HOUSE BILL 472
53rd legislature - STATE OF NEW MEXICO - first session, 2017
INTRODUCED BY
Candie G. Sweetser and Candy Spence Ezzell
and Debbie A. Rodella and Yvette Herrell
and George Dodge, Jr.
AN ACT
RELATING TO WATER RIGHTS ADMINISTRATION; PROVIDING DEFINITIONS; LIMITING LIVESTOCK WATER RIGHTS HOLDERS; PROHIBITING THE STATE ENGINEER FROM ENFORCING OR ADMINISTERING CONDITIONS PLACED ON PERMITTED LAND TO REQUIRE TRANSFER OF PRIVATE WATER RIGHTS TO A GOVERNMENT LAND MANAGEMENT AGENCY EXCEPTING SALES OF WATER RIGHTS; EXEMPTING LIVESTOCK WATER RIGHTS FROM FORFEITURE WHERE THE RIGHT IS APPURTENANT TO LAND UNDER A CURRENT LEASE OR PERMIT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 72-1-1 NMSA 1978 (being Laws 1907, Chapter 49, Section 1, as amended) is amended to read:
"72-1-1. [151-101.] NATURAL WATERS--PUBLIC.--All natural waters flowing in streams and water courses, whether [such be] they are perennial or torrential, within the limits of the state [of New Mexico] belong to the public and are subject to appropriation for beneficial use. [A "water course" is hereby defined to be any river, creek, arroyo, canyon, draw, or wash or any other channel having definite banks and bed with visible evidence of the occasional flow of water.]"
SECTION 2. A new Section 72-1-1.1 NMSA 1978 is enacted to read:
"72-1-1.1. [NEW MATERIAL] DEFINITIONS.--As used in Chapter 72 NMSA 1978:
A. "beneficial user" means a person who puts a water right to beneficial use and does not mean an owner of leased or permitted land where the beneficial use occurs as a component of the lease or permit;
B. "permitted land" means land leased through a permit with a government land management agency; and
C. "water course" means any river, creek, arroyo, canyon, draw, wash or any other channel having definite banks and bed with visible evidence of the occasional flow of water."
SECTION 3. A new Section 72-1-1.2 NMSA 1978 is enacted to read:
"72-1-1.2. [NEW MATERIAL] LIVESTOCK WATER RIGHT LIMITED TO BENEFICIAL USER.--A lessor or permitting agency of land may not acquire a water right to water livestock unless the lessor or permitting agency is a beneficial user."
SECTION 4. 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--PROHIBITED ACTIONS.--
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.
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 [state engineer's] office of the state engineer prior to being filed as required by law and the fact of [his] the state engineer's review shall be indicated [thereon] on the regulation, code or special order.
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] in 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 hearing 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.
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.
J. The state engineer shall not enforce or administer a condition placed on permitted land that:
(1) requires the full or partial transfer of title of water rights to a government land management agency excepting provisions in a contract for sale or lease of water or water rights; or
(2) restricts the use or alienability of water rights as a condition to a right of way, special use permit or other authorization by the government agency to use lands under its jurisdiction.
K. Notwithstanding the provisions of Subsection J of this section, nothing in this section shall be construed to:
(1) alter the state engineer's authority to enforce and administer the terms and conditions of a court decree; or
(2) grant, expand, contract or limit the legal authority of any state or local government related to permitting or regulatory action in connection with land use or other permitting approvals or authorizations."
SECTION 5. Section 72-9-3 NMSA 1978 (being Laws 1907, Chapter 49, Section 74, as amended) is amended to read:
"72-9-3. STOCK WATER.--
A. Any stockmen or stock owners desiring to impound any of the surface waters of the state for watering of livestock shall apply to the state engineer on a form prescribed by the state engineer. If the capacity of the proposed impoundment is ten acre-feet or less, the applicant shall meet the requirements of this section. If the capacity of the proposed impoundment exceeds ten acre-feet, the applicant shall meet the requirements of filing applications for the appropriation and use of water pursuant to Section 72-5-1, 72-5-22, 72-5-23 or 72-5-24 NMSA 1978.
