46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO WATER; PROVIDING FOR THE MANAGEMENT OF DOMESTIC WELLS; PROVIDING FOR A PENALTY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. Section 72-12-1 NMSA 1978 (being Laws 1931, Chapter 131, Section 1, as amended) is amended to read:

"72-12-1. UNDERGROUND WATERS DECLARED TO BE PUBLIC--APPLICATIONS FOR [USE TO STATE ENGINEER--HEARINGS] LIVESTOCK WATERING, DOMESTIC AND TEMPORARY USES OF WATER.--The water of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries, [are declared to be public waters and to belong] belongs to the public and [to be] is subject to appropriation for beneficial use. By reason of the varying amounts and time such water is used and the relatively small amounts of water consumed in the watering of livestock; [in irrigation of not to exceed one acre of noncommercial trees, lawn or garden] in household or other domestic use; and in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural resources of the state, application for any such use shall be governed by the [following] provisions of Sections 72-12-1.1 through 72-12-1.3 NMSA 1978.

[A. A person, firm or corporation desiring to use public waters described in this section for watering livestock, for irrigation of not to exceed one acre of noncommercial trees, lawn or garden or for household or other domestic use shall make application to the state engineer on a form to be prescribed by him. Upon the filing of each application describing the use applied for, the state engineer shall issue a permit to the applicant to so use the waters applied for provided that permits for domestic water use within municipalities shall be conditioned to require the permittee to comply with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978; and provided that as part of an application for livestock watering use on state or federal land, the applicant shall submit proof that he:

(1) is legally entitled to place his livestock on the state or federal land where the water is to be used; and

(2) has been granted access to the drilling site and has permission to occupy the portion of the state or federal land as is necessary to drill and operate the well; and

B. Whenever a person, firm or corporation or the state desires to use not to exceed three acre-feet of public water described in this section for a definite period of not to exceed one year in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural mineral resources of the state, only the application referred to in

Section 72-12-3 NMSA 1978 shall be required. Separate application shall be made for each proposed use, whether in the same or in different basins. Upon the filing of an application, the state engineer shall make an examination of the facts and, if he finds that the proposed use will not permanently impair any existing rights of others, he shall grant the application. If he finds that the proposed use sought will permanently impair such rights, then there shall be advertisement and hearing as provided in the case of applications made under Section 72-12-3 NMSA 1978.]"

Section 2. A new Section 72-12-1.1 NMSA 1978 is enacted to read:

"72-12-1.1. [NEW MATERIAL] UNDERGROUND PUBLIC WATERS--DOMESTIC WELL PERMITS.--

A. As used in this section:

(1) "domestic well" means a household well or shared household well;

(2) "household well" means a well used to provide water for use inside a single family residence and for use outside that residence for ordinary purposes related to the enjoyment of the residence, including landscaping, lawn and garden uses totaling no more than one acre in size;

(3) "limited use area" means a bounded area that requires heightened protection because water resources may be inadequate to sustain well production as evidenced by:

(a) excessive drawdown rates; or

(b) reduced aquifer thickness such that new depletions are in an amount sufficient to impair the rights of existing water users; and

(4) "shared household well" means a well shared by more than one single family residence for uses allowed for a household well.

B. The state engineer may declare a limited use area in specific areas in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978. Additionally, declaration of a limited use area shall require that the state engineer mail by certified mail, return postage pre-paid, written notice to all property owners of record in the legal description of the area covered by the limited use area at least thirty days, and not more than forty-five days, prior to the hearing. The state engineer shall also mail written notice to all other persons claiming an interest in any property in the proposed limited use area who have filed a written request for a copy of a notice within six months preceding the date of the hearing. The state engineer shall execute an affidavit of mailing, state the date of mailing and the names and addresses of the persons to whom the notices and copies of the notices were mailed. A limited use area designation is subject to future revision upon petition from a political subdivision of the state filed with the state engineer. The petition shall be considered in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978.

C. A person desiring to use the underground public waters of the state for domestic purposes shall make an application to the state engineer on a form prescribed by the state engineer for a domestic well permit. Upon filing of the application, the state engineer shall issue a domestic well permit for the use of water for domestic purposes to the applicant, provided that:

(1) permits for domestic water use within municipalities shall be conditioned to require the permittee to comply with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978;

(2) a household well shall be limited to a maximum water withdrawal of one acre-foot per year and only one single family household may be served by the well. Except as provided in Subsection E of this section, the permit holder shall be required to install a meter and file periodic reports of water use with the state engineer;

(3) a shared household well shall be limited to a maximum water withdrawal of three acre-feet per year, regardless of the number of households sharing the well. The permit holder shall be required to install a meter, and he or his agent shall report to the state engineer those households that are being served by the well along with periodic reports of water use;

(4) a permit for a household well located in a limited use area shall be limited to a diversion amount not to exceed one-half acre-foot per year. Except as provided in Subsection E of this section, the permit holder shall be required to install a meter and file periodic reports of water use with the state engineer; and

(5) a permit for a shared household well that is located in a limited use area shall be limited to a maximum water withdrawal of three acre-feet per year. Except as provided in Subsection E of this section, the permit holder shall be required to install a meter, and he or his agent shall report to the state engineer those households that are being served by the well along with periodic reports of water use.

D. The state engineer shall adopt reporting requirements, filing intervals and verification of usage procedures for household wells and shared household wells.

E. Persons issued permits for single household uses prior to July 1, 2003 shall be allowed to use an amount of water not to exceed three acre-feet per year and shall not be required to meter their wells, except as required by local or county ordinance.

F. If the state engineer determines that a household well permitted after July 1, 2003 is exceeding its permitted water usage, he shall assess the permittee a fine of one thousand dollars ($1,000) per acre-foot or an alternate equivalent amount, plus any administrative costs, for the amount in excess of permitted usage. A fine shall be assessed in writing within twenty-four months of the excess usage and if not paid, the state engineer may establish a lien against all properties served or benefited by the well's water at the time of excess usage."

Section 3. A new Section 72-12-1.2 NMSA 1978 is enacted to read:

"72-12-1.2. [NEW MATERIAL] UNDERGROUND PUBLIC WATERS--LIVESTOCK WELL PERMITS.--A person, firm or corporation desiring to use public underground waters for watering livestock shall make an application to the state engineer on a form prescribed by the state engineer for a livestock well permit. Upon filing of the application, the state engineer shall issue a livestock well permit for the use of water for watering livestock to the applicant, provided that as part of an application for livestock watering use on state or federal land, the applicant submits proof that the applicant:

A. is legally entitled to place livestock on the state or federal land where the water is to be used; and

B. has been granted access to the drilling site and has permission to occupy the portion of the state or federal land as is necessary to drill and operate the well."

Section 4. A new Section 72-12-1.3 NMSA 1978 is enacted to read:

"72-12-1.3. [NEW MATERIAL] UNDERGROUND PUBLIC WATERS--TEMPORARY USES.--If a person, firm, corporation or the state desires to use underground public water in an amount not to exceed three acre-feet for a definite period of not to exceed one year in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural mineral resources of the state, only the application referred to in Section 72-12-3 NMSA 1978 shall be required. Separate application shall be made for each proposed use, whether in the same or in different basins. Upon the filing of an application, the state engineer shall make an examination of the facts and, if the finds that the proposed use will not permanently impair any existing rights of others, he shall grant the application. If he finds that the proposed use sought will permanently impair such rights, then there shall be advertisement and hearing as provided in the case of applications made under Section 72-12-3 NMSA 1978."

Section 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.