HOUSE AGRICULTURE AND WATER RESOURCES COMMITTEE SUBSTITUTE FOR
HOUSE BILL 374
54th legislature - STATE OF NEW MEXICO - first session, 2019
AN ACT
RELATING TO WATER; PROVIDING ADDITIONAL REQUIREMENTS FOR APPROPRIATION OF UNDERGROUND WATER TO SUPPLY WATER TO A MUNICIPALITY OR OTHER ENTITY WITH A FORTY-YEAR WATER USE PLANNING PERIOD; ESTABLISHING PRIOR DECISIONS AS PRECEDENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of Chapter 72, Article 12 NMSA 1978 is enacted to read:
"[NEW MATERIAL] APPLICATION--ADDITIONAL REQUIREMENTS--APPROPRIATION TO SUPPLY WATER TO AN ENTITY WITH A FORTY-YEAR WATER USE PLANNING PERIOD.--
A. In addition to the requirements of Subsection A of Section 72-12-3 NMSA 1978, a person desiring to appropriate for beneficial use any waters described in Chapter 72, Article 12 NMSA 1978 in order to supply water to an entity described in Section 72-1-9 NMSA 1978 shall include with its application:
(1) a specific plan to divert, control and deliver a specific quantity of water for specific beneficial uses by the entity described in Section 72-1-9 NMSA 1978; and
(2) evidence of a firm contractual commitment for the purchase and delivery of the water, in specific amounts for specific beneficial uses, or evidence that the applicant's proposed appropriation has been specifically included in a water development plan prepared by an entity described in Section 72-1-9 NMSA 1978 that has been approved by the state engineer.
B. The requirements of this section shall not apply to an entity described in Section 72-1-9 NMSA 1978 that applies for a permit to appropriate water for its own uses.
C. An application shall not be accepted by the state engineer for filing unless it includes all the information required by Subsection A of this section.
D. Prior to approval by the state engineer of an application to appropriate water under this section, the applicant shall show in a hearing before the state engineer that:
(1) the applicant's plan to divert, control and deliver a specific quantity of water for specific beneficial uses by an entity described in Section 72-1-9 NMSA 1978 is consistent with that entity's reasonably projected water needs within forty years, based upon substantiated projections of population growth or other factors; and
(2) the applicant can and will complete the appropriation with diligence and place the water to beneficial use within a reasonable time.
E. The state engineer shall deny an application to appropriate water under this section if the state engineer finds that the applicant has failed to meet the requirements of Subsection D of this section.
F. Any amount of water approved for appropriation under this section for use by an entity described in Section 72-1-9 NMSA 1978 shall be included in and subject to the limits of that entity's allowable forty-year water use planning period.
G. The provisions of this section shall apply to applications filed with the state engineer after the effective date of this section."
SECTION 2. Section 72-12-3 NMSA 1978 (being Laws 1931, Chapter 131, Section 3, as amended) is amended to read:
"72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER--PUBLICATION OF NOTICE--PERMIT.--
A. Any person, firm or corporation or any other entity desiring to appropriate for beneficial use any of the waters described in Chapter 72, Article 12 NMSA 1978 shall apply to the state engineer in a form prescribed by [him] the state engineer. In the application, the applicant shall designate:
(1) the particular underground stream, channel, artesian basin, reservoir or lake from which water will be appropriated;
(2) the beneficial use to which the water will be applied;
(3) the location of the proposed well;
(4) the name of the owner of the land on which the well will be located;
(5) the amount of water applied for;
(6) the place of the use for which the water is desired; and
(7) if the use is for irrigation, the description of the land to be irrigated and the name of the owner of the land.
B. If the well will be located on privately owned land and the applicant is not the owner of the land or the owner or the lessee of the mineral or oil and gas rights under the land, the application shall be accompanied by an acknowledged statement executed by the owner of the land that the applicant is granted access across the owner's land to the drilling site and has permission to occupy such portion of the owner's land as is necessary to drill and operate the well. This subsection does not apply to the state or any of its political subdivisions. If the application is approved, the applicant shall have the permit and statement, executed by the owner of the land, recorded in the office of the county clerk of the county in which the land is located.
C. In addition to the requirements of Subsection A of this section, a person desiring to appropriate for beneficial use any waters described in Chapter 72, Article 12 NMSA 1978 in order to supply water to an entity described in Section 72-1-9 NMSA 1978 shall additionally comply with the provisions of Section 1 of this 2019 act.
[C.] D. No application shall be accepted by the state engineer unless it is accompanied by all the information required by Subsections A and B of this section.
[D.] E. Upon the filing of an application, the state engineer shall cause to be published in a newspaper that is published and distributed in the county where the well will be located and in each county where the water will be or has been put to beneficial use or where other water rights may be affected, or if there is no such newspaper, then in some newspaper of general circulation in the county in which the well will be located, at least once a week for three consecutive weeks, a notice that the application has been filed and that objections to the granting of the application may be filed within ten days after the last publication of the notice. Any person, firm or corporation or other entity objecting that the granting of the application will impair the objector's water right shall have standing to file objections or protests. Any person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state and showing that the objector will be substantially and specifically affected by the granting of the application shall have standing to file objections or protests; provided, however, that the state [of New Mexico] or any of its branches, agencies, departments, boards, instrumentalities or institutions and all political subdivisions of the state and their agencies, instrumentalities and institutions shall have standing to file objections or protests.
[E.] F. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if [he] the state engineer finds that there are in the underground stream, channel, artesian basin, reservoir or lake unappropriated waters or that the proposed appropriation would not impair existing water rights from the source, is not contrary to conservation of water within the state and is not detrimental to the public welfare of the state, grant the application and issue a permit to the applicant to appropriate all or a part of the waters applied for, subject to the rights of all prior appropriators from the source.
[F.] G. If objections or protests have been filed within the time prescribed in the notice or if the state engineer is of the opinion that the permit should not be issued, the state engineer may deny the application without a hearing or, before [he] the state engineer acts on the application, may order that a hearing be held. [He] The state engineer shall notify the applicant of [his] the action by certified mail sent to the address shown in the application."
SECTION 3. A new section of Chapter 72, Article 12 NMSA 1978 is enacted to read:
"[NEW MATERIAL] STATE ENGINEER DECISIONS--APPLICATION OF EXISTING LAW.--In the evaluation of an application to appropriate the waters described in Chapter 72, Article 12 NMSA 1978, the state engineer shall apply existing law, including court decisions arising from the decisions of the state engineer, to the specific facts raised by the application."
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