Title: Water Allocation Under the Appropriation Doctrine in the Lea County Underground Basin of New Mexico
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Title: Water Allocation Under the Appropriation Doctrine in the Lea County Underground Basin of New Mexico
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann's Collection - Water Allocation Under the Appropriation Doctrine in the Lea County Underground Basin of New Mexico
General Note: Box 12, Folder 7 ( The Law of Water Allocation In The Eastern United States - 1956 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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L WATER ALLOCATION UNDER THE APPROPRI-
ATION DOCTRINE IN THE LEA COUNTY
UNDERGROUND BASIN OF NEW MEXICO
by Charles D. Harris



Shortly after the passage of the New Mexico underground water law1
the Lea County Underground Water Basin was delineated by order of the
^ State Engineer dated August 21, 1931. The boundaries of the basin were
extended by the order of the state engineer on October 1, 1951.2 As pres-
ently constituted, the Lea County Underground Basin comprises 2,183
sections of land in the South High Plains, and is situated in Lea, Eddy and
Chaves Counties, New Mexico.3 The eastern boundary of the Lea County
Basin extends for some 45 miles along the boundary line between Texas
and New Mexico.
Subsequent to World War II, there was a tremendous increase in irri-
gation in Lea County and by the end of 1948 permits were granted author-
izing irrigation of approximately 104,993 acres of land, largely concen-
trated in 20 townships of eastern Lea County.4 On December 29, 1948,
the State Engineer entered an order closing the Lea County Basin to fur-
ther appropriations of water.s After 1948, it was found that the permits
concentrated in the 20 townships mentioned above would result in depleting
the supply of water under those townships.and yet there would be other
areas in Lea County with underlying water which could not be effectively
utilized by the then existing permits. Several court suits were initiated,
in which the parties had appealed from the decision of the State Engineer
denying additional appropriations. The parties in these suits sought by
court action to overrule the administrative decisions.
The two most important cases were those of Lawrence v. State Engineer,
Lea County Cause No. 9979 and Cooper v. State Engineer, Lea County
Cause No. 9565. As a result of this litigation, the State Engineer directed
J. C. Yates, a hydrologist and engineer in the Office of the State Engineer,
Sto make an extensive investigation and report on the water supply and hy-
drography of the Lea County Underground Water Basin. Just as important
as the scientific work Mr. Yates was asked to perform was the fact that


1. N. M. Laws, Ch. 131 75-11-1 et sea. N.M.S.A. 1953
2. Manual of Rules and Regulations of Underground Waters, State Engineer,
New Mexico.
3. Yates, Water Supply, Lea County Underground Water Basin, Unpublished
report of New Mexico State Engineer, p. 1.
4. Yates, supra.
5. Rules and Regulations, supra.


155







LAW OF WATER ALLOCATION


he was charged with the responsibility of choosing administrative proce-
dures for water irrigation in Lea County. In his report 3 he stated:
Preliminary isopachous map of the saturated thickness of the water bearing
formations recently prepared by the U. S. Geological Survey, Ground Water
Branch, indicates, assuming a storage coefficient of 0.20, some 26,400,000 acre-
feet of.water in storage. An average recharge of 1/4 inch of water per year over
the presently delineated basin would amount to some 29,000 acre-feet of annual
replenishment and some must be accountable as flow southeastward across the
New Mexico-Texas state line. Present authorized irrigation plus some of the
major non-irrigational uses may be expected to prove about 96,000 acres of
equivalent irrigational right. Assuming a period of 60 years to theoretically
dewater the basin and disregarding recharge, it is found that some 218,750 acre
feet of water annually is available for appropriation in 58 of the 71 townships of
the basin.
In order to understand Mr. Yates' preliminary statement, it is neces-
sary to describe some of the hydrographical factors affecting the Lea
County Basin. For this purpose we might adopt the statement of H. E.
Thomas.6

