HOUSE BILL 196
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Luciano "Lucky" Varela
AN ACT
RELATING TO WATER; PROVIDING FOR ACTIVE RESOURCE MANAGEMENT AND DESIGNATION OF CRITICAL MANAGEMENT AREAS; AMENDING A SECTION OF CHAPTER 72, ARTICLE 2 NMSA 1978 TO ENABLE THE STATE ENGINEER TO REGULATE WELLS IN CRITICAL MANAGEMENT AREAS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 72, Article 2 NMSA 1978 is enacted to read:
"[NEW MATERIAL] ACTIVE RESOURCE MANAGEMENT--DESIGNATION OF CRITICAL MANAGEMENT AREAS.--
A. The legislature finds that:
(1) the constitution of New Mexico provides that only unappropriated water is subject to appropriation and that priority gives the better right. Protection of senior water rights is the constitutional duty of the state engineer in New Mexico;
(2) pursuant to eight interstate stream compacts, New Mexico is required to deliver water to other states, and failure to meet compact obligations can result in multimillion dollar judgments and priority calls with severe economic disruption;
(3) active resource management is essential if New Mexico is to protect, manage and develop New Mexico's water resources;
(4) demand for water exceeds the available supply in many areas of the state, and some of these areas require heightened protection and management if the state engineer is to meet his constitutional and compact duties and obligations and if the citizens in those areas are to be protected from loss of a vital resource;
(5) in some areas, multiple wells used for domestic purposes and limited irrigation impair the rights of existing users in some areas, contribute to excessive draw-down of the water table, threaten the short-term viability of areas with thin or reduced aquifer thickness or negatively impact the state's ability to meet its interstate compact obligations. In other areas, domestic wells are drilled into contaminated aquifers, compromising the health and safety of the citizens; and
(6) in areas of the state that require heightened protection, designation of critical management areas may be necessary to prolong the life of an aquifer, protect the rights of existing water users, enhance the ability of the state to meet its interstate compact delivery requirements and protect the health and safety of its citizens.
B. The state engineer may declare a critical management area in specific areas in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978.
C. As used in this section and Section 72-12-1.1 NMSA 1978, "critical management area" means a bounded area that requires heightened water resource protection because the aquifer is fully appropriated and:
(1) new depletions are in an amount sufficient to result in a short life for the aquifer and water resources may be inadequate to sustain well production as evidenced by:
(a) significant water level decline and draw-down rates that are deemed excessive for the aquifer; or
(b) thin or reduced aquifer thickness such that wells are dry or low-yielding;
(2) additional depletions are shown to negatively affect the state's interstate compact delivery requirements; or
(3) additional wells drilled pursuant to Section 72-12-1.1 NMSA 1978 will impair the rights of existing users and are shown to either negatively affect the longevity of the aquifer or the ability of the state to meet its interstate compact delivery obligations.
D. Upon petition by an affected party, the critical management area designation is subject to reconsideration. The petition shall be considered in the same manner as special orders made pursuant to Section 72-2-8 NMSA 1978. The petition shall be granted if the critical management area has recovered and no longer requires heightened protection."
Section 2. Section 72-12-1.1 NMSA 1978 (being Laws 2003, Chapter 298, Section 2) is amended to read:
"72-12-1.1. UNDERGROUND WATERS--DOMESTIC USE--PERMIT.--
A. A person, firm or corporation desiring to use public underground waters described in this section 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 for a well on a form to be prescribed by the state engineer. Upon the filing of each application describing the use applied for, the state engineer shall issue a permit to the applicant to use the underground 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.
C. The state engineer may deny a permit for a domestic well if the ground water in the area is contaminated.
D. The state engineer may deny a domestic well permit in a critical management area unless the applicant obtains a water right pursuant to this section. Water rights obtained pursuant to this section shall be considered water rights with a priority date and may be transferred to a new location or purpose of use subject to the provisions of Chapter 72 NMSA 1978.
E. A person required to obtain a water right pursuant to this section shall obtain an existing water right from within that critical management area and change the place or purpose of use of the water; provided that the proposed change will not increase depletions within the critical management area. The change in place or purpose of use shall be made pursuant to the provisions of Section 72-5-24 or 72-12-7 NMSA 1978, except that a person required to obtain a water right pursuant to this section may be exempted from the public notice requirements if:
(1) there is a change of use to domestic use with no change in location of use; or
(2) the quantity of the water rights transferred is no more than one acre-foot and:
(a) the state engineer determines that the change will not impair existing rights, be contrary to conservation of water, be detrimental to the public welfare or result in depletions of water in the system greater than would have occurred in the absence of the transaction; and
(b) the governing board of the acequia or community ditch association has given written approval of the transfer when the water right to be transferred is from an acequia or community ditch.
F. A person may appeal the decision of the state engineer pursuant to the provisions of Section 72-7-1 NMSA 1978 within thirty days after receipt by certified mail of the notice from the state engineer."
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