0001| HOUSE BILL 482 | 0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998 | 0003| INTRODUCED BY | 0004| STEVEN E. PEARCE | 0005| | 0006| | 0007| | 0008| FOR THE WATER, UTILITIES AND NATURAL RESOURCES COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO WATER; REQUIRING NOTICE TO MUNICIPALITIES AND | 0012| COUNTIES WITH JURISDICTION IN THE LOCATIONS OF PROPOSED WATER | 0013| RIGHTS DIVERSIONS AND TRANSFERS; AMENDING CERTAIN SECTIONS OF | 0014| THE NMSA 1978. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 72-5-4 NMSA 1978 (being Laws 1907, | 0018| Chapter 49, Section 26, as amended) is amended to read: | 0019| "72-5-4. ~[151-132. Id.]~ NOTICE ~[PUBLICATION]~.-- | 0020| |A.| Upon the filing of an application ~[which]~ | 0021| |that| complies with the provisions of this article and | 0022| ~[the]~ rules ~[and regulations]~ established ~[thereunder]~ | 0023| |by the state engineer|, accompanied by the proper fees, the | 0024| state engineer shall instruct the applicant to: | 0025| |(1)| publish notice ~[thereof, in a form | - 1 - 0001| prescribed by him]~ |of the application| in ~[some newspaper]~ | 0002| |two newspapers| of general circulation in the ~[stream | 0003| system]~ |county where the requested appropriation is to be | 0004| located| once a week for three consecutive weeks ~[Such notice | 0005| shall give all essential facts as to the proposed | 0006| appropriation; among them, the places of appropriation and of | 0007| use, amount of water, the purpose for which it is to be used, | 0008| name and address of applicant and the time when the | 0009| application shall be taken up by the state engineer for | 0010| consideration. Proof]~; | | 0011| (2) provide written notice of the application | 0012| to each municipality and county having jurisdiction in the | 0013| county where the requested appropriation is to be located, by | 0014| certified, return receipt requested mail, addressed to the | 0015| clerk of each municipality or county provided notice; and | 0016| (3) provide written notice of the application | 0017| to a political subdivision of the state within the county | 0018| where the requested appropriation is to be located that has | 0019| registered with the state engineer to receive notice, by | 0020| certified, return receipt requested mail. | 0021| B. The notice of the application shall state the | 0022| facts of the proposed application, including the places of | 0023| appropriation, the use of the appropriation proposed, the | 0024| amount of water proposed to be appropriated and the name and | 0025| address of the applicant. The notice shall state that | - 2 - 0001| objections or protests to the granting of the application may | 0002| be filed within ten days after the date of the last | 0003| publication of the notice or after the date of the written | 0004| notice provided, whichever is later. | 0005| C. Proofs| of publication ~[as required]~ |and | 0006| mailed written notice| shall be filed with the state engineer | 0007| within sixty days of his instructions |to the applicant| to | 0008| make publication. ~[In case of]~ Failure to |timely| file | 0009| satisfactory proof of publication ~[in accordance with the | 0010| rules and regulations applicable thereto, within the time | 0011| required]~ |shall cause| the application ~[shall thereafter]~ | 0012| |to| be treated as ~[an original application]~ filed on the | 0013| date of |actual| receipt |by the state engineer| of|| proofs | 0014| of publication |and notice| in proper form. | 0015| |D. The state engineer may post notice of the | 0016| application on the internet. | 0017| E. The state engineer shall promulgate rules to | 0018| implement the provisions of this section providing for | 0019| publication and written mailed notice.|" | 0020| Section 2. Section 72-5-5 NMSA 1978 (being Laws 1965, | 0021| Chapter 285, Section 6, as amended) is amended to read: | 0022| "72-5-5. OBJECTIONS TO APPLICATIONS--~[PUBLICATION OF | 0023| NOTICE]~ FILING OF PROTESTS--DEFINITION OF STANDING.-- | 0024| A. ~[Whenever an application is filed which | 0025| requires advertisement by virtue of the provisions of Chapter | - 3 - 0001| 72, Article 5 NMSA 1978, the advertisement shall state that | 0002| objections or protests to the granting of the application may | 0003| be filed with the state engineer within ten days after the | 0004| last publication of the notice.]~ If |an| objection or protest | 0005| |to an application filed pursuant to Chapter 72, Article 5 | 0006| NMSA 1978| is timely filed, the state engineer shall advise | 0007| interested parties, and a hearing shall be held as otherwise | 0008| provided by statute. | 0009| B. Any person, firm or corporation or other entity | 0010| objecting that the granting of the application will be | 0011| detrimental to the objector's water right shall have standing | 0012| to file objections or protests. Any person, firm or | 0013| corporation or other entity objecting that the granting of the | 0014| application will be contrary to the conservation of water | 0015| within the state or detrimental to the public welfare of the | 0016| state and showing that the objector will be substantially and | 0017| specifically affected by the granting of the application shall | 0018| have standing to file objections or protests. Provided, | 0019| however, that the state of New Mexico or any of its branches, | 0020| agencies, departments, boards, instrumentalities or | 0021| institutions and all political subdivisions of the state and | 0022| their agencies, instrumentalities and institutions shall have | 0023| standing to file objections or protests." | 0024| Section 3. Section 72-5-23 NMSA 1978 (being Laws 1907, | 0025| Chapter 49, Section 44, as amended) is amended to read: | - 4 - 0001| "72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF | 0002| USE--|PUBLICATION AND WRITTEN NOTICE OF APPLICATION|.