The Lea County ground-water basin. Practically all ground water pumped
in Lea County comes from the Ogallala formation of Pliocene age. This for-
mation is composed chiefly of stream-deposited sediments, including sand, silt,
gravel, clay and secondary caliche; it is unconsolidated or weakly consolidated
and has a maximum thickness of 300 feet and an average thickness of about 175
feet. R. S. Cave aptly quoted an early geologist's description of the Ogallala as
'homogeneous in its heterogeneity.' It was deposited upon an eroded surface
having a relief of probably more than 50 feet and is generally underlain by Tri-
assic red beds, although Cretaceous shales underlie the Ogallala in places. The
Ogallala is the surficial formation in most of the High Plains in Lea County, but
thin deposits of wind-blown or slope-wash material lie upon it in places. About
60 per cent of Lea County, which includes some lands beyond the boundaries of
the High Plains, is 'scab land' unsuitable for agriculture.

It is interesting to note that Thomas' comments on Lea County were
written prior to the final determination of the court cases mentioned above.
He does point out a summary of the ultimate administration of the basin
by the State Engineer, and states:7
Accordingly, the State Engineer extended the boundaries of the declared
basin to include the entire ground-water reservoir in the Ogallala formation in
Lea County and set 40 years as a minimum period for depletion of the reservoir.
Applications for new wells are now approved in townships where existing wells
would not unwater the formation within that period, and encouragement is given

6. Thomas, Water Rights in Areas of Ground-Water Mining, U.S. Geological
Survey Circular 347, Washington, D.C., 1955, p. 10.
7. Thomas, op. cit. supra, p. 12.







GROUND WATER ALLOCATION IN LEA COUNTY


to transfer of rights from areas of more concentrated pumpage into those rela-
tively undeveloped townships. Thus the factor of area has become a criterion
in appropriative water rights in Lea County, fdr new wells can be drilled only
in the parts of the reservoir where the water c uld not be extracted by wells un-
der prior permits. (Emphasis ours.)
The above quotation is the best summary of the present policy of Lea
County Basin that we have ever seen. The procedure set up by the State
Engineer was approved by the court in the Lawrence and Cooper cases,
supra. In the decision of the court rendered in the Lawrence case, the
court stated:
8. That subsequent to the first hearing of these cases, the state engineer has
developed a formula based upon the depth to th bottom of the water-bearing
sands and the depth from the surface to theo of the water-bearing sands and
has composed the average saturated thickness of the water-bearing sands in the
Lea County Basin and most particularly over e lands involved in these cases.
That the calculations of the engineer based un said formula are reasonable
and have a substantive evidenciary value....
9. ...Under the formula of the State Engineer there is sufficient unappropri-
ated water to grant all of the applications of the applicant Lawrence without
the impairment of the rights of any prior appropriator within the Lea County
Underground Water Basin.
10. In calculating how much water was available in each township, the State
Engineer assumed that with the present rate o pumping water in storage in the
basin would be depleted in 60 years but that th re would be some water that
could not be recovered and under the formula adopted by the State Engineer the
practical life of the basin under the informati n now available is 40 years.
At the time of the filing of all of the applications by Lawrence, there was then
and is now in such basin and in the immediate area of said lands, unappropri-
ated waters in quantities more than sufficient to grant all of said applications
and that said appropriations would not then have impaired and would not now im-
pair existing water rights from said underground basin...

