45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO PUBLIC PEACE, HEALTH, SAFETY AND WELFARE; AMENDING SECTION 72-12-1 NMSA 1978 (BEING LAWS 1931, CHAPTER 131, SECTION 1, AS AMENDED) TO CHANGE PROVISIONS RELATING TO APPROPRIATION OF UNDERGROUND WATERS.

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.--The water of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries, are declared to be public waters and to belong to the public and to be 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 that may include a residential garden not to exceed one acre in size; 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:

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 that may include a residential garden not to exceed one acre in size shall make application to the state engineer on a form to be prescribed by him and 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], except as otherwise provided in this section;

B. 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]

C. the state engineer may deny an application or condition a new permit to limit the amount or use of water for household or other domestic use in those areas of the state defined as a critical management area as follows:

(1) the state engineer may declare a critical management area having reasonable ascertainable boundaries when declaration of a critical management area is necessary to prevent impairment of existing water rights or where new uses of water are likely to affect the state's obligations pursuant to an interstate compact;

(2) declaration of a critical management area shall be made in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978; and

(3) in addition to transfers of water authorized pursuant to Chapter 72 NMSA 1978, in critical management areas, a person may transfer an existing water right to household or other domestic use without complying with the public notice provisions in Section 72-5-4 NMSA 1978 if:

(a) the amount of water right transferred is less than three-acre feet, complies with applicable municipal and county ordinances and serves no more than four households; and

(b) the state engineer approves the transfer pursuant to the criteria set forth in Sections 72-5-6 and 72-12-3 NMSA 1978 and the state engineer finds that there will be no new net depletions of water;

D. 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.] E. 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."