basins and some are hydrologicallyconnected to surface water. An isolated orclosed basin, encased by surroundinggeology, does not receive significantrecharge from surface water orprecipitation. These basins do not recoverappreciably from withdrawals.Groundwater withdrawal which exceeds abasin’s recharge is regarded as mining oroverdrafting. Examples of mined aquifersin New Mexico include the OgallalaAquifer of the Great Plains where itextends into eastern New Mexico; theJornada del Muerto and Hueco Basins of

the southern New Mexico; and theEstancia Basin located east of Albuquerqueand the Sandia Mountains. Some basinsare not well connected to surface watersources and thus recharge and recover frompumping slowly. Other basins, such as theAlbuquerque Basin are hydraulically wellconnected to surface water and receiverecharge from stream flows.

Underlying the declared groundwaterbasins are undefined deep water basins oraquifers. Toward the end of the 20thcentury, attention turned to thisgroundwater as a possible source to meetNew Mexico’s increasing demand. Thenature of deep groundwater is not wellunderstood, but it is less dependent uponsurface water than shallow groundwaterbasins for recharge. It is not accessedfrequently because of the expense of deepdrilling and uncertainty about its quality.

To be classified as deep groundwater, thetop of an aquifer must be at least 2,500feet below the land surface and containnonpotable water. Nonpotablegroundwater contains not less than 1000mg/l of total dissolved solids. If anoverlying shallow groundwater basincontains nonpotable water, it is likely thatthe underlying deep groundwater will alsobe nonpotable. Information about theseaquifers is derived largely from oil and gaswells and is fairly sparse.

To ascertain the boundaries of these basins,hydrogeologists apply existing knowledge,information about geology and structure,and the principle that the major regionaldivides between surface and shallow

There are 39 underground water basins in NewMexico. Some of these are isolated or closed

basins and some are hydrologically connectedto surface water.


groundwater generally reflect the deeperunderlying structures. The OSE HydrologyBureau continues to examine potentialdeep groundwater basin boundaries andtheir hydrologic connections to shallowgroundwater and surface water.

Institutional Structures For Regulation

State, federal and tribal governmentsmanage some aspects of groundwater. Thefederal government has long deferred tostate law in this arena; however, there areexceptions where the federal governmenthas a management or regulatory role. Sometribes have developed and adopted tribalwater codes which include provisionsregarding groundwater management.

State Institutions: The public owns allwater, including groundwater, in NewMexico, with the right to use waterestablished by state law. The New MexicoOffice of the State Engineer (OSE)administers the state's water resourcesthrough the supervision, measurement,appropriation and distribution of allsurface and groundwater in the state.Under the 1931 Groundwater Code, theState Engineer gains jurisdiction overgroundwater by delineating or ‘declaring’groundwater basins. The Engineer developsrules, regulations and guidelines to carryout the purposes of the Code. TheEngineer creates water districts andappoints water masters to help activelymanage both ground and surface water, toassist with compliance issues and toadminister water distribution on a dailybasis.

To declare a basin, the State Engineerconducts studies to determine the basin'shydrologically distinct or “reasonablyascertainable” boundaries. The Engineerdeclares basins in response to increased welldevelopment, aquifer draw downs andimpacts on surface water which putexisting interstate and intrastate obligationsand uses at risk. In 2006, the StateEngineer declared all remaining undeclaredbasins in the state. The legal description ofeach basin is found in Article 7 of the Rulesand Regulations. These declared basins donot involve deep, nonpotable groundwaterin aquifers with tops more than 2500 feetbelow the land surface.

Rules, Regulations and Guidelines: Thestatutes provide the Engineer with theauthority to:

…adopt regulations and codes toimplement and enforce any provision ofany law administered by him and mayissue orders necessary to implement hisdecisions and to aid him in theaccomplishment of his duties. In order toaccomplish its purpose, this provision is tobe liberally construed. (N.M.S.A. 1978 §72-2-8).

The State Engineer develops rules andregulations to carry out the purposes of theNew Mexico water codes. The Engineerhas adopted general groundwaterregulations that address:

• Rights that were developed prior to the declaration of a basin;

• Well permitting process;

• Licensing of uses;

• Construction of wells;

• Changes to location, place or purpose of use;

• Changes of ownership;

• Supplemental, deepened and repaired wells;

• Plugging of wells;

Some tribes have developed and adopted tribalwater codes which include provisions regardinggroundwater management.


• Termination of water use;

• Metering and reporting requirements; and

• Transport and storage of water.

Appropriations, Declarations, Permits &Licenses: State Engineer documents thatdescribe appropriations includedeclarations, permits, licenses or somecombination of the three. Prior to theState Engineer’s declaration of agroundwater basin, regulation ofgroundwater appropriation occurred underthe common law. A future appropriatorhad only to dig or drill a well and put thewater to beneficial use to create a vested orperfected right. This water right ownercould file a declaration with the OSE, butit was not required. A declaration gives thepublic notice of an intent, or of previousactions taken, to use groundwater.Declarations serve as prima facie proof ofthe facts stated, but do not actually create awater right. That is accomplished throughbeneficial use. Under the Mendenhalldoctrine, if drilling a well is initiated butnot completed prior to the declaration of abasin, no permit is required.

Once a basin is declared, all newgroundwater appropriations, alterations toexisting uses, and drilling of supplementalor replacement wells require a permit fromthe State Engineer. When an application isfiled, the Engineer publishes a notice oncea week, for three weeks in a newspaperlocated in the county where the well willbe located and in each county where thewater will be used or other water rights willbe affected. Anyone who objects to theproposed water right or well may file anobjection with the OSE. The basis forobjections must include substantial andspecific impairment of the objector’sexisting rights. In addition, an objectormay assert that granting the permit wouldbe contrary to the public welfare and/or

the conservation of water within, ordetrimental to the public welfare of thestate. If there is unappropriatedgroundwater water and the other tests aremet, the permit will likely be issued.

Today, most applications are challenged.The OSE’s Administrative Hearing Unithears challenges, takes evidence andrenders decisions. The hearing examinersubmits a report and recommendations tothe State Engineer for disposition. Anydecision of the Engineer may be appealedto the district court in the county wherethe diversion will take place. Following theissuance of a permit, a licensed drillerconstructs the well and files theappropriate paperwork with the Engineer.Cities such as Santa Fe may further limitwells drilling within their boundaries.

Once a well is drilled and water is put tobeneficial use, the regulations provide thatan applicant shall prepare and file a finalinspection and report prepared by aregistered survey professional. When thatstep is completed, the State Engineer willissue a “Certificate and License toAppropriate.” Very few licenses have beenissued in recent years.

Mined Groundwater Basins: Theprocess, law, and regulations for permittingor licensing new and changed uses are thesame for all groundwater appropriations.The State Engineer, however, may developadministrative guidelines for issuingpermits for new appropriations andchanges to uses in mined groundwaterbasins. Groundwater mining occurs when

Once a basin is declared, all new groundwaterappropriations, alterations to existing uses, anddrilling of supplemental or replacement wells

require a permit from the State Engineer.


groundwater is pumped faster than it isreplenished in a basin. The Engineer’sobjective is to administer groundwaterbasins to extend their productive life byregulating the rate of dewatering. Theguidelines often follow the Engineer’sdetermination that the groundwater in abasin has been fully appropriated. Thisdetermination is captured in an orderwhich closes the basin for an indefiniteperiod to new water use permits issuedunder the general groundwaterappropriation statute, N.M.S.A. 1978 §72-12-3. Among those closed to newdevelopment are the underground waterbasins of Estancia (2001), Curry Countyand Portales (2009), and the Lea County -High Plains Aquifer area (2009), andportions of the Roswell UndergroundWater Basin (2005).