It can thus be seen that the court in these cases found that there was
no violation of New Mexico laws of prior appropriation in the manner in
which the Lea County Basin is administered. There has been no attack on
the method of administering the Lea County Underground Basin and, there-
fore, the New Mexico Supreme Court has not had an opportunity to rule
upon this invasion of the prior appropriations. However, there was one
case that did arise involving Lea County subsequent to the cases referred
to above. This was the case of State v. Alexander,8 which involved an
action for declaratory judgment by the State Engineer requesting the court
to determine the order of priority of various applicants for the unappropri-
ated waters of Lea County. The supreme court pointed out that the basin

8. State v. Alexander, 59 N.M. 478, 286 P. 2d 322 (1955).







LAW OF WATER ALLOCATION


had been closed on December 28, 1948 to further appropriations; that the
defendant, Troy Collier, had filed an application on April 16, 1953. The
court then stated:
Subsequently, on December 31, 1952, the engineer ascertained there were
additional unappropriated waters in the particular township of 2,905 acre feet,
issued and published and order to that effect. Meanwhile, on April 16, 1952,
Collier filed application No. L-1424 for a permit to appropriate 480 acre feet
per annum for irrigation. Admittedly, prior applications not involved here will,
at the consumptive use rate employed by the engineer, so exhaust the available
water that there will remain only enough to grant either the Collier or the appli-
cation of appellee Young, subsequently filed, but not both.
The court thereupon concluded that Collier was entitled to priority and
directed the trial court to enter an order awarding Collier's application
priority over that of Young. Although this case directly involved the ad-
ministrative procedure set up for Lea County there was no direct challenge
of the State Engineer's administration as such. Both the trial court and
the supreme court evidently assumed that the administrative procedure
was legally correct.
Yet, many observers have questioned the propriety under New Mexico
law of the State Engineer's defining appropriated rights to a finite quantity
of water subject to eventual exhaustion within a feasible time. Observers
point to the language of the United States Supreme Court 9 where that Court
attempted to define what is meant by an appropriated right as follows:
To appropriate water means to take and divert a specific quantity of water
therefrom and to put it to beneficial use in accordance with the laws of the state
where such water is found and by so doing to acquire a right under such laws,
a vested right to take and divert from the same source and to use and consume
the same quantity of water annually forever.

In the Lea County Basin, however, there is no possibility of granting an
appropriated right in perpetuity. In its natural condition, the water level
of the Lea County Basin was in a state of equilibrium. The amount of nat-
ural discharge over any given period of years was exactly the same as the
amount of recharge. With minor fluctuations the water table remained
static. When artificial discharge by means of pumps was superimposed
upon the rate of discharge occurring naturally, the water table had to de-
cline. All hydrologists point out that it is theoretically possible to drain
the basin by the use of only a few pumps acting as artificial discharges.
To put this another way, it is calculated that the annual rate of recharge
or replenishment to the Lea County Basin is 29,000 acre-feet per annum
and the natural discharge is also 29,000 acre-feet per annum. When wells
are drilled into the aquifer and water is withdrawn by artificial means,
there is no appraisable decrease in the natural discharge. For all practical
9. Arizona v. California, 283 U.S. 423 (1931).







GROUND WATER ALLOCATION IN LEA COUNTY 159

purposes all of the water that is withdrawn by artificial means creates
a loss of water in storage to the same extent that the water is withdrawn.
SAs Thomas puts it:10
Under a mining economy, some of the water is removed from storage under
the land and although the stored quantity in some reservoirs may be large, it is
nevertheless a finite quantity and subject to eventual exhaustion.
This is a simple proposition but it is a very difficult thing for most lay
4 people to understand. In order to make clear the meaning of mining econ-
omy in ground water, an analogy to oil extraction might be used. Nature
is continuously manufacturing more oil but yet most people realize that
the extraction of oil is a mining proposition and that eventually any oil well
Swill extract all of the oil in the land immediately underlying the pumping
plant regardless of how large the given reservoir of oil may be. This is
also true of water. There is no actual or social benefit to the public in a
Reservoir of water lying unused under the Surface of the land. To utilize
the water, it must be extracted, that is, it Iust be mined. By doing so the
reservoir must be depelted in underground basins such as Lea County.
Armed with this knowledge, Mr. Yates cf the State Engineer's office
worked out a formula whereby water rights in that basin could be utilized.
The criteria for the formula included among other things:
(1) The administration of water rights must be pursuant to the law of
prior appropriation.
(2) Maximum protection must be given to the holders of existing rights.
(3) There could be no utilization of the water without mining of the wa-
ter and eventual depletion of the basin.
(4) The administrative program should be defined in such a way as to
have the most favorable hydrological pattern of withdrawal possible
under the framework of New Mexicol law.
Mr. Yates was instructed to set up a program for allocation that would
allow the greatest amount of extraction of water with the least amount of
Waste. Mr. Yates described the formula adopted by the State Engineer as
follows: 11
The predicted effects have been computed by the Theis non-equilibrium for-
mula using T equals 100,000, S equals 0.20 and t equals 40. Each township is
L assumed to have one well pumping in the center of each 9 square mile area.
The computed effects in the pumping township and surrounding townships were
L adjusted to unity. The storage depletion is proportional to the diversion rate.
One acre-foot per acre of irrigational right was used to distribute base rights.
S Average storage depletion per year is then the base right effect multiplied by
j the net duty of 2 1/2 acre feet per annum.


