Middle Rio Grande Regional Water Plan

Two other significant domestic well decisions addressed domestic well use within municipalities.
In Smith v. City of Santa Fe, 2007-NMSC-055, 142 N.M. 786, the Supreme Court examined the
authority of the City of Santa Fe to enact an ordinance restricting the drilling of domestic wells.
The Court held that under the City’s home rule powers, it had authority to prohibit the drilling of
a domestic well within the municipal boundaries and that this authority was not preempted by
existing state law.
Then in Stennis v. City of Santa Fe, 2008-NMSC-008, 143 N.M. 320, Santa Fe’s domestic well
ordinance was tested when a homeowner (Stennis) applied for a domestic well permit with the
NMOSE, but did not apply for a permit from the City. In examining the statute allowing
municipalities to restrict the drilling of domestic wells, the Court found that municipalities must
strictly comply with NMSA 1978, Section 3–53–1.1(D) (2001), which requires cities to file their
ordinances restricting the drilling of domestic water wells with the NMOSE. On remand, the
Court of Appeals held that Section 3-53-1.1(D) does not allow for substantial compliance.
Stennis v. City of Santa Fe, 2010-NMCA-108, 149 N.M. 92. Rather, strict compliance is
required and the City must have actually filed a copy of the ordinance with the NMOSE.
In addition to the cases addressing domestic wells, the regulations governing the use of
groundwater for domestic use were substantially amended in 2006 to clarify domestic well use
pursuant to NMSA 1978, Section 72-12-1.1. 19.27.5.1 et seq. NMAC. The regulations:
1. Limit the amount of water that can be used pursuant to a new domestic well permit to:
• 1.0 acre feet per year (ac-ft/yr) for a single household use (can be increased to up to
3.0 ac-ft/yr if the applicant can show that the combined diversion from domestic wells
will not impair existing water rights).
• 1.0 ac-ft/yr for each household served by a well serving more than one household, with a
cap of 3.0 ac-ft/yr if the well serves three or more households.
• 1.0 ac-ft/yr for drinking and sanitary purposes incidental to the operations of a
governmental, commercial, or non-profit facility as long as no other water source is
available. The amount of water so permitted is subject to further limitations imposed by
a court or a municipal or county ordinance.
The amount of water that can be diverted from a domestic well can also be increased by
transferring an existing water right to the well. 19.27.5.9 NMAC.
2. Require mandatory metering of all new domestic wells under certain conditions, such as
when wells are permitted within a domestic well management area, when a court imposes a
metering requirement, when the water use is incidental to the operations of a governmental,
commercial, or non-profit facility, and when the well serves multiple households.
19.27.5.13(C) NMAC.
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