SENATE BILL 145
49th legislature - STATE OF NEW MEXICO - second session, 2010
INTRODUCED BY
Clinton D. Harden
AN ACT
RELATING TO PROPERTY; PROVIDING FOR OWNERSHIP AND CONVEYANCE OF PORE SPACE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. OWNERSHIP AND CONVEYANCE OF PORE SPACE.--
A. The ownership of all pore space of this state is vested in the several owners of the overlying surface, unless ownership of the pore space has been previously severed.
B. Title to pore space may be severed from the surface estate by grant, conveyance or otherwise and severed by depth or geologic formation subject to the following provisions:
(1) no title instrument shall be construed as effecting severance of pore space ownership unless the title instrument expressly provides for severance of pore space ownership or this section provides otherwise;
(2) an instrument severing pore space ownership or conveying title to severed pore space shall describe the pore space conveyed by any means, including a subsurface geologic survey or a metes and bounds description, that sufficiently identifies the horizontal and vertical boundaries of the pore space conveyed. If the instrument does not define the vertical boundaries, the transfer shall be deemed to include pore space at all depths beneath the surface areas described;
(3) the owner of a severed right or title to pore space shall have no right to enter upon or otherwise use the surface of the land unless the instrument of severance expressly so provides;
(4) notwithstanding the severance of any or all of the pore space from the surface estate and any provisions in the instrument of severance to the contrary, the severed pore space shall remain part of the surface estate for all matters relating to the mineral estate. The owner of the surface estate shall retain the exclusive right to manage and administer the surface and severed pore space for any permissible purpose pursuant to statutes or the common law of this state;
(5) any agreement or contract entered into by the owner of the surface estate pursuant to the rights described in this subsection shall be binding and enforceable against the owner of the severed pore space;
(6) no provision of statute, rule or ordinance requiring notice to be given to an owner of land, to a surface owner or to an owner of the mineral estate shall be construed to require notice to a person holding ownership interest only in underlying pore space unless a statute specifies that notice to such person is required; and
(7) subject to such use of the pore space as is reasonably necessary for the exercise of the rights belonging to the mineral estate, this section shall govern construction of all instruments affecting title to pore space executed on or after the effective date of this section and executed prior to that date except to the extent that a court determines that construction of any preexisting instrument would deprive any person of an existing property right that existed prior to the effective date of this section.
C. The provisions of this section do not:
(1) and are not intended to change the statutory or common law of this state as of the effective date of this section with respect to underground waters or:
(a) use of the pore space that is reasonably necessary for the exercise of the rights belonging to the mineral estate;
(b) the right of mineral owners or their lessees to inject any substance into the pore space as approved by the oil conservation division of the energy, minerals and natural resources department or pursuant to rules adopted pursuant to this section by or governing the oil conservation commission;
(c) the right to drill through the pore space or reservoir in such manner as shall comply with applicable laws, rules and ordinances, including laws and rules established for the protection of the reservoir or fluids contained therein; or
(d) all other rights or interests belonging to the mineral estate pursuant to statutes or the common law of this state;
(2) diminish or invalidate the rights to use subsurface pore space that were acquired by contract or lease prior to the effective date of this section; and
(3) affect or limit any enhanced oil recovery project or enhanced gas recovery project now or hereafter permitted by the oil conservation division of the energy, minerals and natural resources department, or by the oil conservation commission, pursuant to the Oil and Gas Act, and it shall not prohibit the use of anthropogenic or naturally occurring carbon dioxide in such projects.
D. Pore space use for geologic sequestration shall be subject to the following provisions:
(1) any conveyance of pore space in any reservoir or part thereof and any easement, license or consent executed by any pore space owner, surface owner or mineral owner or lessee for the use of pore space in any reservoir or part thereof for geologic sequestration shall, unless otherwise agreed between the parties, preserve to the person granting such title, right or consent and to their heirs, successors and assigns:
(a) the right to drill through the reservoir in such manner as shall comply with applicable laws, rules and ordinances, including laws and rules established for the protection of the reservoir or fluids contained therein; and
(b) all other rights or interests of such owners in the surface, subsurface or minerals, including all rights belonging to the mineral estate pursuant to the common law of this state;
(2) carbon dioxide injected into pore space shall remain the property and responsibility of the person owning it at the time of injection, unless and until transferred to and accepted by another person;
(3) except as otherwise provided by federal law, no owner of pore space and no person who conveys a right to pore space, directly or indirectly, to a storage operator, or grants an easement, license or consent for the use of any pore space for geologic sequestration, shall be liable for any effects of injecting carbon dioxide for geologic sequestration solely by virtue of their ownership of such interest or of their having granted such easement, license or consent; and
(4) no person shall inject carbon dioxide into any underground source of drinking water for the purpose of geologic sequestration, and no provision of this act shall be construed as authorizing such injection.
E. As used in this section:
(1) "carbon dioxide" means any anthropogenic carbon dioxide, including any gas mixture containing significant quantities of carbon dioxide, that is suitable for geologic sequestration;
(2) "geologic sequestration" means the underground storage of carbon dioxide in a geologic zone suitable to provide permanent confinement of the carbon dioxide;
(3) "person" means any individual, firm, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, government, including any agency, entity or subdivision thereof, or any other entity;
(4) "pore space" means all subsurface space that may be used for injection or storage of carbon dioxide, whether in caverns, fissures, pores, on the surface of formation rocks or otherwise;
(5) "reservoir" means any oil or gas reservoir, saline aquifer, coal seam or any natural or artificial subsurface stratum, formation, aquifer, cavity or void that may be used for injection and storage of carbon dioxide, but "reservoir" does not include any aquifer or part of any aquifer that is an underground source of drinking water;
(6) "storage operator" means any person duly authorized to operate a facility for geologic sequestration; and
(7) "underground source of drinking water" means any aquifer that is an underground source of drinking water as now or hereafter defined by the United States environmental protection agency pursuant to the federal Safe Drinking Water Act of 1974.
Section 2. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations, persons or government entities shall not be affected.
Section 3. EFFECTIVE DATE.--The effective date of the provisions of this act is December 31, 2010.
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