HOUSE ENERGY AND NATURAL RESOURCES COMMITTEE SUBSTITUTE FOR
HOUSE BILL 285
47th legislature - STATE OF NEW MEXICO - first session, 2005
AN ACT
RELATING TO WATER; AMENDING AND ENACTING SECTIONS OF CHAPTER 72 NMSA 1978 TO PROVIDE FOR THE ISSUANCE OF STATE ENGINEER PERMITS FOR DOMESTIC WELLS IN DOMESTIC WELL MANAGEMENT AREAS; PROVIDING FOR THE DECLARATION OF DOMESTIC WELL MANAGEMENT AREAS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 72-2-8 NMSA 1978 (being Laws 1967, Chapter 246, Section 1) is amended to read:
"72-2-8. ADMINISTRATIVE REGULATIONS, CODES, INSTRUCTIONS, ORDERS--PRESUMPTION OF CORRECTNESS.--
A. The state engineer may adopt regulations and codes to implement and enforce any provision of any law administered by [him] the state engineer and may issue orders necessary to implement [his] decisions and to aid [him] in the accomplishment of [his] the state engineer's duties. In order to accomplish its purpose, this provision is to be liberally construed.
B. Directives issued by the state engineer shall be in form substantially as follows:
(1) regulations are written statements of the state engineer of general application to the public, implementing statutes, prescribing procedures and interpreting and exemplifying the statutes to which they relate;
(2) codes are written standards and specifications governing design and construction of dams;
(3) orders are written statements of the state engineer to implement [his decision] the state engineer's decisions; and
(4) special orders are written statements defining the declared boundaries of underground streams, channels, artesian basins, reservoirs, [or] lakes or domestic well management areas.
C. To be effective, a regulation, code or special order issued by the state engineer shall be reviewed by the attorney general or other legal counsel of the office of the state [engineer's office] engineer prior to being filed as required by law and the fact of [his] the state engineer's review shall be indicated thereon.
D. To be effective, a regulation or code shall first be issued as a proposed regulation or proposed code and filed for public inspection in the office of the state engineer along with the findings of fact that in the opinion of the state engineer justify the regulation or code. Distribution shall also be made to each district and field office for public inspection and to each of the persons on the file of interested persons [hereinafter] mentioned in Subsection G of this section. After the proposed regulation or code has been on file for one month, [he] the state engineer shall publish it or, if it is lengthy, a resume of it in not less than five newspapers of general circulation in the state, once a week for two consecutive weeks, with the statement that there will be a hearing on the proposed regulation or code on a day set in the publication, which shall be not more than thirty days nor less than twenty days after the last publication. The hearing shall be held in Santa Fe, and any person who is or may be affected by the proposed regulation or code may appear and testify.
E. Special orders may be promulgated without prior notice and hearing, but the state engineer shall, within ten days of promulgation of a special order, set a date for a hearing on the special order and publish notice of the public hearing in the same manner required [above] in Subsection D of this section. When a special order is promulgated to declare a domestic well management area, the special order shall not become effective until after notice and hearing, and the state engineer shall not accept applications for permits for domestic water use within the proposed domestic well management area until the final special order is adopted following the hearing. A hearing on a special order to declare a domestic well management area shall be held within the proposed domestic well management area or as close as practicable to that area.
F. In addition to filing copies of regulations as required by law, the state engineer shall maintain in [his] the office of the state engineer duplicate official sets of current regulations, codes and special orders, which sets shall be available for inspection by the public.
G. The state engineer shall develop and maintain a file of names and addresses of individuals and professional, agricultural and other groups having an interest in the promulgation of new, revised or proposed regulations and shall at convenient times distribute to these persons all such regulations, making such charges [therefor] as will defray the expense incurred in their physical preparation and mailing.
H. Any regulation, code or order issued by the state engineer is presumed to be in proper implementation of the provisions of the water laws administered by [him] the state engineer.
I. The state engineer shall state the extent to which regulations, codes and orders will have retroactive effect and, if no such statement is made, they will be applied prospectively only."
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. Subject to the limitations imposed by Section 72-5-24.1 NMSA 1978, within a domestic well management area, the state engineer shall grant a permit for domestic water use pursuant to this section only if the applicant transfers into the proposed domestic well other valid existing water rights from within the same domestic well management area pursuant to Subsection D of this section.
D. An applicant for a permit for domestic water use within a domestic well management area may apply pursuant to this subsection to change the place or purpose of use and the point of diversion into the proposed domestic well of up to one acre-foot per year of consumptive use from other valid existing water rights within the same domestic well management area; provided that the proposed change shall not increase depletions within the domestic well management area and the water right to be transferred is not from an acequia or a community ditch. The fee for an application made pursuant to the provisions of this subsection shall not exceed the amount charged to file an application for a change in location of well or place or purpose of use.
E. Water rights transferred into a domestic well pursuant to Subsection D of this section shall retain the priority date of the transferred water right and may be transferred to a new point of diversion or place or purpose of use pursuant to the provisions of Section 72-12-7 NMSA 1978."
Section 3. A new section of Chapter 72, Article 12 NMSA 1978 is enacted to read:
"[NEW MATERIAL] DOMESTIC WELL 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 of appropriation gives the better right. Protection of senior water rights is one of the statutory duties 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 delivery obligations can result in expensive litigation, 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 its 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 senior water rights are to be protected, the state's interstate compact obligations are to be met and the citizens in those areas are to be protected from the loss of a vital resource; and
(5) in areas of the state that require heightened protection, designation of domestic well management areas may be necessary to prolong the life of an aquifer, protect senior water rights, enhance the ability of the state to meet its interstate stream compact delivery obligations and protect the health and safety of its citizens.
B. As used in Chapter 72 NMSA 1978, "domestic well management area" means a bounded area, specifically described by section, township and range, or by other land survey descriptions, that requires special water resource protection because additional depletions resulting from new domestic wells will impair existing senior water rights or negatively affect the flows of a stream subject to an interstate compact.
C. The state engineer may declare, modify or terminate a domestic well management area through a special order promulgated pursuant to Section 72-2-8 NMSA 1978.
D. The state engineer shall treat all domestic well applications filed pursuant to Section 72-12-1.1 NMSA 1978 in the same manner in each domestic well management area.
E. Upon declaration of a domestic well management area, the state engineer shall review the declaration every ten years, or more frequently as the state engineer determines is necessary, to determine whether the domestic well management area continues to meet the criteria for declaration."
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