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

RELATING TO WATER; CHANGING PROCEDURES FOR MUNICIPALITIES TO CHANGE THE PLACE AND PURPOSE OF USE OF WATER RIGHTS FOR MUNICIPAL USE; PROVIDING FOR METHODS OF ACQUISITION OF WATER BY MUNICIPALITIES.

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

Section 1. Section 72-5-23 NMSA 1978 (being Laws 1907, Chapter 49, Section 44, as amended) is amended to read:

"72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF USE.--All water used in this state for irrigation purposes, except as otherwise provided in this article, shall be considered appurtenant to the land upon which it is used, and the right to use it upon the land shall never be severed from the land without the consent of the owner of the land, but, by and with the consent of the owner of the land, all or any part of the right may be severed from the land, simultaneously transferred and become appurtenant to other land, or may be transferred for other purposes, without losing priority of right theretofore established, if such changes can be made without detriment to existing water rights and are not contrary to conservation of water within the state and not detrimental to the public welfare of the state, on the approval of an application of the owner by the state engineer. Publication of notice of application, opportunity for the filing of objections or protests and a hearing on the application shall be provided as required by Sections 72-5-4 and 72-5-5 NMSA 1978, or in the case of a change to municipal use by a municipality, as provided in Section 72-5-24 NMSA 1978."

Section 2. Section 72-5-24 NMSA 1978 (being Laws 1907, Chapter 49, Section 45, as amended) is amended to read:

"72-5-24. CHANGE OF PURPOSE--CHANGE OF POINT OF DIVERSION--CHANGE TO MUNICIPAL USE.--

A. An appropriator of water may, with the approval of the state engineer, use the same for other than the purpose for which it was appropriated or may change the place of diversion, storage or use in the manner and under the conditions prescribed in Sections 72-5-3 and 72-5-23 NMSA 1978.

B. A municipality may change the place or purpose of use or point of diversion of an existing water right pursuant to the following requirements:

(1) the municipality submits all information required by the state engineer in its application and, before issuing a permit approving the change, the state engineer:

(a) determines the change will not impair existing water rights, be contrary to conservation of water within the state or be detrimental to the public welfare of the state; or

(b) places conditions or limits on the permit that ensure that any change allowed will not impair existing water rights, be contrary to conservation of water within the state or be detrimental to the public welfare of the state;

(2) upon state engineer approval of the application the municipality shall publish notice, in a form and in a newspaper prescribed by the state engineer, in some newspaper that is published and distributed in each county affected by the change and in each county where the water will be or has been put to beneficial use, or if there is no such newspaper, then in some newspaper of general circulation in the stream system, once a week for three consecutive weeks. The notice shall contain a description of the application and terms of the permit;

(3) within ten days of the final publication of notice, a person, firm or corporation or other entity objecting that the permitted change will impair the objector's water right shall have standing to file objections or protests, and a person, firm or corporation or other entity objecting that the permitted change will be contrary to the conservation of water within the state or detrimental to the public welfare of the state and showing that the objector will be substantially and specifically affected by the granting of the application shall have standing to file objections or protests with the state engineer; provided, however, that the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions, shall have standing to file objections or protests;

(4) if the protestant shows that the permitted change will impair the protestant's water right, or shows that it will be contrary to the conservation of water within the state or detrimental to the public welfare of the state and that the protestant will be substantially and specifically affected by the permitted change, the state engineer shall modify the permit to address the protestant's objection; and

(5) the municipality shall comply with all conditions of the permit before it puts the water to beneficial use."

Section 3. Section 72-12-7 NMSA 1978 (being Laws 1931, Chapter 131, Section 7, as amended) is amended to read:

"72-12-7. CHANGE OF LOCATION OF WELL--CHANGE IN USE ON APPLICATION--TEMPORARY CHANGE.--

A. Except as provided in Subsection B of this section, the owner of a water right may change the location of his well or change the use of the water, but only upon application to the state engineer and upon showing that the change will not impair existing rights and will not be contrary to the conservation of water within the state and will not be detrimental to the public welfare of the state. The application may be granted only after such advertisement and hearing as are prescribed in the case of original applications.

B. A municipality may change the location of a well and place and purpose of use of the water in accordance with the provisions of Section 72-5-24 NMSA 1978.

[B.] C. When the owner of a water right applies for a temporary change of not to exceed one year for not more than three acre-feet of water to a different location or to a different use, or both, the state engineer shall make an investigation and, if the change does not permanently impair any vested rights of others, he shall enter an order authorizing the change. If he finds that the change sought might impair vested rights, he shall order advertisement and hearing as in other cases.

[C.] D. If objections or protests have been filed within the time prescribed in the notice or if the state engineer is of the opinion that the permit should not be issued, the state engineer may deny the application or, before he acts on the application, may order that a hearing be held. He shall notify the applicant of his action by certified mail sent to the address shown in the application."

Section 4. A new section of Chapter 72 NMSA 1978 is enacted to read:

"[NEW MATERIAL] METHODS OF ACQUISITION BY MUNICIPALITIES--CONDEMNATION--CONVEYANCES AUTHORIZED--LAND FOR APPURTENANCES--PUBLIC AND PRIVATE USE--COMPENSATION.--

A. Municipalities, within and without the municipal boundary, may:

(1) acquire, contract for or condemn:

(a) springs;

(b) wells;

(c) water rights;

(d) other water supplies; and

(e) right-of-way or other necessary ownership for the acquisition of water facilities;

(2) acquire, maintain, contract for or condemn for use as a municipal utility privately owned water facilities used or to be used for the furnishing and supply of water to the municipality or its inhabitants; and

(3) change the place of diversion of any water to any place selected by the municipality in order to make the water available to the municipality.

B. For the purposes stated in Section 3-27-3 NMSA 1978, a municipality may take water from any stream, gulch or spring. If the taking of the water materially interferes with or impairs the vested right of any person who resides on the creek, gulch or stream or does milling or manufacturing on the creek, gulch or stream, the municipality shall obtain the consent of the person with the vested right or acquire the vested right by condemnation and make full compensation or satisfaction for all damages occasioned to the person.

C. A person may lawfully convey to a municipality any water, water right and ditch right or any interest in any water, water right and ditch right held or claimed by the grantor. A change of use of the water, water right, place of diversion or purpose for which the water or water right was originally acquired by the grantor shall not invalidate the right of the municipality to use the water or water right.

D. Proceedings to obtain any condemnation authorized in this section shall be in the manner provided by law."