Stokes v. Morgan

• Decision Date: 20 March 1984
• Docket Number: No. 14798,14798
• Parties: Robert STOKES and Calvin Blevins, Protestants-Appellees, v. Robert MORGAN, Applicant-Appellant, and S.E. Reynolds, New Mexico State Engineer, Respondent-Appellee, and Robert STOKES and Calvin Blevins, Protestants-Appellees, v. David C. SANDERS, David C. Sanders, Jr., and The Federal Land Bank of Wichita, Applicants-Appellants, and S.E. Reynolds, New Mexico State Engineer, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 335

680 P.2d 335

101 N.M. 195

Robert STOKES and Calvin Blevins, Protestants-Appellees, v. Robert MORGAN, Applicant-Appellant, and S.E. Reynolds, New Mexico State Engineer, Respondent-Appellee, and Robert STOKES and Calvin Blevins, Protestants-Appellees, v. David C. SANDERS, David C. Sanders, Jr., and The Federal

Land Bank of Wichita, Applicants-Appellants,

and

S.E. Reynolds, New Mexico State Engineer, Respondent-Appellee.

No. 14798.

Supreme Court of New Mexico.

March 20, 1984.

Richard A. Simms, Hinkle, Cox, Eaton, Coffield & Hensley, Santa Fe, for appellants

Joe Parker, Rowley & Hammond, Clovis, for protestants-appellees.

Peter Thomas White, Asst. Atty. Gen., Santa Fe, for respondent State Engineer.

OPINION

FEDERICI, Chief Justice.

This is an action involving two applications for change in point of diversion and place of use of groundwater rights in the Portales Underground Water Basin (Basin). The State Engineer approved the changes and the protestants appealed the decisions to the District Court of Roosevelt County. By agreement of the parties, the actions were combined for trial. In a trial de novo the court ruled in favor of the protestants and denied the transfers. Both applicants appealed the district court decision. We reverse.

On December 1, 1981, the Federal Land Bank of Wichita and David Sanders (Sanders) filed three applications to change the point of diversion and place of use of irrigation rights within the eastern administrative area of the Basin. Calvin Blevins and Robert Stokes (protestants) protested the move pursuant to NMSA 1978, Section 72-12-7, claiming that the move would impair their existing water rights. After an administrative hearing, the State Engineer found that the proposed move would not impair existing water rights and granted the permit to move the point of diversion.

On January 4, 1982, Robert Morgan (Morgan) filed an application for a permit to change the point of diversion of certain wells in the Basin. Protestants objected to this move for the same reasons that they challenged the Sanders application. The State Engineer concluded that the move would not impair existing water rights and granted the permit to move the point of diversion.

In both cases the parties agreed that the quantitative change in the water supply would be insignificant. The real issue in each case was whether termination of pumping at the move-from wells and commencement of pumping at the move-to wells would cause an increase in salinity in neighboring wells which would result in a decrease in crop yields. The Morgan and Sanders applications have three things in common: (1) all of the move-from and move-to locations are located in the eastern administrative area of the Basin; (2) Calvin Blevins and Robert Stokes protested each application; and (3) the important issue in each case is whether the moves would cause an increase in salinity which would constitute impairment of neighboring water rights. Because of these similarities the two cases were consolidated for appeal in the district court. On December 9, 1982, the district court judge rendered a single decision reversing the two orders of the State Engineer. In the appeal to this Court, Morgan and Sanders (applicants) claim that the district court erred in finding impairment, and also erred in the issuance of a single judgment to dispose of two factually distinct applications.