The State Engineer considers developingguidelines when a groundwater basin showssigns of significant stress. Thus, problemswhich have lead to guidelines include:

• domestic wells going dry and irrigationwells experiencing reduced productionin the Curry County-Portales Basin;

• declining water levels and deterioratingwater quality in the Estancia andTularosa Basins; and

• concerns about groundwater depletioneffects on the Rio Grande fromAlbuquerque’s municipal pumping andthe subsequent effects on senior users,Compact obligations, and landsubsidence.

These conditions signaled a need for morecareful and restrictive administration.

The goal of the guidelines is to guide OSEstaff in the administration of thegroundwater to 1) assure the orderlydevelopment of the water resources withinthe basin; 2) meet the statutory obligationsregarding protection of the senior users;and, 3) extend the life of these basins sothat they have a minimum of forty years ofproductivity. These guidelines may includeprovisions such as, but are not limited to:

• closing a basin to new appropriationsexcept for those obtained underN.M.S.A. 1978 § 72-12-1;

• using block computer models and localassessment methods to evaluate theeffects of a proposed well and toappropriately limit drawdowns in areas;

• limiting drawdowns over a set period oftime such as 40 years;

• limiting permits to consumptivebeneficial use for different purposes asdetermined by the OSE;

• limiting the per-acre amount to betransferred for an irrigation use wherethere is to be a change of use;

• limiting transfer amounts in the case ofstacking or spreading of water rights;and,

• requiring meters and usage reports incertain instances.

Guidelines have been issued for theunderground water basins of Estancia(2002), Lea County (2009), Curry Countyand Portales (2010), and Roswell (2005) aswell as the administrative areas in theMesilla Valley (1999), the Alamogordo-Tularosa area in the Tularosa UndergroundWater Basin (1997), and the Middle RioGrande (2000).

The State Engineer can also declare aCritical Management Area (CMA) withina mined basin. A CMA defines an areawhere excessive water level decline ratesrequire additional protection. It generallyincludes any area where there is insufficient

The State Engineer can also declare a Critical Management Area (CMA) within amined basin. A CMA defines an area whereexcessive water level decline rates requireadditional protection.


groundwater to sustain existingappropriations for a forty year period. In aCMA, drawdown restrictions are morestringent to maximize the useful life of thedesignated area. Basins which includeCMAs include the Estancia, the LeaCounty, the Curry County-Portales, theRoswell, the Tularosa, and the Middle RioGrande.

Pumping Depletions on Surface Water:Where groundwater pumping is or willcause unacceptable depletions on fullyappropriated surface water resources, theState Engineer can condition any newpermit by requiring ‘offsets’. To effect anoffset requirement, a proposedappropriator must acquire a senior surfacewater right and obtain a OSE permit totransfer it, that is, change the place of use,to the proposed groundwater diversion.The land on which the surface water wasused, no longer has an appurtenant waterright and the water right is said to be‘retired’.

Offsets are a part of the Mesilla ValleyAdministrative Criteria and are describedas being

“…achieved by acquiring a volume ofwater through a water right or othercontractual obligation in the affected watersource and releasing that water to replenishthe affected volume in the source thatresults from exercise of the permittedgroundwater appropriation. Offsets mustbe made before groundwater withdrawalscommence tantamount to surface watereffects associated with the full exercise ofthe permit.”

Mesilla Guidelines at page 5. Requiringoffsets protects the surface flows of therelated stream by reducing surface waterdiversions from a river to accommodatedepletion or reduction by pumping. Thisstrategy is a critical part of conjunctivemanagement of surface and groundwater

resources. Offsets are also required in theguidelines of the Middle Rio GrandeBasin, and the Roswell Basin.

Domestic and Other Small Uses: TheState Engineer’s authority over relativelysmall groundwater withdrawals fordomestic, livestock and temporarypurposes is somewhat limited. N.M.S.A.1978 § 72-12-1 and its subparts requireapplicants to apply for permits and requirethe Engineer to issue them. The Engineerdoes so without evaluation, public noticeor hearing because issuance is mandatory.

In the exercise of his authority, however,the State Engineer has developed domesticwell regulations. The current regulationswere issued in 2006 and amended in 2011,and do not affect pre-existingappropriations. The regulations are similarto those issued for other groundwater uses.The State Engineer may also declare aDomestic Well Management Area or CMAto protect valid, existing water rights andmined aquifers from the effects of domesticwells. The subsequent guidelines mayinclude more restrictive limits on theamount allowed per domestic right. Thelimits are based on the hydrologicconditions and the number of existingwater rights within the declared area. In2003, the Engineer declared a CMA in theTularosa Underground Water Basin for theLa Luz, Fresnal and Laborcita watershedsin the Sacramento Mountains and limitednew domestic well diversions to no morethan .5 acre-feet per year.

Basins which include CMAs include theEstancia, the Lea County, the Curry County-Portales, the Roswell, the

Tularosa, and the Middle Rio Grande.


Metering: To further the mission ofprotecting and administering NewMexico’s groundwater diversions, the StateEngineer now requires metering,monitoring and reporting water usage incertain areas. Previously, metering was notrequired unless by a court order. In theRoswell Artesian Basin, the Lewis courtentered a January 19, 1966 Partial FinalJudgment and Decree which provided forthe metering of all irrigation, industrialand municipal wells. In the Aamodt waterrights adjudication of the Rio PojoaqueValley, the federal court ordered that allsubsequent domestic wells developed bemetered and limited to indoor use only.Metering and reporting allows the StateEngineer water masters to monitor forover-diversion and to manage thecondition of the aquifer.

The State Engineer also requires meteringin the critical underground water areas inthe Roswell Underground Water Basin,Carlsbad Underground Water Basin andCapitan Underground Water Basin. TheEngineer ordered metering of allgroundwater diversions in the Lower RioGrande Water Master District, except fordomestic or livestock purposes. He retainedauthority to order metering of theseexceptions at a later date. The Engineerrequires affected well owners to obtain,install, maintain, and repair any meter andto report meter readings to the OSEquarterly or more frequently if necessary.

Deep Groundwater Basins: The StateEngineer’s authority over deep groundwaterbasins is also limited. In 1967 the Legislaturepassed the original deep groundwater statutes.

This action was taken to protect oil and gasinterests from involvement in Pecos Compactadministration. Between then and 2009 whenthe Legislature amended N.M.S.A. § 72-12-25, the State Engineer did not have authorityto administer water from deep groundwaterbasins. The law only required simple noticefor the drilling of a legal well. In 1997,Midway Ranch Ltd Partnership filed the firstnotice of intent, completing the well thatsame year. By April 2009, a total of 607notices had been filed for appropriations forabout 1.6 million acre-feet per year fromdepths between 2,500 to 12,000 feet. At thattime, only five wells had actually beenconstructed. Most of the notices were filed in2008-2009 and were related to drilling in theMiddle Rio Grande area.