10. Thomas, op. cit. supra, p. 10.
11. Yates, op. cit. supra, p. 2.






160 LAW OF WATER ALLOCATION

It can thus be seen that the formula worked out for Lea County is not a
complete innovation of the law of natural resources. It is similar in many
ways to the orders of oil and gas authorities of several states in their
spacing requirements for oil and gas wells. Oil and gas authorities are
sometimes called oil and gas conservation commissions and their spacing
requirements for oil wells are predicated on the proposition of conserva-
tion. In all the states, minerals, including oil and gas, are private prop-
erty and if the oil and gas administrative authorities can work up spacing
requirements for the purposes of conservation, then it would seem that
this would be good precedence whereby almost any state could promulgate
regulations for spacing of water wells in order to conserve this resource.
We would take issue with those that would say that the Lea County ad-
ministration is contrary to the idea of prior appropriation. We submit
that this type of administration falls within the very spirit of the doctrine
of appropriation. On this point we would quote from the New Mexico Su-
perme Court: 12
We are here considering 'artesian basins, reservoirs or lakes, the bound-
aries of which may be reasonably ascertained by scientific investigations or
surface indications.' Such bodies of subterranean water are the principal re-
source of the localities where they occur. Their employment to the best eco-
nomic advantage is important to the state. According to the 'correlative rights'
doctrine, each overlying owner would have the same right-the right to use
whenever he saw fit. The right does not arise from an appropriation to bene-
ficial use, which develops the resources of the state. It is not lost or impaired
by nonuse. Regardless of the improvements and investments of the pioneers,
later comers or later developers may claim their rights. The exercise of those
rights which have been in abeyance will frequently destroy or impair existing im-
provements, and may so reduce the rights of all that none are longer of prac-
tical value and that the whole district is reduced to a condition of nonproductive-
ness. The preventative for such unfortunate and uneconomic results is found
in the recognition of the superior rights of prior appropriators. Invested capital
and improvements are thus protected. New appropriations may thus be made only
from a supply not already in beneficial use. Nonuse involves forfeiture. A
great natural public resource is thus both utilized and conserved. (Emphasis
ours.)
This pronouncement by New Mexico Supreme Court was in 1929 be-
fore the courts had the benefit of more recent hydrologic investigations
and scientific determinations.
It would appear that the New Mexico Supreme Court at the time of Yeo
v. Tweedy, was thinking along the same lines as the United States Supreme
Court when the federal court said that the right to appropriate was the
right to use forever. We now know that this natural public resource in
many instances cannot be used and at the same time preserved, if it is