-- | 0003| |A.| All water used in this state for irrigation | 0004| purposes, except as otherwise provided in this article, shall | 0005| be considered appurtenant to the land upon which it is used, | 0006| and the right to use it upon the land shall never be severed | 0007| from the land without the consent of the owner of the land, | 0008| but, by and with the consent of the owner of the land, all or | 0009| any part of the right may be severed from the land, | 0010| simultaneously transferred and become appurtenant to other | 0011| land, or may be transferred for other purposes, without losing | 0012| priority of right theretofore established, if such changes can | 0013| be made without detriment to existing water rights and are not | 0014| contrary to conservation of water within the state and not | 0015| detrimental to the public welfare of the state, on the | 0016| approval of an application of the owner by the state engineer. | 0017| ~[Publication of]~ | 0018| |B.| Notice of |the| application, |by both | 0019| publication and written notice|, opportunity for the filing of | 0020| objections or protests and a hearing on the application shall | 0021| be provided as required by Sections 72-5-4 and 72-5-5 NMSA | 0022| 1978 |for both the move-from location and the move-to location | 0023| of the transfer if those locations are in different | 0024| counties|." | 0025| Section 4. Section 72-12-3 NMSA 1978 (being Laws 1931, | - 5 - 0001| Chapter 131, Section 3, as amended) is amended to read: | 0002| "72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER-- | 0003| PUBLICATION OF NOTICE--PERMIT.-- | 0004| A. Any person, firm or corporation or any other | 0005| entity desiring to appropriate for beneficial use any of the | 0006| waters described in Chapter 72, Article 12 NMSA 1978 shall | 0007| apply to the state engineer in a form prescribed by him. In | 0008| the application, the applicant shall designate: | 0009| (1) the particular underground stream, | 0010| channel, artesian basin, reservoir or lake from which water | 0011| will be appropriated; | 0012| (2) the beneficial use to which the water | 0013| will be applied; | 0014| (3) the location of the proposed well; | 0015| (4) the name of the owner of the land on | 0016| which the well will be located; | 0017| (5) the amount of water applied for; | 0018| (6) the place of the use for which the water | 0019| is desired; and | 0020| (7) if the use is for irrigation, the | 0021| description of the land to be irrigated and the name of the | 0022| owner of the land. | 0023| B. If the well will be located on privately owned | 0024| land and the applicant is not the owner of the land or the | 0025| owner or the lessee of the mineral or oil and gas rights under | - 6 - 0001| the land, the application shall be accompanied by an | 0002| acknowledged statement executed by the owner of the land that | 0003| the applicant is granted access across the owner's land to the | 0004| drilling site and has permission to occupy such portion of the | 0005| owner's land as is necessary to drill and operate the well. | 0006| This subsection does not apply to the state or any of its | 0007| political subdivisions. If the application is approved, the | 0008| applicant shall have the permit and statement, executed by the | 0009| owner of the land, recorded in the office of the county clerk | 0010| of the county in which the land is located. | 0011| C. No application shall be accepted by the state | 0012| engineer unless it is accompanied by all the information | 0013| required by Subsections A and B of this section. | 0014| D. Upon the filing of an application, the state | 0015| engineer shall ~[cause to be published in a newspaper]~ | 0016| |instruct the applicant to:| | 0017| (1) publish notice of the application in two | 0018| newspapers of general circulation in the county in which the | 0019| well will be located, at least once a week for three | 0020| consecutive weeks ~[a notice that the application has been | 0021| filed and that objections to the granting of the application | 0022| may be filed within ten days after the last publication of the | 0023| notice]~; || | 0024| |(2) provide written notice of the | 0025| application to each municipality and county having | - 7 - 0001| jurisdiction in the county where the requested appropriation | 0002| is to be located, by certified, return receipt requested mail, | 0003| addressed to the clerk of each municipality or county provided | 0004| notice; and | 0005| (3) provide written notice of the application | 0006| to a political subdivision of the state within the county | 0007| where the requested appropriation is to be located that has | 0008| registered with the state engineer to receive notice by | 0009| certified, return receipt requested mail.