Under the current statute, the Engineermay obtain regulatory authority overnonpotable deep groundwater for any useexcept oil and gas exploration, andproduction, prospecting, mining, roadconstruction, agriculture, generation ofelectricity, use in industrial processes orgeothermal use. Effectively, the Engineer’sauthority is limited to uses for municipalpurposes. To obtain authority to regulatethis water in the same manner as othergroundwater, the State Engineer mustdeclare a deep groundwater basin.

In a presentation in 2009, then StateEngineer, John D’Antonio, stated if a deepaquifer was hydrologically connected to ashallow aquifer, there was no need todeclare the deep basin. He outlined thenext steps for the OSE to pursue:

1. Declaring nonpotable deep wateraquifers if technically defensible;

2. Determining the legal significance ofthe Notices of Intent filed andpublished prior to 2009;

3. Formalizing procedures for filingapplications to appropriate water fromdeep aquifers;

Metering and reporting allows the State Engineerwater masters to monitor for over-diversion andto manage the condition of the aquifer.


4. Formalizing procedures to managedrilling of and reporting of usage fromdeep wells;

5. Setting a well-defined process tofacilitate development of deepnonpotable resources while protectingwater rights and compacts; and

6. Recognizing that the economics ofdevelopment will limit the use deepaquifer water in the near term.

Today, OSE administrative proceduresrequire interested parties to submit a noticeof intent and to file an exploratory wellpermit application and proof of publicationin the newspaper. After drilling the wellowner must submit well records, proof ofcompliance with drilling standards, andwater quality results. Then meter readingsare submitted on a quarterly basis. In orderto avoid the OSE permitting requirements,the owner must show the two conditions setout in the statute are met: the depth towater and the nonpotable nature of thewater.

The Interstate Stream Commission (ISC)protects New Mexico’s right to water undereight (8) interstate compacts, ensures thestate meets its obligations to its sister statesand makes certain that endangered speciesare afforded necessary water. The ISCbecomes involved in groundwatermanagement where pumping affects surfacewater deliveries required under compactsand by endangered species such as in theLower Rio Grande and Pecos River regions.The ISC develops groundwater models toassist in the prediction of groundwaterimpacts on the rivers in its management ofcompact obligations. The Legislatureauthorized the ISC to purchase water rightsor appropriate water on behalf of anyregion. Under this authority, the ISCpurchases and leases groundwater tosupplement Pecos River flows so NewMexico can meet its obligations to Texasunder the Pecos Compact.

Federal Management of Water: Thefederal government generally defers to statelaw for the management of water. InCalifornia Oregon Power Co. v. BeaverPortland Cement Company, the UnitedStates Supreme Court addressed thequestion of federal involvement in waterregulation in the western states. Itrecognized that water use “generally wasfixed and regulated by local rules andcustoms.” This approach included thedoctrine of prior appropriation and wasformalized in the Mining Act of 1866, theDesert Lands Act of 1877 and theirsubsequent amendments. The SupremeCourt held that:

…[F]ollowing the act of 1877, if notbefore, all nonnavigable waters then a partof the public domain became publici juris,subject to the plenary control of thedesignated states, including those sincecreated out of the territories named, withthe right in each to determine for itself towhat extent the rule of appropriation orthe common law rule in respect of riparianrights should obtain.

The Court went on to observe in afootnote that “Congress, since the passageof the Desert Land Act, has repeatedlyrecognized the supremacy of state law inrespect of the acquisition of water,” citingto the Reclamation Act of 1902.

However, the federal government is notwithout constitutional authority to regulateor influence groundwater management. Inthe Sporhase v. Nebraska case, the UnitedStates Supreme Court found that the

Today, OSE administrative procedures require interested parties to submit a

notice of intent and to file an exploratory well permit application and proof of

publication in the newspaper.


Commerce Clause clearly gives Congressthe “affirmative power… to implement itsown policies concerning [groundwater]regulation… Groundwater overdraft is anational problem and Congress has thepower to deal with it on that scale.”

The effect of groundwater pumping on thesurface water rights is playing out in NewMexico’s Lower Rio Grande water rightsstate court adjudication. The United Statesrecently sought to protect its surface waterrights for the federal Rio Grande Projectfrom depletions caused by groundwaterpumping in the area. As a matter of bothstate and federal law, the United Statesasserted that the source of the water for theProject is “(1) all the surface water in thelower Rio Grande and (2) water in theground hydrologically connected to surfacewaters in the lower Rio Grande.” The stateand other responding parties counteredthat the United States’ claim isunsupported by New Mexico state law. OnAugust 16, 2012, the state adjudicationcourt found that the Project right beingadjudicated is limited to a surface right andruled that the federal claim is beyond thescope of the adjudication.

Tribal Institutions: The water rights ofNative American are generally identifiedand defined under federal law. In Wintersv. United States, the United States SupremeCourt held that when the federalgovernment created reservations, it setsaside both lands and water. These rightsare known as federal reserved rights orWinters rights. This holding could beinterpreted to mean that reservation tribes

have a right to the water itself, andcertainly means that they have the right tothe use of the water. While this issue hasnot been address head on by court or bycommentator, it certainly underliesquestions of administration.

Most state and federal adjudication courtshave held that tribes have Winters rights togroundwater as well as to surface water. InNew Mexico, many of the NativeAmericans are Pueblo peoples who haveheld their lands and waters long before thearrival of other Americans. In its 1985opinion, the Aamodt federal district courtconcluded that the Pueblos’ water rightsunder Spain and Mexico law still exist andcould be satisfied from either surface wateror hydrologically connected groundwater.Later in 2001, the Aamodt court examinedthe question of whether the Pueblos owngroundwater. It held that that under everysovereign, the Pueblos did not owngroundwater but rather developed rights touse it.

Groundwater Regulation by Tribes:Whether tribes can regulate theirgroundwater water or must comply withstate law is a matter of debate. Somecommentators argue that administration ofwater within reservation boundaries is amatter of sovereignty. Others assert thatsince the reservations are located withinstate boundaries, rational management ofthe ground and surface water resourcedemands that the tribal portion beadministered under the rules andregulations of the local state engineer.

Development of a tribal water code is oneavenue to administration within tribalboundaries. The Navajo Nation, forinstance, asserts ownership of full equitabletitle to groundwater through the NavajoNation Water Code. The Nation’ssituation is not representative. Only a fewtribes regulate the allocation of their

The effect of groundwater pumping on thesurface water rights is playing out in NewMexico’s Lower Rio Grande water rights statecourt adjudication.


surface and groundwater. Under the IndianReorganization Act of 1934, tribes mustobtain approval of the secretary of theDepartment of Interior when enactinglaws. Under pressure from western states,the U.S. Department of Interior stoppedapproving tribal water codes in 1975 untilsuch time as it could promulgateappropriate rules for the use of water ontribal lands. To date, these rules have notbeen written.

Native American water settlements,however, have addressed administration ina variety of ways. Tribes may agree tosubmit to local state engineeradministration. In the Aamodt LitigationSettlement Act of 2010, the Pueblos agreedto inform the local state engineer or non-Indian water users about aspects of theirwater management. In the Navajoproposed final decree arising out of theNorthwestern New Mexico Rural WaterProjects Act Settlement Act of 2009, theNation agreed to seek New Mexico StateEngineer approval of any lease of theirrights for uses off of trust lands. Tribes mayalso agree to forbearance provisions or toadminister through tribal water codes as setforth in the Crow Tribe Water RightsSettlement Act of 2010.

