SB0012COS

SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR

SENATE BILL 12

54th legislature - STATE OF NEW MEXICO - first session, 2019

AN ACT

RELATING TO WATER RIGHTS NOTIFICATIONS; REQUIRING THE OFFICE OF THE STATE ENGINEER TO POST NOTICES ONLINE; PRESCRIBING A DEADLINE FOR OBJECTING TO WATER DIVERSION APPLICATIONS.

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

SECTION 1. Section 72-5-4 NMSA 1978 (being Laws 1907, Chapter 49, Section 26, as amended) is amended to read:

"72-5-4. NOTICE--PUBLICATION.--

A. Upon the filing of an application that complies with the provisions of this article and the rules established [thereunder] pursuant to this article, accompanied by the proper fees, the state engineer shall [instruct] issue instructions to the applicant to publish notice [thereof] of the application, in a form and in a newspaper prescribed by the state engineer, in some newspaper that is published and distributed in each county affected by the diversion and in each county where the water will be or has been put to beneficial use, or if there is no such newspaper, then in some newspaper of general circulation in the stream system, once a week for three consecutive weeks. The notice shall:

(1) give all essential facts as to the proposed appropriation; among them, the places of appropriation and of use, amount of water, the purpose for which it is to be used, name and address of applicant and the time when the application shall be taken up by the state engineer for consideration; and

(2) state the date by which objections may be filed to the application, which date shall be seventy days from the date the state engineer instructs the applicant to make publication.

B. The applicant shall ensure that notice is published in accordance with the state engineer's instructions at least once a week for three consecutive weeks, with the last date of publication no more than sixty days after the date the state engineer issues instructions to publish the notice.

C. Proof of publication as required shall be filed with the state engineer within [sixty] twenty days [of his instructions to make] after the date of the last publication. In case of failure to file satisfactory proof of publication in accordance with the rules within the time required, the application shall be treated as an original application filed on the date of receipt of proofs of publication in proper form.

D. If the last of the three consecutive weekly publications does not occur within sixty days of the date the state engineer issues instructions to the applicant to publish notice, the applicant shall request new instructions to publish notice and the state engineer shall issue new instructions to the applicant and the deadlines for publication, objection and filing proof of publication shall be from the date of the new instructions.

E. No later than five business days after the state engineer issues instructions to publish notice, the state engineer shall post the notice, application and date by which objections shall be filed on the office of the state engineer website. The electronic notice posted by the state engineer shall provide the name of the newspaper in which the state engineer instructed the applicant to publish and the location and contact information of the state engineer district office where the original application and supporting documentation are located."

SECTION 2. Section 72-5A-5 NMSA 1978 (being Laws 1999, Chapter 285, Section 5) is amended to read:

"72-5A-5. NOTICE--PROTESTS--HEARINGS--DETERMINATIONS--JUDICIAL REVIEW.--

A. Upon receipt of an application for a permit to construct and operate a project, the state engineer shall endorse on the application the date it was received and shall keep a record of the application. The state engineer shall conduct an initial review of the application within sixty days of receipt. If the state engineer determines in the initial review that the application is incomplete, the state engineer shall notify the applicant of the application's deficiencies. The application shall remain incomplete until the applicant provides all information required by the Ground Water Storage and Recovery Act. The state engineer may request additional information from the applicant and shall conduct an investigation of the project.

B. [Within thirty days] After determining that an application is complete, [unless an extension is requested by the applicant, the applicant shall] the state engineer shall issue instructions to the applicant to publish a notice of the application in a form and in a newspaper prescribed by the state engineer that is of general circulation in the county in which persons reside who could reasonably be expected to be affected by the project. The notice [shall be given once a week for three consecutive weeks and] shall contain:

(1) the legal description of the location of the proposed project;

(2) a brief description of the proposed project, including its capacity;

(3) the name of the applicant;

(4) the date of the last publication;

(5) the requirements for an objection; and

(6) [disclosure that objections to the application shall be filed within ten days after the last publication of the notice] the date by which objections may be filed to the application, which date shall be seventy days from the date the state engineer issues instructions to the applicant to make publication.