12. Yeo v. Tweedy, 34 N.M. 611, 28 P. 970 (1929).





I







GROUND WATER ALLOCATION IN LEA COUNTY 161

Meant by preserved that it can be used in perpetuity. The most that the
administrator can hope for is to eliminate waste. We submit that the
State Engineer of New Mexico has used a realistic and hardheaded ap-
proach to the problem, utilizing every technological aid available to his
office. In this manner, it is hoped that the greatest quantity of water pos-
Ssible can be extracted from the Lea County Basin in such a manner that
the residue that cannot be utilized through known extraction methods will
be a minimum.
S The State Engineer's formula was worked up on a theoretical life of 60
years for the Lea County Basin which would, in reality, mean a practical
life of 40 years based upon present calculations. It is realized by the ad-
ministrator that at the end of 40 years there will be a considerable quan-
tity of water which it will be economically unfeasible to pump for irriga-
tionpurposes. It is hoped that this residue will be sufficient for domestic
[ uses for an indefinite period of time. This carries with it a burden upon
the users who will attempt to extract the water after 40 years, of paying
the additional pumping costs. The local economy will have to pay the price
of using the water in just exactly the same way that any other mining econ-
Somy must pay the cost.
It is necessary for the public of Lea County to realize that, as in any
mining economy, within a foreseeable future, the product or resource on
which the economy is based will no longer be present. The administrator
has the responsibility within the spirit of his delegated powers to inform
the public of this matter. If the doctrine of appropriation has any justifi-
cation at all for the change in the western states within the common law
theory of water, it is that the prior appropriation theory affords greater
Flexibility to the economy of the state. Therefore, we submit that it is
within the spirit and not contrary to any letter of the law of appropriation
to administer the waters in a flexible manner in order to meet the demands
L of modern conditions and local situations. We submit that it is a basic
premise of the law of appropriation that the fundamental scientific infor-
mation based upon the latest hydrologic investigations be considered by
Those who administer the water law. If the doctrine of appropriation does
S not have this degree of flexibility, it cannot long survive.
The law of appropriation does not define or give any guidepost as to
What the administrator should or should not do when confronted with a
situation such as that that exists in Lea County. Thus, the State Engineer
was forced to interpret the word "appropriate" in line with the facts of the
Particular basin. He could not interpret the word as it had been used in
artesian basins or as it had been used upon surface streams. In the later
cases, the classical approach has been to interpret the word "appropriate"
to mean something equivalent to the amount of replenishment to the source
S of water; that is, under the pronouncement of the United States Supreme
i Court, only so much water could be appropriated from a particular source
L as is replenishing that source by natural means less the remaining natural
S discharge from that source.







LAW OF WATER ALLOCATION


As a practical matter, perhaps this classical approach has never been
used in the West. I would be willing to venture a challenge that there is
no ground water basin in the western states that does not have more ap-
propriations from a source of water than it has replenishment from the
same source. Webster's definition of appropriation, as far as here per-
tinent, is:
The act of setting apart or assigning to a particular use or person in exclu-
sion of all others. Application to a special use or purpose as of money to carry
on some object.
In the Lea County Basin the administrator used the word in a sense of al-
location. He has allowed as much appropriation as is reasonable with re-
gard to the protection of those who have prior rights. Thus, it is apparent
that the determination of whether there is water to be appropriated re-
quires in essence the balancing or adjusting of the rights of all parties in-
volved. To the State Engineer falls the duty of determining a balance of
the rights of the applicant, other priority users of water from the common
source and of the public generally, in whom title to the economic source
is vested. This is true regardless of the conditions surrounding the source
of the water or the particular facts involved. It is his duty to obtain the
maximum benefits to the public from a particular source of water, while
at the same time safeguarding the rights of other users of the water.
This duty he must carry out under the provisions of the law in the line of
the facts as determined by him.
In considering whether or not the administration of water law in New
Mexico is violative of the theory of appropriation, the general law gov-
erning rules and regulations of a public administrative body should be
pointed out. This rule was set up by Corpus Juris Secundum:13
In passing on the validity of administrative rules and regulations, the only
concern of the court is to ascertain whether the will of the legislature has been
obeyed. Thus the Court should consider such rules and regulations in the light
of the evil which the statute under which they are promulgated seeks to elimi-
nate or control.
Moreover, an administrative rule or regulation must be clearly illegal, or
plainly or palpably inconsistent with law, or clearly in conflict with a statute
relative to the same subject matter, such as the statute it seeks to implement,
in order for the court to declare it void on such ground.
It is only where an administrative rule or regulation is completely without
rational basis, or where it is wholly, clearly, or palpably arbitrary, that the
court will say that it is invalid for such reason.
In further justification of the standards set up by the State Engineer in
Lea County, I would quote the rule from American Jurisprudence as follows:14