None of the New Mexico tribe settlementsinclude tribal water code provisions.However, in a survey conducted by theTribal Law Journal, several New Mexicotribes have indicated that they have codesaddressing water. These Pueblos andNations include: Acoma Pueblo, MescaleroApache Tribe, Ohkay Owingeh Pueblo,San Felipe Pueblo, Pueblo de San Ildefono,and Santa Clara Pueblo. The survey,however, does not contain details of thecontent of these water codes which couldbe related to groundwater, surface water,water management and/or water quality.

Key Principles of New Mexico LawConcerning Groundwater

In New Mexico, water belongs to thepublic, but individuals, public entities andprivate entities may acquire a right to usewater. State statutes identify the coreelements of water rights which include:priority, amount, purpose, periods andplace of use and, as to irrigation water, thespecific tracts of land to which it isappurtenant. These principles apply toboth surface and groundwater.

Permits: By issuing a permit the StateEngineer grants the applicant permissionto drill a well and to develop water up to acertain amount. The permit is not proof ofa water right in and of itself. Theappropriator must diligently pursuedevelopment and application of water tobeneficial use. The maximum amountallowed under a permit is governed byregulation and/or adjudication. Followingdevelopment, the Engineer may issue alicense upon inspection and proof of actualbeneficial use. The hierarchy of formalrecognition of a ground or surface waterright has a declaration of water use at thebottom, rises through a permit to a license,and ends up with a decreed right from acourt.

The decision of whether to issue agroundwater permit depends on the typeof permit desired; whether unappropriatedwater is available; whether seniorgroundwater users will be impaired;whether additional depletions on fullyappropriated streams will occur or

In New Mexico, water belongs to the public,but individuals, public entities and privateentities may acquire a right to use water.


interstate compact streams will beimpaired; whether the use is contrary tothe conservation of water in the State; and,whether granting the permit will bedetrimental to public welfare.

The State Engineer determines impairmenton a case-by-case basis. There is nostatutory guidance except that theimpairment must be substantial andspecific to existing water rights. Loweringof a water level in a well, shortening of theuseful life of a well, adding to lift costs,reducing the ability to produce, slightincreases in salinity, and making itnecessary to drill more wells to produce thesame amount of water do not necessarilyconstitute impairment but these factorsprovide some evidence of substantialimpairment. Considerations that canmitigate an impairment claim include theage and construction of the allegedlyimpaired well, the ability of the well ownerto continue to use the well, and whetherthe well can be productively deepened.

If the proposed water right will impair ahydrologically connected surface waterright, the State Engineer will deny theapplication unless that effect is de minimis,the permit can be conditioned to avoid theimpairment, or the effect can be offset. Agroundwater applicant can offset pumpingeffects on the river by purchasing andretiring existing valid senior surface waterrights. In the past, these offsets could bepurchased and retired over time as thepumping effects were observed on theaffected surface water through a processknown as ‘dedication’. This practice was

discontinued in 1994 after the stateattorney general declared it illegal.

There is little case law or statutoryguidance regarding the tests of “contrary tothe conservation of water within the stateor detrimental to the public welfare of thestate.” These tests are also examined on acase-by-case basis and may be overcome bya showing of conservation practices orbenefit to the public welfare. Thus, recentmunicipal applications by Albuquerqueand Alamogordo were supported bydescriptions of present and futureconservation successes and plans. One case,State v. City of Las Vegas, suggests that thedetrimental public welfare test can beovercome where there is evidence of welldevelopment as a part of a municipality’sforty year plan to accommodate reasonablepopulation growth. However,development of such wells could meet thetest of ‘detrimental to the public welfare’ ifthe proposed development threats compactobligations, municipal water supply orsenior rights.

All rights for which permits are issuedmust undergo this analysis, with oneexception – domestic well permits. UnderNew Mexico statutes, the State Engineermust issue permits for domestic uses. Theconstitutionality of this statute is presentlyunder consideration by the New MexicoSupreme Court in Bounds v. D’Antonio,No. 28,860 (2011 N.M.C.A. 011), cert.granted, Nos. 32,713 and 32,717 (N.M.January 27, 2011).

Priority and Priority Calls: The priorityof a water right is related to the date onwhich the water either was put tobeneficial use; the date of an applicationfor a permit, or the date of some otherindicia of intent to appropriate. The rulesfor determining a priority date of agroundwater right are the same as for asurface water right. Water associated with a

A groundwater applicant can offset pumpingeffects on the river by purchasing and retiringexisting valid senior surface water rights.


supplemental well is an exception. In thatcase, the supplemental groundwater rightpriority relates back to that of the originalwater right.

Priority calls are the mechanism formanaging water when there is a shortage.In that event, the State Engineer arrays thewater rights in order of priority andadministers deliveries water from the mostsenior down to the most junior. Thissystem works fairly well where surfacewater users are involved. However in somecases, such as where senior surface users aredownstream from junior groundwaterusers, the call against the junior users maynot result in timely delivery to the seniors.

The Carlsbad Irrigation District (CID)priority call illustrates the problem. TheCarlsbad area was settled before Roswellarea and so surface water rights in Carlsbadare senior to groundwater rights in theRoswell Basin. In order to gain control ofillegal and excessive pumping in theRoswell Artesian basin, the State Engineerinitiated the Lewis adjudication of wateruses in the Basin. In 1976, the CID placeda priority call with the State Engineer. TheEngineer contended that there would bedevastating effect on local economies ofshutting down groundwater uses inRoswell. It was also not clear that shuttingdown groundwater uses above the CIDwould get surface water to the Districtfarmers. State Engineer policy at the timealso allowed administration only whererights were adjudicated. Since the CID’srights were not adjudicated, the Engineerexpanded the Lewis adjudication to includethe rest of the Pecos. As of 2012, theadjudication continues. Although thepriority call never materialized, the 2003Pecos Settlement provides some relief toDistrict farmers through the purchase andretirement of water rights by the state, anddevelopment of a pumping plan of

groundwater from the Roswell artesianaquifer to augment downstream suppliesfor the farmers.

Domestic Rights: The State Engineermust grant applications for domestic wells.The priority of domestic right is the dateon which the application for a permit wasfiled, if the well was drilled after theaffected groundwater basin was declared.The date of a pre-basin well is the datewhen the well was drilled, dug or theintent to do so was formed. The amountof a water right depends on the amount ofwater put to beneficial use, while stayingwithin the permitted cap or maximum.Thus, prior to the 2006 regulationsdomestic water rights were limited to 3acre-feet per year. This water was intendedto serve a family’s domestic uses, itslivestock and the irrigation of 1 acre ofland for home food production. Today,the average domestic well serves only thehousehold domestic needs, and byregulation in 2006, the State Engineerreduced the cap to 1 acre-foot per year.These uses cannot be transferred exceptunder very limited circumstances set forthin the 2011 domestic well ruleamendments.