B. Upon the filing of an application pursuant to this section, if the state engineer finds that the capacity of the proposed impoundment is ten acre-feet or less, will not be on a perennial stream and will be used for watering of livestock as defined in Subsection [D] E of this section, the state engineer shall issue a permit to the applicant to impound and use the waters applied for; provided that as part of an application for an impoundment on state or federal land, the applicant submits proof that the applicant is legally entitled to place livestock on the state or federal land where the water is to be impounded and has been granted access to the site and has permission to occupy the portion of the state or federal land as is necessary for the impoundment.
C. This section shall only apply to impoundments constructed for the watering of livestock after the effective date of this 2004 act.
D. A beneficial user with a permit under this section shall have a right of access to the land where the water is to be impounded to develop and maintain the impoundment and to maintain the beneficial use appurtenant to the land.
[D.] E. As used in this section, "livestock" means "livestock" as defined in Section 77-2-1.1 NMSA 1978 and this section applies only to the impoundment of surface water for the purpose of watering livestock. Watering of livestock does not include an impoundment of surface or ground water in any amount for fishing, fish propagation, recreation or aesthetic purposes, which shall require a permit pursuant to Section 72-5-1 NMSA 1978. In determining whether an impoundment will be used for the watering of livestock, the state engineer may consider the maximum amount of water required per livestock unit and shall take into account regional and climatic conditions that affect consumption."
SECTION 6. Section 72-5-28 NMSA 1978 (being Laws 1907, Chapter 49, Section 42, as amended) is amended to read:
"72-5-28. FAILURE TO USE WATER--FORFEITURE.--
A. When the party entitled to the use of water fails to [beneficially] use beneficially all or any part of the water claimed by [him] the party, for which a right of use has vested for the purpose for which it was appropriated or adjudicated, except the waters for storage reservoirs, for a period of four years, [such] the unused water shall, if the failure to [beneficially] use the water beneficially persists one year after notice and declaration of [nonuser] nonuse given by the state engineer, revert to the public and shall be regarded as unappropriated public water; provided, however, that forfeiture shall not necessarily occur if circumstances beyond the control of the owner have caused nonuse, such that the water could not be placed to beneficial use by diligent efforts of the owner; and provided that periods of nonuse when irrigated [farm lands] farmlands are placed under the acreage reserve program or conservation reserve program provided by the federal Food Security Act of 1985, P.L. 99-198, shall not be computed as part of the four-year forfeiture period; and provided, further, that the condition of notice and declaration of [nonuser] nonuse shall not apply to water that has reverted to the public by operation of law prior to June 1, 1965.
B. Upon application to the state engineer at any time and a proper showing of reasonable cause for delay or for nonuse or upon the state engineer finding that it is in the public interest, the state engineer may grant extensions of time, for a period not to exceed three years for each extension, in which to apply to beneficial use the water for which a permit to appropriate has been issued or a water right has vested, was appropriated or has been adjudicated.
C. Periods of nonuse when water rights are acquired by incorporated municipalities or counties for implementation of their water development plans or for preservation of municipal or county water supplies shall not be computed as part of the four-year forfeiture statute.
D. A lawful exemption from the requirements of beneficial use, either by an extension of time or other statutory exemption, stops the running of the four-year period for the period of the exemption, and the period of exemption shall not be included in computing the four-year period.
E. Periods of nonuse when the nonuser of acquired water rights is on active duty as a member of the armed forces of this country shall not be included in computing the four-year period.
F. The owner or holder of a valid water right or permit to appropriate waters for agricultural purposes appurtenant to designated or specified lands may apply the full amount of water covered by or included in the water right or permit to any part of the designated or specified tract without penalty or forfeiture.
G. Periods of nonuse when water rights are acquired and placed in a state engineer-approved water conservation program, by an individual or entity that owns water rights, a conservancy district organized pursuant to Chapter 73, Articles 14 through 19 NMSA 1978, a soil and water conservation district organized pursuant to Chapter 73, Article 20 NMSA 1978, an acequia or community ditch association organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, an irrigation district organized pursuant to Chapter 73, Articles 9 through 13 NMSA 1978 or the interstate stream commission shall not be computed as part of the four-year forfeiture period.
H. Water deposited in a lower Pecos river basin below Sumner lake water bank approved by the interstate stream commission or an acequia or community ditch water bank shall not be computed as part of the four-year forfeiture period.
I. This section shall not apply to a water right for livestock watering on leased or permitted land as long as the lease or permit remains in effect."
SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2017.
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