SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR

SENATE BILL 236

50th legislature - STATE OF NEW MEXICO - first session, 2011

AN ACT

RELATING TO WATER; AMENDING A SECTION OF CHAPTER 72 NMSA 1978 TO PROVIDE FOR THE STATUS OF WATER RIGHTS UNDER LEASE.

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

     SECTION 1. Section 72-6-3 NMSA 1978 (being Laws 1967, Chapter 100, Section 3, as amended) is amended to read:

     "72-6-3. OWNER MAY LEASE USE OF WATER--PERMITTED BENEFICIAL USE.--

          A. An owner may lease to any person all or any part of the water use due [him] the owner under [his] the owner's water right, and the owner's water right shall not be affected by the lease of the use. The beneficial use by a lessee pursuant to Chapter 72, Article 6 NMSA 1978 of any part of the water use due under the owner's water right shall constitute beneficial use of that part of the owner's water right. The use to which the owner is entitled under [his] the owner's right shall, during the exercise of the lease, be reduced by the amount of water so leased. Upon termination of the lease, the water use and location of use subject to the lease shall revert to the owner's original use and location of use.

          B. The lease may be effective for immediate use of water or may be effective for future use of the water covered by the lease; however, the lease shall not be effective to cumulate water from year to year or to substantially enlarge the use of the water in such manner that it would injure other water users. The lease shall not toll any forfeiture of water rights for nonuse, and the owner shall not, by reason of the lease, escape the forfeiture for nonuse prescribed by law; provided, however, that the state engineer shall notify both the owner and the lessee of declaration of [nonuser] nonuse as provided in Sections 72-5-28 and 72-12-8 NMSA 1978. The initial or any renewal term of a lease of water use shall not exceed ten years, except as provided in Subsection [C] D of this section.

          C. In a fully appropriated system where a state engineer permit has authorized a change in the place or purpose of use of a finally adjudicated ground water right but where it has become infeasible to place the water to the permitted beneficial use because of a change in circumstances beyond the permittee's control, the permittee may lease all or any part of the water use authorized by the permit for ten years, subject to renewal for a maximum of one more ten-year term; provided that only that amount of water placed to beneficial use under the lease shall be accepted as satisfying the beneficial use requirement of the permit necessary to establish a water right; and provided further that the water placed to beneficial use under the lease is only within the fully appropriated system and is used only for the permitted use, municipal or instream flow. In addition to any other notice required by law, the permittee shall give written notice of any such proposed lease to all protestants, if any, who participated in the prior permitting proceeding.

          [C.] D. A water use may be leased for forty years by municipalities, counties, state universities, special water users' associations, public utilities supplying water to municipalities or counties and member-owned community water systems as lessee and shall be entitled to the protection of the forty-year water use planning period as provided in Section 72-1-9 NMSA 1978. A water use deriving from an acequia or community ditch organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, whether owned by a water right owner under the acequia or community ditch or by the acequia or community ditch may be leased for a term not to exceed ten years."

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