Supplemental Wells: The source ofirrigation rights may be surface water,groundwater or a combination of the two.Under the Templeton doctrine, when asurface water right owner is no longer ableto get a sufficient supply of water from asurface source, the owner is entitled, as a

Priority calls are the mechanism for managingwater when there is a shortage. In that event,the State Engineer arrays the water rights in

order of priority and administers deliveries water from the most senior down

to the most junior.


matter of right, to drill a supplemental wellin an aquifer that supports the surfacewater. If it becomes necessary to drill asupplemental well, the amount of thewater right does not change. Supplementalwells may also be obtained for other typesof water rights that can no longer besatisfied with an existing source.

Water Transfers: Under New Mexico law,water rights may be severed from theoriginal place or purpose of use and movedto a new place or purpose of use. The StateEngineer requires an owner wishing tomake a transfer to apply for a permit to do.As with any permit, the applicant mustprovide public notice and if the applicationis protested, defend the application in ahearing before the OSE’s AdministrativeHearing Unit. When considering agroundwater right transfer, the StateEngineer must consider the local effect ofthe new withdrawal in the move-to basin.The priority date of the right travels with itto the new location and when fit into thepriority scheme, can cause impairment toexisting water rights. Minor impairmentwill not block a transfer, but moreextensive impairment could. Thesedecisions are made on a case-by-case basis.

Unresolved Questions

Several groundwater issues present todayare: the effects of groundwater pumping onsurface water; the constitutionality ofdomestic wells; and groundwater suppliesfor municipalities.

As groundwater is pumped, a cone ofdepression is created. A cone of depression

is a dewatered area around a well shaft.Surrounding water flows along the conetoward the well shaft from every direction.Over time as pumping continues, the coneof depression expands, lowers the watertable and eventually reaches hydrologicallyconnected surface water. Where pumpinglowers the water table, wells may beimpaired or cease to function. Where thereis a sufficient connection between surfacewater and an aquifer, surface water flowsinto the aquifer and toward the well, thusdepleting the surface water resource.

Domestic Wells: Since 1943 the StateEngineer has not required eitherpublication of notice or a hearing onprotests before issuing a permit since theissuance is mandatory. In 1953, theLegislature formalized this practice in thefirst domestic well statute. The amount ofwater withdrawn from each domestic wellis minimal, or de minimis. In areas wherewells are widely distributed, this minoramount of withdrawal per well has littleeffect on water rights in surroundingground or surface water.

Concentrations of domestic wells, however,can have a significant adverse effect onsurrounding wells, surface water flows, andsenior users. According to OSE recordsfrom 2000, there are about 137,000domestic wells throughout the state. Ofthese, 26% are within one mile andanother 27% are within 5 miles of aperennial stream. For purposes ofhydrologic modeling, the OSE assumesthat withdrawals from wells within 1 milehave a 100% effect on the stream. Whilethe effects of pumping take time to reachany nearby stream, they will eventuallyreduce surface water flow. Since surfacewater is fully appropriated in the state, therights of senior users will be impaired asthe cone of depression intersects withstreams.

Under New Mexico law, water rights may besevered from the original place or purpose ofuse and moved to a new place or purpose of use.


In the mid-2000’s, the case of Bounds v.D’Antonio took on the question ofmandatory issuance of domestic wellpermits. Horace and Jo Bounds arefarmers who hold senior water rights in thefully appropriated Mimbres GroundwaterBasin in southwest New Mexico. TheMimbres Basin has been closed to newdevelopment since 1972, but since thefinal adjudication of water rights in 1993,45 additional domestic well permits hadbeen issued at the time the case was filed.The Bounds argue that the domestic wellstatutes allow a proliferation of wells thatwill affect surface water flow and impairtheir senior surface water rights. Theyassert that this impairment constitutes ataking of Mimbres Underground Basinprivate property (their right to water)without just compensation or due process.They also argue that the statute isunconstitutional because it violates theprior appropriation doctrine and preventsthe State Engineer from protecting seniorusers. The trial court found in Bounds’favor in 2008, but the Court of Appealsreversed in October 2010. The NewMexico Supreme Court granted certiorariin 2011 and the matter is currently underreview.

Municipal Wells: In the Albuquerque area,92 municipal wells supplied 19.6 billiongallons of drinking water in 2010. Thesewells have created cones of depression onboth the east and the west sides of the RioGrande. In 2004, the east side conecovered about 40 miles and in placeslowered the water table about 150 feet.While the west side cone is smaller, similareffects were noted. Studies show that onehalf of the withdrawn water is beingrecharged while the other half is mined.

The USGS developed a groundwater flowmodel that predicts what will happen ifpumping continues at the same rate to the

year 2060. The model predicts, even withconservation goals in place, significantaquifer drawdowns and land surfacesubsidence. Significant drawdownjeopardizes the City’s ability to providewater to its residents into the future. Whilerelatively little land subsidence has beenobserved in Albuquerque, as depletionscontinue, the City can look to Tucson’sexperience. Downtown Tucson hasdropped 6 inches in the last 20 years dueto aquifer depletion, and suffered propertydamage and other problems as a result.

In an effort to forestall these problems, theAlbuquerque Bernalillo County WaterUtility (utility) was formed and a WaterResources Management Strategydeveloped. The strategy’s goal is to reducereliance on the aquifer, to reduce demandthrough conservation and to switch torenewable resources.

To reduce reliance on groundwater, the SanJuan – Chama Drinking Water Projectwhich replaces groundwater with treatedcontract surface water and theReclamation/Reuse Project which usestreated effluent for irrigated sites such asparks and golf courses were developed.Through utility’s the conservationprogram, City residents have reduced theiruse by 252 gallons per person per day inthe mid-1990s to 150 gallons per day in2011. The utility met this goal three yearsearly. The goal of the three programs is toreduce annual pumping to 60,000 acre-feeta year to rest the aquifer so that it recovers

In the Albuquerque area, 92 municipal wellssupplied 19.6 billion gallons of drinking water

in 2010. These wells have created cones ofdepression on both the east and the west sides

of the Rio Grande.


through recharge. This strategy reservesgroundwater for the future and for times ofshortage. The strategy also calls forimplementing an aquifer storage andrecovery program whereby the utility storeswater underground during the winterwhile demand is low for withdrawal in thesummer when demand is high. Thisproject is not designed to recharge theaquifer but rather to provide temporaryunderground storage.

The utility continues to use surface wateras it is available, but must rely on thegroundwater more than originallyanticipated. First, the transition to surfacewater was delayed and then, ash from theLos Conchas fire in the surface waterexcessive treatment costs requiringreversion to groundwater for two (2)months in 2010. Almost as soon as the SanJuan-Chama Project was completed,drought conditions set in. As a result, theSan Juan-Chama diversions were reducedby more than half in 2012. Surface flowsin the river declined and as did thepredicted natural recharge from runoff. Inspite of these setbacks, the USGS reportedin 2011 rising groundwater levels in theAlbuquerque Basin at fifteen (15) of itseighteen (18) monitoring sites.

Rural Wells Supply Growing Cities:Supplying water to municipal usersunderlies the controversy of the SanAgustin Basin Project. In that project, agroup of New York based investors soughta permit from the State Engineer for theright to pump 54,000 acre-feet a year froma deep well field of 37 wells in the SanAgustin Plains near Datil, New Mexico.