| | 0010| E. The notice of the application shall state the | 0011| facts of the proposed application, including the diversion | 0012| locations of the appropriation, the use of the appropriation | 0013| proposed, the amount of water proposed to be appropriated and | 0014| the name and address of the applicant. The notice shall state | 0015| that objections or protests to the granting of the application | 0016| may be filed within ten days after the date of the last | 0017| publication of the notice or after the date of the written | 0018| notice provided, whichever is later. | | 0019| F. The state engineer may post notice of the | 0020| application on the internet. | 0021| G. The state engineer shall promulgate rules to | 0022| implement the provisions of this section providing for | 0023| publication and written mailed notice.| | 0024| |H.| Any person, firm or corporation or other | 0025| entity objecting that the granting of the application will | - 8 - 0001| impair the objector's water right shall have standing to file | 0002| objections or protests. Any person, firm or corporation or | 0003| other entity objecting that the granting of the application | 0004| will be contrary to the conservation of water within the state | 0005| or detrimental to the public welfare of the state and showing | 0006| that the objector will be substantially and specifically | 0007| affected by the granting of the application shall have | 0008| standing to file objections or protests. Provided, however, | 0009| that the state of New Mexico or any of its branches, agencies, | 0010| departments, boards, instrumentalities or institutions, and | 0011| all political subdivisions of the state and their agencies, | 0012| instrumentalities and institutions shall have standing to file | 0013| objections or protests. | 0014| ~[E.]~ |I.| After the expiration of the time for | 0015| filing objections, if no objections have been filed, the state | 0016| engineer shall, if he finds that there are in the underground | 0017| stream, channel, artesian basin, reservoir or lake | 0018| unappropriated waters or that the proposed appropriation would | 0019| not impair existing water rights from the source, is not | 0020| contrary to conservation of water within the state and is not | 0021| detrimental to the public welfare of the state, grant the | 0022| application and issue a permit to the applicant to appropriate | 0023| all or a part of the waters applied for, subject to the rights | 0024| of all prior appropriators from the source. | 0025| ~[F.]~ |J.| If objections or protests have been | - 9 - 0001| filed within the time prescribed in the notice or if the state | 0002| engineer is of the opinion that the permit should not be | 0003| issued, the state engineer may deny the application without a | 0004| hearing or, before he acts on the application, may order that | 0005| a hearing be held. He shall notify the applicant of his | 0006| action by certified mail sent to the address shown in the | 0007| application." | 0008| Section 5. Section 72-12-7 NMSA 1978 (being Laws 1931, | 0009| Chapter 131, Section 7, as amended) is amended to read: | 0010| "72-12-7. CHANGE OF LOCATION OF WELL--CHANGE IN USE ON | 0011| APPLICATION--TEMPORARY CHANGE.-- | 0012| A. The owner of a water right may change the | 0013| location of his well or change the use of the water, but only | 0014| upon application to the state engineer and upon showing that | 0015| the change will not impair existing rights and will not be | 0016| contrary to the conservation of water within the state and | 0017| will not be detrimental to the public welfare of the state. | 0018| The application may be granted only after such | 0019| ~[advertisement]~ |notices for both the move-from location and | 0020| the move-to location of the transfer, if those locations are | 0021| in different counties|, and hearing as are prescribed in the | 0022| case of original applications. | 0023| B. When the owner of a water right applies for a | 0024| temporary change of not to exceed one year for not more than | 0025| three acre-feet of water to a different location or to a | - 10 - 0001| different use, or both, the state engineer shall make an | 0002| investigation and, if the change does not permanently impair | 0003| any vested rights of others, he shall enter an order | 0004| authorizing the change. If he finds that the change sought | 0005| might impair vested rights, he shall order ~[advertisement]~ | 0006| |notices for both the move-from location and the move-to | 0007| location of the transfer, if those locations are in different | 0008| counties|, and hearing as in other cases. | 0009| C. If objections or protests have been filed | 0010| within the time prescribed in the ~[notice]~ |notices| or if | 0011| the state engineer is of the opinion that the permit should | 0012| not be issued, the state engineer may deny the application or, | 0013| before he acts on the application, may order that a hearing be | 0014| held. He shall notify the applicant of his action by | 0015| certified mail sent to the address shown in the application." | 0016| Section 6. Section 72-12B-1 NMSA 1978 (being Laws 1983, | 0017| Chapter 2, Section 1, as amended) is amended to read: | 0018| "72-12B-1. APPLICATIONS FOR THE TRANSPORTATION AND USE | 0019| OF PUBLIC WATERS OUTSIDE THE STATE.