13. 73 C.J.S., Public Adminstrative Bodies and Procedures, 104, p. 424.
14. 42 Am. Jur., Public Administrative Law, 93, p. 421.







GROUND WATER ALLOCATION IN LEA COUNTY


An administrative agency having power to grant a privilege under certain
circumstances may adopt a standard as an interpretation of the powers bestowed
upon it, and the court may declare such standard invalid only in the event that it
is so lacking in reason for its promulgation that it is essentially arbitrary.

We have already shown that the doctrine of appropriation was adopted
because it gives greater flexibility to the conditions of the West. The fac-
tors that gave life to the doctrine of appropriation and the exigencies that
made it imperative are forcibly stated in the Utah case of Willey v.
Decker:15
Whether or not it is a beneficent rule, it is the lineal descendant of the law
of necessity. When, from among the most energetic and enterprising classes
of the East, that enormous tide of emigration poured into the West, this was
found an arid land, which could be utilized as an agricultural country, or made
valuable for its gold, only by the use of its streams of water. The new inhab-
itants were without law, but they quickly recognized that each man should not be
a law unto himself. Accustomed, as they had been, to obedience to the laws they
had helped to make, as the settlements increased to such numbers as justified
organization, they established their local customs and rules for their government
in the use of the water and land. They found a new condition of things. The use
of water to which they had been accustomed, and the laws concerning it, had no
application here. The demand for water they found greater than the supply, as is
the unfortunate fact still all over this arid region. Instead of attempting to di-
vide it among all, thus making it unprofitable to any, or instead of applying the
Scommon-law riparian doctrine to which they had been accustomed, they dis-
regarded the traditions of the past, and established as the only rule suitable to
their situation that of prior appropriation: This did not mean that the first ap-
propriator could take what he pleased, but what he actually needed, and could
properly use without waste. Thus was established the local custom, which per-
vaded the entire West and became the basis of the laws we have today on the
S subject. (Emphasis ours.)

It can thus be seen that the law of prior appropriation did not spring
full grown like Minerva from the head of Jupiter. Nor was it adopted to be
S the final definitive rule as were the Ten Commandments given Moses on
Mount Sinai. Every court has pointed out that one of the important factors
in the adoption of the appropriation doctrine was its flexibility.
S Social welfare is implicit in the doctrine. This is seen in the phrases
"beneficial use is the measure, the basis and the limit of the right",
"waste will be enjoined" and "non-use involves forfeiture." This is the
S flexibility that is still inherent in the law.
The modern-day administrators are concerned with getting court defi-
L nations of what is meant by beneficial use and what degree of waste will be
enjoined. As far as I am aware, there has never been a definitive ruling
on beneficial use. It still remains to be determined whether beneficial use
15. Willey v. Decker, 73 Pac. 210.






LAW OF WATER ALLOCATION


means beneficial to society or beneficial to the individual user. Nor would
we know exactly how much waste will be allowed. We do know that all ap-
propriations of water involve some waste. Certainly, there is a great deal
of waste in the use of earthen reservoirs, earthen canals and earthen
ditches. There is no doubt that the legislature, the courts and the admin-
istrators of water will become more and more strict about the definition
of waste as shortages increase.


HYDROLOGY vs. WATER ALLOCATION
IN THE EASTERN UNITED STATES
by Harold E. Thomas*




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