Augustin Plains Ranch LLC planned tomarket water to municipalities and thestate to help meet its obligations under theRio Grande Compact. Nearly 900 protestswere filed with the OSE’s AdministrativeHearing Unit. After a hearing and arecommendation from the hearing officer,the State Engineer “denied the application[without prejudice] because it was vague,over broad, lacked specificity, and theeffects of granting it cannot reasonably beevaluated; problems which are contrary topublic policy.” The Augustin Plains RanchLLC appealed to state district court. Thecourt denied the Ranch’s appeal inNovember of 2012 holding that specificityregarding use and place of use is requiredin a groundwater application as a matter oflaw.

Groundwater for Agriculture: Supplyingwater to thirsty agriculturalists is an issueexemplified by the situation in the LowerRio Grande region of New Mexico. TheRio Grande is fully allocated through theCompact, the Rio Grande Project andexisting users. There is a significantconnection between the surface water flowsof the Rio Grande and some of thesurrounding groundwater basins of RinconValley, Mesilla, Jornada del Muerto andHueco. Recharge in the Jornada andHueco is very low and pumping above therecharge rate is mining the groundwater.The Rincon Valley and Mesilla Valley areinterconnected with the Rio Grande whichprovides recharge in above-normal flowyears. However, if pumping increases over2004 levels, these basins will also be minedand the Rio Grande flows will be reduced.

Agriculture is an intrinsically valued part ofthe economy of the area. Yet, with the aridclimate, crop evapotranspiration rates arehigh. Under conditions of prolongeddrought, available surface water isinsufficient to meet the needs of the crops.

Supplying water to thirsty agriculturalists is anissue exemplified by the situation in the LowerRio Grande region of New Mexico.


The irrigators turn to groundwater to keeptheir crops and economies alive. The 2004Lower Rio Grande Regional Water Planreports that the OSE lists 1,738 irrigationwells in the Plan area and 140 livestockwells. As the groundwater is mined, andthe surface water is depleted throughrecharge and drought, the obligations toTexas and Mexico under the Compact, toNew Mexico and Texas farmers and

ranchers in the Rio Grande Project, to themunicipalities and other users cannot all bemet. The question of how to divide andmanage the water between all competinginterests and obligations during times ofplenty is hard, and in times of drought,very difficult.

By Darcy Bushnell, Esq. (2012)

Diana Alba-Soular, Judge Rules Against FederalGovernment in Local Groundwater Case, LASCRUCES SUN NEWS (Aug. 1, 2012).

ALBUQUERQUE BERNALILLO COUNTY

WATER UTILITY AUTHORITY,http://www.abcwua.org:

• Conservation Goal Achieved Three Years Early (2012).

• About Our Aquifer - Getting Water Out of Rocks.

• Source Water Quality Protection.

AMERICAN INDIAN RESOURCES INSTITUTE,SOURCEBOOK ON INDIAN WATER

SETTLEMENTS (The Indian ResourcesInstitute – US 1989).

GEORGE B. ANDERSON, HISTORY OF NEW

MEXICO: ITS RESOURCES AND PEOPLE(1907).

Augustin Plains Ranch Water RightsApplication, NM ENVIRONMENTAL LAWCENTER (n.d.).

Peggy Barroll, Ph.D., Regulation of Water VersusHydrologic Reality in New Mexico, SOUTHWEST

HYDROLOGY 20 (Jul./Aug. 2003).

J. O. BAXTER, DIVIDING NEW MEXICO’SWATER, 1700-1912 (1997).

James C. Brockman, Overview of New Mexico’sGroundwater Code, [presented at 27th BiennialGroundwater Conference and 18th AnnualMeeting of the Groundwater ResourcesAssociation of California, Oct. 6-7, 2009].

BUREAU OF RECLAMATION,http://www.usbr.gov/uc:

• Navaho-Gallup Water Supply ProjectPlanning Report and Final Environ-mental Impact Statement (2009).

• Pecos River Settlement Agreement (Sep.2009)

IRA G. CLARK, WATER IN NEW MEXICO: AHISTORY OF ITS MANAGEMENT AND USE

(1987).

Thomas W. Clayton, The Policy Choices TribesFace When Deciding Whether to Enact a WaterCode, 17 AM. INDIAN L. REV. 523 (1992).

SUSAN COMBS, THE IMPACT OF THE 2011DROUGHT AND BEYOND, TEXASCOMPTROLLER OF PUBLIC ACCOUNTS,PUBLICATION # 96-1704 (Feb. 2012),http://www.window.state.tx.us/specialrpt/drought/pdf/96-1704-Drought.pdf.

Argen Duncan, Domestic Wells Going Dry in Curry County, CLOVIS NEWS

JOURNAL (Jan. 11, 2011), http://cnjonline.com/cms/news/story-528666.html.

FEDERAL CLAIMS TO GROUNDWATER

[Presentations to the Water and NaturalResources Legislative Interim Committee,(Jul. 30, 2012), http://www.nmlegis.gov/lcs/committeedetailextra.aspx?CommitteeCode=WNR&Date=7/31/2012.

A.G. FIEDLER & S.S. NYE, GEOLOGY AND

GROUND-WATER RESOURCES OF THEROSWELL ARTESIAN BASIN, NEW MEXICO,U.S. FOREST SERVICE, USFS WATER SUPPLYPAPER 639 (1933), http://pubs.er.usgs.gov.

Sources Consulted and Other Contributors


John Fleck, River Water Use Allows Aquifer toRecharge: But Changes Slower Than UtilityHad Envisioned, ALBUQUERQUE JOURNAL(2011).

John Fleck, Augustin Plaines Ranch FilesAppeal, EL DEFENSOR CHIEFTAIN (Apr. 11,2012).

David H. Getches, Management andMarketing of Indian Water: From Conflict to Pragmatism, 58 U. COLO. L. REV. 515 (1988).

Micha Gisser, Groundwater: Focusing on the Real Issue, 91 J. POL. ECON. 1001(Dec. 1983).

Aubri Goldsby, The McCarran Amendmentand Groundwater: Why Washington StateShould Require Inclusion of Groundwater inGeneral Stream Adjudications InvolvingFederal Reserved Water Rights, 86 WASH. L.REV. 185 (2011).

Liana Gregory, “Technically Open”: TheDebate Over Native American ReservedGroundwater Rights, 28 J. LAND, RESOURCES& ENVTL. LAW 361 (2008).

Groundwater Use for New Mexico, NATIONAL

GROUNDWATER ASSOCIATION (2012).

G. EMLIN HALL, HIGH AND DRY: THETEXAS-NEW MEXICO STRUGGLE FOR THE

PECOS RIVER (UNM Press 2002).

Josh Hazard & David Shively, ConjunctiveManagement of Surface and Ground WaterResources in the Western United States,DEPARTMENT OF GEOGRAPHY, UNIVERSITY

OF MONTANA, MISSOULA, MT (2011).

YULE KIM, INDIAN RESERVED WATER

RIGHTS: AN OVERVIEW, CRS REPORT FOR

CONGRESS, ORDER CODE RL 32198 (2008).