-- | 0020| A. The state of New Mexico has long recognized the | 0021| importance of the conservation of its public waters and the | 0022| necessity to maintain adequate water supplies for the state's | 0023| water requirements. The state of New Mexico also recognizes | 0024| that under appropriate conditions the out-of-state | 0025| transportation and use of its public waters is not in conflict | - 11 - 0001| with the public welfare of its citizens or the conservation of | 0002| its waters. | 0003| B. Any person, firm or corporation or any other | 0004| entity intending to withdraw water from any surface or | 0005| underground water source in the state of New Mexico and | 0006| transport it for use outside the state or to change the place | 0007| or purpose of use of a water right from a place in New Mexico | 0008| to a place out of that state shall apply to the state engineer | 0009| for a permit to do so. Upon the filing of an application, the | 0010| state engineer shall cause to be published in ~[a newspaper]~ | 0011| |two newspapers| of general circulation in the county in which | 0012| the well will be located or ~[the stream system]~ from | 0013| ~[which]~ |where| surface water will be taken, at least once a | 0014| week for three consecutive weeks, a notice that the | 0015| application has been filed and that objections to the granting | 0016| of the application may be filed within ten days after the last | 0017| publication of the notice. |The state engineer shall require | 0018| the applicant to provide written notice of the application to | 0019| a political subdivision of the state within the county where | 0020| the requested appropriation is to be located that has | 0021| registered with the state engineer to receive notice, by | 0022| certified, return receipt requested mail; and to each | 0023| municipality and county having jurisdiction in the county | 0024| where the requested appropriation is to be located, by | 0025| certified, return receipt requested mail, addressed to the | - 12 - 0001| clerk of each municipality or county provided notice. The | 0002| state engineer may post notice of the application on the | 0003| internet.| Any person, firm or corporation or other entity | 0004| objecting that the granting of the application would impair or | 0005| be detrimental to the objector's water right shall have | 0006| standing to file objections or protests. Any person, firm or | 0007| corporation or other entity objecting that the granting of the | 0008| application will be contrary to the conservation of water | 0009| within the state or detrimental to the public welfare of the | 0010| state and showing that the objector will be substantially and | 0011| specifically affected by the granting of the application shall | 0012| have standing to file objections or protests. Provided, | 0013| however, that the state of New Mexico or any of its branches, | 0014| agencies, departments, boards, instrumentalities or | 0015| institutions, and all political subdivisions of the state and | 0016| their agencies, instrumentalities and institutions shall have | 0017| standing to file objections or protests. The state engineer | 0018| shall accept for filing and act upon all applications filed | 0019| under this section in accordance with the provisions of this | 0020| section. The state engineer shall require notice of the | 0021| application and shall thereafter proceed to consider the | 0022| application in accordance with existing administrative law and | 0023| procedure governing the appropriation of surface or ground | 0024| water. | 0025| C. In order to approve an application under this | - 13 - 0001| act, the state engineer must find that the applicant's | 0002| withdrawal and transportation of water for use outside the | 0003| state would not impair existing water rights, is not contrary | 0004| to the conservation of water within the state and is not | 0005| otherwise detrimental to the public welfare of the citizens of | 0006| New Mexico. | 0007| D. In acting upon an application under this act, | 0008| the state engineer shall consider, but not be limited to, the | 0009| following factors: | 0010| (1) the supply of water available to the | 0011| state of New Mexico; | 0012| (2) water demands of the state of New Mexico; | 0013| (3) whether there are water shortages within | 0014| the state of New Mexico; | 0015| (4) whether the water that is the subject of | 0016| the application could feasibly be transported to alleviate | 0017| water shortages in the state of New Mexico; | 0018| (5) the supply and sources of water available | 0019| to the applicant in the state where the applicant intends to | 0020| use the water; and | 0021| (6) the demands placed on the applicant's | 0022| supply in the state where the applicant intends to use the | 0023| water. | 0024| E. By filing an application to withdraw and | 0025| transport waters for use outside the state, the applicant | - 14 - 0001| shall submit to and comply with the laws of the state of New | 0002| Mexico governing the appropriation and use of water. | 0003| F. The state engineer is empowered to condition | 0004| the permit to ~[insure]~ |ensure| that the use of water in | 0005| another state is subject to the same regulations and | 0006| restrictions that may be imposed upon water use in the state | 0007| of New Mexico. | 0008| G. Upon approval of the application, the applicant | 0009| shall designate an agent in New Mexico for reception of | 0010| service of process and other legal notices." | 0011|  |