C. The applicant shall ensure that notice is published in accordance with the state engineer's instructions at least once a week for three consecutive weeks, with the last date of publication no more than sixty days after the date the state engineer issues instructions to publish notice.

D. Objections to the granting of the application may be filed with the state engineer no later than seventy days after the date the state engineer issues instructions to publish notice. The state engineer shall identify in the instructions to publish notice the date by which objections shall be filed.

E. The applicant shall file proof of publication with the state engineer within twenty days after the date of the last publication. In case of failure to file satisfactory proof of publication in accordance with the rules within the time required, the application shall be treated as an original application filed on the date of receipt of proofs of publication in proper form.

F. If the last of the three consecutive weekly publications does not occur within sixty days of the date the state engineer issues instructions to the applicant to publish notice, the applicant shall request new instructions to publish notice and the state engineer shall issue new instructions to the applicant and the deadlines for publication, objection and filing proof of publication shall be from the date of the new instructions.

G. No later than five business days after the state engineer issues instructions to publish notice, the state engineer shall post the notice, application and date by which objections shall be filed on the office of the state engineer website. The electronic notice posted by the state engineer shall provide the name of the newspaper in which the state engineer instructed the applicant to publish notice and the location and contact information of the state engineer district office where the original application and supporting documentation are located.

[C.] H. A person objecting that the granting of the application will impair the objector's water right, will be contrary to the conservation of water or will be detrimental to the public welfare 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 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.

[D.] I. An objection shall be filed in writing, include the name and mailing address of the objector, identify the grounds for the objection and include the signature of the objector or [his] the objector's legal representative. The state engineer shall schedule a hearing on the application and provide at least thirty days' notice of the hearing, by certified mail, to the applicant and any objector.

[E.] J. 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 the application meets the requirements of the Ground Water Storage and Recovery Act, issue a permit to the applicant to construct the project to store and recover all or a part of the waters applied for, as conditioned by the state engineer.

[F.] K. A person or governmental entity aggrieved by any decision of the state engineer may appeal that decision to the district court pursuant to Section 72-7-1 NMSA 1978."

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

"72-6-6. APPLICATION--NOTICE--PROTEST--HEARING.--

A. Upon the filing of an application by a lessee, the state engineer shall [cause a notice of the filing to be published once a week for three consecutive weeks] issue instructions to the applicant to publish notice of the application in a form and in a newspaper prescribed by the state engineer that is of general circulation in the county in which the water right is situated. The notice shall state the date by which objections may be filed to the application, which date shall be seventy days from the date the state engineer issues instructions to the applicant to make publication.

C. Objections to the granting of the application may be filed with the state engineer no later than seventy days after the date the state engineer issues instructions to publish notice. The state engineer shall identify in the instructions to publish notice the date by which objections shall be filed.

D. The applicant shall file proof of publication with the state engineer within twenty days after the date of the last publication. In case of failure to file satisfactory proof of publication in accordance with the rules within the time required, the application shall be treated as an original application filed on the date of receipt of proofs of publication in proper form.

E. If the last of the three consecutive weekly publications does not occur within sixty days of the date the state engineer issues instructions to the applicant to publish notice, the applicant shall request new instructions to publish notice and the state engineer shall issue new instructions to the applicant and the deadlines for publication, objection and filing proof of publication shall be from the date of the new instructions.

F. No later than five business days after the state engineer issues instructions to publish notice, the state engineer shall post the notice, application and date by which objections shall be filed on the office of the state engineer website. The electronic notice posted by the state engineer shall provide the name of the newspaper in which the state engineer instructed the applicant to publish notice and the location and contact information of the state engineer district office where the original application and supporting documentation are located.

[B.] G. Any owner who believes [his] the owner's water rights will be adversely affected by the granting of the application may file a protest. The protest shall be specific as to how the granting of the application will adversely affect [his] the owner's water rights. The protest shall be filed in writing with the state engineer and a copy sent to the applicant by certified mail within ten days after the last publication of notice of application.

[C.] H. If a protest is filed, the state engineer shall hold a hearing on the granting of the application, and the applicant and protestants shall be notified by the state engineer as to the date and place of the hearing.