Michelle Knapik, Who Shall AdministerWater Rights on the Wind River Reservation:Has Wyoming Halted an EnvironmentallySound Indian Water Management System?, 12TEMP. ENVTL. L. & TECH. J. 233 (1993),

John D. Leshy:

• The Federal Role in Managing theNation’s Groundwater, 11 HASTINGS

W.-NW. J. ENVTL L. & POL’Y (2004-5)(reprinted in 14 HASTINGS W.-N.W. J.ENVTL. L. & POL’Y 1323 (2008)).

• Interstate Groundwater Resources: TheFederal Role, 14 HASTINGS W.–N.W. J.ENVTL. L. & POL’Y 1475 (2008).

• Arizona Law Where Ground and SurfaceWater Meet, 20 Ariz. St. L.J. 657(1988) (with James Belanger).

Staci Matlock, Official Rejects Request toPump Water from Catron County to Santa Fe,SANTA FE NEW MEXICAN (Apr. 2, 2012).

Natural Resources Conservation Service,New Mexico, Field Office Technical Guide,U.S. DEPARTMENT OF AGRICULTURE (n.d.),http://www.NM.nrcs.usda.gov.

Rebecca Nelson, Institute Integration:Findings of the Comparative GroundwaterLaw & Policy Program’s Workshop 1, WATER

IN THE WEST WORKING PAPER 3 (2012).

NM BUREAU OF GEOLOGY AND MINERAL

RESOURCES, http://geoinfo.nmt.edu:

• Water Resources.

• Alletta Belin, Consuelo Bokum &Frank Titus, Water Resources of theLower Pecos Region, New Mexico -Groundwater is Renewable Only IfManaged That Way (2003).

• Stacy Timmons, San Augustin andAlamosa Creek Study (2007-2008).

OFFICE OF THE STATE ENGINEER, RULES AND REGULATIONS,http://www.ose.state.nm.us/water_info_rights_rules.html.

OFFICE OF THE STATE ENGINEER &INTERSTATE STREAM COMMISSION:http://www.ose.state.nm.us.

• 1998-1999 Annual Report.

• John R. D‘Antonio, Jr., The Future ofNew Mexico’s Deep Water (Oct. 2009).


• John R. D‘Antonio, Jr., Domestic Wellsin New Mexico (Mar. 2008).

• J.T. Everheart, Preliminary HydrologicReport, San Agustin Plains (1978).

• Martha Franks, The New Mexico WaterCode, 1907-2007 (2007).

• Elaine Moore Hebard & Jennifer A.Johnson, Río Jemez & Río PuercoSubregional Water Plan (2004).

• Middle Rio Grande Water Assembly,Middle Rio Grande Regional Water Plan(2004).

• New Mexico State Engineer DeniesAugustin Plains Ranch LLC Application(2012).

• OSE Technical Reports

• Pecos River Basin – Carlsbad ProjectSettlement. (n.d.)

• Rules and Regulations Governing theAppropriation and Use of Groundwaterin NM (2006).

• Rules And Regulations Governing TheUse Of Public Underground Waters ForHousehold Or Other Domestic Use(2011).

• State Engineer Hires New Water Masterin the Upper Mimbres River Basin,(2008).

• Strategic Plan for Fiscal Year 2013.

• The Pecos Settlement – What DoesImplementation Mean? (2009).

• The Water Line: Anatomy of a RegionalWater Plan: the Estancia Basin (2000).

• Water Masters (n.d.)

NELL JESSUP NEWTON, ROBERT ANDERSON,ET AL., COHEN’S HANDBOOK OF FEDERALINDIAN LAW, (LexisNexis 2005).

ELIZABETH HARTWELL RICHARDS, OVER-ALLOCATION AND THE DOCTRINE OF PRIORAPPROPRIATION: WATER RIGHTS, (ProQuest,UMI Dissertation Publishing 2011).

Judith Royster, Indian Tribal Rights toGroundwater, 15 KAN. J. L.& PUB. POL’Y,Vol. 15, p. 489 (2006).

Conjunctive Management of Reservation WaterResources: Legal issues Facing Tribes, 47 IDAHOL. REV. 255 (2011).

Nabil G. Shafike, Linked Surface Water andGroundwater Model for San Acacia Reach as aTool to Support Decision Making Analysis,UNM (Apr. 21-22, 2004). [presented atIdentifying Technologies to ImproveRegional Water Stewardship, A ConferenceSeries Featuring the Intersection ofTechnology and Water Management: North-Middle Rio Grande Corridor]

Steven J. Shupe, Water in Indian Country:From Paper Rights to a Managed Resource, 57U. COLO. L. REV. 561 (1986).

Zachary A. Smith, Decentralized Decision-making in the Administration of GroundwaterRights: The Experience of Arizona, Californiaand New Mexico and Suggestions for theFuture, 24 NAT. RESOURCES J. 641 (1984).

Jay F. Stein, The Mccarran Amendment AndThe Administration Of Tribal Reserved WaterRights, SOUTHERN ILLINOIS UNIVERSITY

(2011), http://opensiuc.lib.siu.edu/cgi/viewcontent.cgi?article=1284&context=jcwre.

Charles V. Theis, Groundwater in theSouthwestern Region, presented at 6th AnnualMeeting of the Southwestern Federation ofGeological Societies and SouthwesternRegional Meeting of the AmericanAssociation of Petroleum Geologists, atMidland, Texas (1964) p. 327.

F.D. Trauger and CG.C. Doty, Groundwater— Its Occurrence and Relation to the Economyand Geology of Southwestern NM, presentedat the 16th Field Conference, in GUIDEBOOK

OF SOUTHWESTERN NEW MEXICO II, J. PaulFitzsimmons and Christina Lochman-Balk,co-eds. (1965) p. 215.

Tribal Law Journal, Tribal Court Handbook,UNM SCHOOL OF LAW (2012).


U.S. GEOLOGICAL SURVEY,http://www.usgs.gov:

• William M. Alley, Thomas E. Reilly &O. Lehn Franke, Sustainability ofGround-Water Resources (2007),http://pubs.usgs.gov/circ/circ1186/html/intro.html.

• Laura M. Bexfield and Schott K.Anderholm, Estimated Water-LevelDeclines in the Santa Fe Group AquiferSystem in the Albuquerque Area, CentralNew Mexico, Predevelopment to 2002,Water Resources Investigation Report02-4235 (2002).

• Groundwater Atlas of the United States,Arizona, Colorado, New Mexico, Utah,HA 730-C.

• Middle Rio Grande Basin Study 1995-2002 (2012).

• Programs in New Mexico: Ground-WaterDepletion and Contamination in theAlbuquerque Basin (1995).

• Selected Publications on the WaterResources of New Mexico, 1994 toPresent

• Simulation of Ground-Water Flow in theMiddle Rio Grande Basin BetweenCochiti and San Acacia, New Mexico,Water-Resources Investigations Report02-4200 (2002).

UTTON CENTER, WATER MATTERS! (2012),http://uttoncenter.unm.edu/projects/water-matters.php.

WRRI, NMSU website, http://wrri.nmsu.edu.

Conference: Water, Growth and Sustainabil-ity: Planning for the 21st Century (2000).

• Fidel Lorenzo, Growth andDevelopment for Tribes and Pueblos inNew Mexico.

• Peter Chestnut, Water and GrowthIssues for Tribes and Pueblos in NewMexico – Legal Considerations.

Conference: Water Desalinization and ReuseStrategies for New Mexico (2004).

