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

RELATING TO WATER; PROVIDING FOR THE MANAGEMENT OF DOMESTIC WELLS IN CRITICAL MANAGEMENT AREAS; ESTABLISHING PROCEDURES FOR CHANGES IN PLACE AND PURPOSE OF USE OF WATER RIGHTS TO DOMESTIC USES; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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] 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.

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--CRITICAL MANAGEMENT AREAS.--

A. A person desiring to use the underground public waters of the state for noncommercial domestic purposes, which may include a residential garden not to exceed one acre in size, 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 except as otherwise provided in this section.

B. A permit for a domestic well within a municipality shall be conditioned to require the permittee to comply with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978.

C. The state engineer may deny an application for a domestic well permit, or condition a domestic well permit to limit the amount or use of water for domestic use, in those areas of the state within a critical management area. A decision to deny or limit a permit may be appealed pursuant to the provisions of Section 72-2-16 NMSA. The state engineer may declare a critical management area for domestic wells in specific areas in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978. A critical management area designation is subject to review 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.

D. A person denied a permit pursuant to Subsection C of this section may obtain a permit for domestic uses if the person obtains an existing water right from within that critical management area and changes the place or purpose of use of the water and the proposed change will not increase depletions within the critical management area. The change in place or purpose of use shall be made:

(1) in accordance with the provisions of Section 72-5-24 or 72-12-7 NMSA 1978; or

(2) without complying with the public notice provisions required by Section 72-5-4 or 72-12-3 NMSA 1978 pursuant to rules adopted by the state engineer if:

(a) there is a change of use to domestic uses with no change in location of use; or

(b) the quantity of the water right transferred is less than one acre-foot and will provide no more than one-fourth of one acre-foot per year to one household and serve no more than four households;

(c) the state engineer determines that the changes will not impair existing rights, be contrary to conservation of water within the state, be detrimental to the public welfare of the state or result in depletions of water in the system greater than would have occurred in the absence of the transaction;

(d) the permittee complies with applicable municipal and county ordinances; and

(e) the governing board of the acequia or ditch association has given written approval of the transfer when the water right to be transferred is from an acequia or community ditch association.

E. A domestic well permit shall not be granted pursuant to this section in any area of the state:

(1) if the owner of the land or household owns or controls water rights at the location of the proposed domestic well sufficient to provide at least one-half acre-feet of water per year per household for domestic purposes; or

(2) for domestic use on land from which the water rights have been transferred or changed to a new use or location of use."

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 proposed use will not permanently impair any existing rights of others, the state engineer shall grant the application. If the state engineer finds that the proposed use sought will permanently impair such rights, there shall be advertisement and hearing as provided in the case of applications made under Section 72-12-3 NMSA 1978."