The move-from and move-to locations in these cases are located in the Portales Valley, a broad, shallow depression in the eastern plains area of New Mexico. Surface water in the valley is scarce and consists primarily of relatively small, saline lakes. The Basin is geologically an abandoned river valley filled with alluvial material derived from the Rocky Mountains. Saturated thickness of the aquifer in the area in question varies from 40 to 140 feet. The aquifer is being mined heavily, primarily for irrigation purposes. Water in the southern part of the aquifer is of a lower quality than that to the north. The water quality interface runs generally from the southeast to northwest, from the north of Section 29, Township 2 S., Range 36 E. to the southern half of Section 10, Township 2 S., Range 35 E. See Figure 1 for the approximate location of the interface. The interface appears to coincide with a depression or trough in the water table. The move-from locations of Sanders' wells are south of this interface and the move-to locations and protestants' wells are north of the interface. The Morgan move-from and move-to locations both appear to be north of the interface, although its configuration is not well defined in this area. In the time period from 1962 to 1982 the interface has migrated some distance to the north. Protestants argue that water to the south of the interface is not suitable for irrigation and that granting the Morgan and Sanders applications will accelerate the rate of intrusion of salt water into the aquifer underlying their wells. Protestants claim that this acceleration will shorten the effective lives of their wells and that this reduction in life expectancy constitutes impairment of their rights.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In a case such as this there are two separate bases upon which a showing of no impairment may be founded. The first is that the proposed increase in pumping will not significantly accelerate the rate of intrusion of poor quality water. The second is that the quality of the intruding water is still good enough to be used for existing purposes.

The rate of movement of water within an aquifer has been studied and a simple relationship between the hydrostatic gradient and water velocity has been found. This relationship generally follows Darcy's Law. ¹

The rate of intrusion is important because, as this Court has previously recognized, "the beneficial use by the public of the waters in a closed or non-rechargeable basin requires giving to the use of such waters a time limitation." Mathers v. Texaco, Inc., 77 N.M. 239, 245, 421 P.2d 771, 776 (1966). The supply of water available from the shallow nonrecharging aquifer system of the Basin is primarily limited to stored water that has accumulated in the aquifer system over a period of several thousand years. At the present time water is being mined from the aquifer at a rate which is significantly higher than the recharge rate. Therefore, the aquifer has a finite life expectancy.

The State Engineer has developed a system of administration for the Basin which is intended to provide a reasonable measure of protection to existing water rights without unduly restricting the full economic utilization of existing water supplies in the Basin. S. Galloway and J. Wright, Administration of Water Rights, Portales Valley Underground Water Basin, New Mexico 17 (Office of the State Engineer, 1968) (introduced as State's Exhibit No. 5). For purposes of administration, townships within the Basin were divided into nine square units of four sections each. Life expectancies for each block were calculated by dividing the average effective saturated thickness of the aquifer by the average annual historical water level change beneath the block. Decisions as to whether to allow additional appropriations are based on the life expectancy of the administrative block and immediately surrounding blocks. If the life expectancy is calculated to be less than 40 years from 1956, the block is considered to be fully appropriated. Id. at 24. Although this system obviously does not take into account water quality problems, it nonetheless indicates a time frame which should be considered in a determination of whether an increased rate of intrusion constitutes impairment.

The second important consideration in salinity impairment cases is the quantification of acceptable levels of degradation in water quality. Applicants contend that impairment, in the context of agricultural water use, should be defined as a decrease in crop yield. Applicants argue that any increase in salinity in protestants' wells which does not result in decreased productivity does not constitute impairment. This appears to be the standard that was followed in City of Roswell v. Reynolds, 86 N.M. 249, 522 P.2d 796 (1974). Protestants contend, on the other hand, that lower salinity water is always preferable to higher salinity water for agricultural purposes and that any measurable increase in salinity necessarily constitutes impairment. The actual determination of whether an increase in salinity constitutes impairment is more complex than either party suggests.

An argument presented by applicants is that an increase in salinity is analogous to a lowering of the level of the water table (or a decrease in pressure in an artesian aquifer). This Court has held that a lowering of the water table does not necessarily constitute impairment of the water rights of adjoining appropriators. Mathers v. Texaco, Inc., 77 N.M. 239, 421 P.2d 771 (1966); Application of Brown, 65 N.M. 74, 332 P.2d 475 (1958). It is not clear that this analogy is a good one. A lowering of the water table may require existing wells to be deepened or pumping lift increased. Although this places an increased economic burden on owners of existing wells, it does not normally destroy the usefulness of the well. Generally, wells which must be retired from agricultural use because of insufficient quantities of water for irrigation may still produce enough water for domestic use. Increased salinity, however, has been recognized as a more serious, long-lasting problem in the underground water supply.

Because of the relatively slow movement of ground water, saltwater intrusion may detrimentally affect [the quality of the water in the aquifer] for years under the most favorable circumstances, or many decades in other cases. The movement of poor quality water into fresh water supplies is generally considered a more serious problem than ground...