• John M. Stomp, III, Albuquerque WaterReuse Initiatives.

Conference: Surface Water Opportunities inNew Mexico (2008).

• John M. Stomp, III, Overview ofAlbuquerque’s Vision and Projects.

Other

• Martha Franks, The Future ofAlbuquerque and Middle Rio GrandeBasin, WRRI- Rio Grande Task ForceConclusions (1994).

• GROUNDWATER BIBLIOGRAPHY (1996).

• Calvin Lashway, A History Of NewMexico State University’s Well Develop-ment And Groundwater Use (1999).

• Terracon, et al., New Mexico Lower RioGrande Regional Water Plan (2004).

Susan Williams, Indian Winters Water RightsAdministration: Averting New Era, 11 PUB.LAND & RESOURCES L. REV. 53 (1990).

In the Matter of the Application by City ofAlbuquerque Public Works Department toDivert Surface Water from the Rio GrandeBasin of New Mexico, Hearing No. 02-017,OSE FILE NO. 4830, Report and Recommen-dation of the Hearing Examiner (2004).

Cases:

Bliss v. Dority, 55 NM 12. (1950).

Bounds v. D’Antonio, No. 28,860 (2011-NMCA-11), cert. granted, Nos. 32,713 and32,717 (N.M. Jan. 27, 2011).

California Oregon Power Co. v. Beaver PortlandCement Co., 295 U.S. 142 (1935).

City of Albuquerque v. Browner, 97 F.3d 415(1996).

City of Albuquerque v. Reynolds, 71 NM 428(1962).

City of Alamogordo, v. State Engineer, NMCANo. 28,643 (Nov. 3, 2008).

City of Albuquerque v. Reynolds, 71 NM 428(1962).

City of Roswell v. Berry, 80 NM 110 (1969).

Durand v. Reynolds, 75 NM 497 (1965).


Eldorado Utilities, Inc. v. D’Antonio, 2005-NMSC-041, 137 NM 268.

Ensenada Land & Water Ass’n v. Sleeper, 107NM 494 (NMCA 1988 writ quashed, 107NM 413 1988).

Hanson v. Turney, 136 NM 1, 3 (Ct. App.2004).

Heine v. Reynolds, 69 NM 398 (1962).

Herrington v. New Mexico, 2006-NMSC-014, 139 NM 368.

In re City of Roswell, 86 NM 249 (1974).

In re General Adjudication of All Rights toUse Water in the Big Horn River System,835 P.2d 273 (Wyo. 1992) (Big Horn III)

McBee v. Reynolds, 74 NM 783 (1965).

Mathers v. Texaco, Inc., 77 NM 239 (1966).

Montgomery v. Lomos Altos, 2007-NMSC-002, 141 NM 21.

Montgomery v. State Engineer, 2005-NMCA-071, 137 NM 659.

Pecos Valley Conservancy Dist. v. Peters, 50NM 165 (1945).

Smith GWP Inc v. City of Santa Fe, 2006-NMCA-048, 139 NM 410, aff ’d, Smith v.City of Santa Fe, 2007-NMSC-055, 142 NM786.

State v. Aamodt, et al., No. 6-66cv6639,(D.N.M.):

• Order (Jan. 13, 1983).

• Mem. Op. (D.N.M. Dec. 1, 1986).

• Mem. Op. (D.N.M.. Jan. 31, 2001).

State v. Aamodt, 618 F.Supp. 993, 1010(D.N.M. 1985).

State v. E.B.I.D., No. 96-888, Lower RioGrande Adjudication, Stream System Issue 104,United States’ Interest in the Stream System.

State v. Las Vegas, 2004-NMSC-009, 135NM 375.

State v. Lewis, Partial Final Judgment andDecree, NM Fifth Jud. Distr. No. 20294 &22600 Consolidated (Jan. 10, 1966).

State v. Lewis, 2007-NMCA-008, 141 NM 1.

State v. Mendenhall, 68 NM 467 998 (1961).

State v. McLean, 62 NM 264 (1957).

State v. Rio Rancho, 95 NM 560 (1981).

Stokes v. Morgan, 101 NM 195 (S. Ct. 1984).

Templeton v. Pecos Valley Artesian ConservancyDist., 65 NM 59 (1958).

United States v. Anderson, 591 F.Supp. 1(E.D.Wash. 1982).

United States v. New Mexico, 438 U.S. 696(1978).

United States v. Plains Elec. Generation &Transmission Coop., 106 NM 775 (NMCA1988).

Winters v. United States, 207 U.S. 564 (1908).

Yeo v. Tweedy, 34 NM 611 (1929).

State Constitutions and Statutes:

N.M. Const., art. XVI, Irrigation and Water Rights.

Administrative regulations, codes,instructions, orders; presumption ofcorrectness. N.M.S.A. 1978 § 72-2-8.

Artesian Wells, N.M.S.A. 1978 § 72-13-1 et seq.

Groundwater Storage and Recovery,N.M.S.A. 1978 § 72-5A-1 et seq.

Interstate Stream Commission; GroundwaterAppropriation; Water Rights Purchase;Water Planning Funding, N.M.S.A. 1978,§§ 72-14-44.

Pecos River Compact (1948), N.M.S.A.1978, § 72-15-19.

Rio Grande Compact (1939), as amended1953, N.M.S.A. 1978 § 72-15-23.

Surveys, Investigations and Adjudication ofRights, N.M.S.A. 1978 72-5-1 et seq.

Underground Waters, N.M.S.A. 1978 § 72-12-1, et seq.

Water Districts and Water Masters,N.M.S.A. 1978 § 72-3-1 et seq.

Ute Indian Water Compact, Utah CodeAnn. § 73-21-2 (1980).


Federal Statutes:

Act of March 30, 2009, Pub. L. 111-11, 123Stat. 1367.

• Title X, Subtitle B - NorthwesternNew Mexico Rural Water Projects ActSettlement Act.

Claims Settlement Act of 2010, Pub. L. 111-291, § 501, et seq., 124 Stat. 3122.

• Title IV - Crow Tribe Water RightsSettlement Act.

• Title V - Taos Pueblo Indian WaterRights Settlement Act.

Desert Lands Act of 1877, ch. 107, 19 Stat.377.

Fort Hall Indian Water Rights Act of 1990,Pub. L. 101–602, 104 Stat. 3059.

Indians - Irrigation Lands; Regulation of Useof Water, 25 U.S.C. 381 (2010).

Jicarilla Apache Tribe Water Settlement Actof 1992, Pub. L. 102-441, 106 Stat. 2237.

Mining Act of 1866, ch. 262, 14 Stat. 251.

Reclamation Act of 1902, 43 U.S.C. 383.

Northern Cheyenne Indian Reserved WaterRights Settlement Act of 1992, Pub. L. 102-374, 106 Stat. 1186.

Tribal Water Codes:

Law and Order Code of the Shoshone andArapaho Tribes of the Wind River IndianReservation, Wyoming, Title XI, Regulationof Natural Resources and Land, Ch. 8 -Wind River Water Code (1991).

Jicarilla Apache Tribal Water Code (2009).

Navajo Nation Water Code Administration,22 NNC §§ 1101, et seq. (1984).

Salt River Pima-Maricopa IndianCommunity Code of Ordinances, ch. 18,Art. §§ 18-22.

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