(Written by Jack Milarch – NMHBA EVP/CEO – Originally published in the April 2013 Housing Journal)

The Legislature Addresses Domestic Wells

Drought Creates Pressure For Changes

For years New Mexico Home Builders Association has defended the unquestioned right of home owners to drill and use a domestic well under the provisions of Section 72-12-1.1 NMSA 1978 of our state law. This is sometimes described as a “loophole” to our New Mexico constitutional provisions that water is allocated on a first use, first right basis. As the “home builders association” why do we care? Because thousands of new homes in more rural areas have been built over the years on the assumption that water can be obtained under the domestic well provision. Unfortunately, and whether we like it or not, the ongoing drought is creating great pressure to reassess the previous assumptions about domestic well rights. During the 2013 Legislative Session we saw a number of bills on water and water allocation, including SB479, Wirth, Adequate Subdivision Water Supplies. (As I write this, the bill is awaiting consideration by Governor Martinez.)

SB479 seeks to constrain that unquestioned right to drill and use domestic well water under application of our state’s Subdivision Act. The Subdivision Act regulates the division of land in areas outside municipal control. County governments must follow the provisions of the NM Subdivision Act as they process requests from land owners who desire to split their land into smaller parcels. Some of our county governments already require water from some source other than domestic wells in order to grant their permission to subdivide land, but SB479 seeks a restriction on subdivision statewide if agricultural water rights have been “severed” from that land prior to the subdivision request.

When SB 479 appeared we discussed whether or not the severing (selling) of agricultural water rights and subsequently subdividing that land without any water source other than new domestic wells was appropriate or whether such activity is inappropriate “double dipping”. We decided that although relatively common, this activity is not appropriate; however at that point we had other issues with the bill from a practical point of view. We told Senator Peter Wirth we thought the change should apply on a “going forward” basis only so that records may be kept regarding severed water rights from now on and not to expect past records of sold water rights to be part of the subdivision process. Senator Wirth amended the bill to accommodate this concern. With that amendment, and especially in light of the continuing drought, we decided to support SB479.

Our support of this bill during the Session represented a significant change in position for the Association.

We believe it is important to understand our support for the change in SB479 in context with other positions of our Association. Concurrently with our support for domestic wells, we have supported the formation and implementation of the Office of State Engineer (OSE’s) Critical Management Area well restrictions and the Active Water Resource Management plan. Both these programs seek to “share” the water shortage among all users, which we believe is a practical application of our law. Also, we support reducing the domestic well water annual allowance to one acre foot statewide, and even more in critical management areas. We promote the universal installation of meters, and reporting of domestic well usage in a meaningful program, to maintain the limits (although that is not yet being accomplished).   We believe these tools are reasonable and necessary to balance the needs of domestic water well users and other water rights holders. Also, on another front, we continue to help compile and support reasonable building code changes designed to conserve water use in our homes and businesses. We encourage builders to participate in “above code” programs such as Build Green New Mexico which requires even more meaningful water conservation construction features.

On a final note we have been assured by the State Engineer’s staff that their records routinely capture data regarding agricultural water rights sales and severance. We therefore expect the OSE local offices to respond efficiently to the requests for information made by county government when land owners request permission to subdivide a piece of property.

New Mexico Home Builders Association leadership has asked Governor Martinez to sign SB479, Wirth, Adequate Subdivision Water Supplies into law.