[D.] I. If no objections are filed, the state engineer may grant the application without hearing. If no objections are filed and the state engineer denies the application, the state engineer shall hold a hearing if requested to do so by the applicant. The request shall be filed with the state engineer within ten days after the denial of the application.

[E.] J. If the state engineer grants the application but allows the applicant to use less water than the amount of water the owner would be allowed to use, the state engineer shall hold a hearing on the matter if requested to do so by the applicant. The request shall be filed with the state engineer within ten days after the granting of the application.

[F.] K. In a hearing before the state engineer, a full record and transcript of the proceeding shall be kept by [him] the state engineer.

[G.] L. The provisions of this section do not apply to leases approved pursuant to Section 73-10-48 NMSA 1978."

SECTION 4. 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. 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. Upon the filing of an application, the state engineer shall [cause to be published] issue instructions to the applicant to publish notice of the application in a form and in a newspaper prescribed by the state engineer 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]. The notice shall state the date by which objections may be filed to the application, which date shall be seventy days from the date the state engineer issues instructions to the applicant to make publication.

E. The applicant shall ensure that notice is published in accordance with the state engineer's instructions at least once a week for three consecutive weeks, with the last date of publication no more than sixty days after the date the state engineer issues instructions to publish notice.

F. Objections to the granting of the application may be filed with the state engineer no later than seventy days after the date the state engineer issues instructions to publish notice. The state engineer shall identify in the instructions to publish notice the date by which objections shall be filed.

G. The applicant shall file proof of publication with the state engineer within twenty days after the date of the last publication. In case of failure to file satisfactory proof of publication in accordance with the rules within the time required, the application shall be treated as an original application filed on the date of receipt of proofs of publication in proper form.

H. If the last of the three consecutive weekly publications does not occur within sixty days of the date the state engineer issues instructions to the applicant to publish notice, the applicant shall request new instructions to publish notice and the state engineer shall issue new instructions to the applicant and the deadlines for publication, objection and filing proof of publication shall be from the date of the new instructions.

I. No later than five business days after the state engineer issues instructions to publish notice, the state engineer shall post the notice, application and date by which objections shall be filed on the office of the state engineer website. The electronic notice posted by the state engineer shall provide the name of the newspaper in which the state engineer instructed the applicant to publish notice and the location and contact information of the state engineer district office where the original application and supporting documentation are located.

J. 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.] K. 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] and 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.] L. 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 5. Section 72-12B-1 NMSA 1978 (being Laws 1983, Chapter 2, Section 1, as amended) is amended to read:

"72-12B-1. APPLICATIONS FOR THE TRANSPORTATION AND USE OF PUBLIC WATERS OUTSIDE THE STATE.--

A. The state of New Mexico has long recognized the importance of the conservation of its public waters and the necessity to maintain adequate water supplies for the state's water requirements. The state of New Mexico also recognizes that under appropriate conditions the out-of-state transportation and use of its public waters is not in conflict with the public welfare of its citizens or the conservation of its waters.

B. Any person, firm or corporation or any other entity intending to withdraw water from any surface or underground water source in the state of New Mexico and transport it for use outside the state or to change the place or purpose of use of a water right from a place in New Mexico to a place out of that state shall apply to the state engineer for a permit to do so. Upon the filing of an application, the state engineer shall [cause to be published] issue instructions to the applicant to publish notice of the application in a form and in a newspaper prescribed by the state engineer that is of general circulation in the county in which the well will be located or the stream system from which surface water will be taken [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]. The notice shall state the date by which objections may be filed to the application, which date shall be seventy days from the date the state engineer issues instructions to the applicant to make publication.

H. Any person, firm or corporation or other entity objecting that the granting of the application would impair or be detrimental to 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. The state engineer shall accept for filing and act upon all applications filed under this section in accordance with the provisions of this section. The state engineer shall require notice of the application and shall thereafter proceed to consider the application in accordance with existing administrative law and procedure governing the appropriation of surface or ground water.

[C.] I. In order to approve an application under this act, the state engineer must find that the applicant's withdrawal and transportation of water for use outside the state would not impair existing water rights, is not contrary to the conservation of water within the state and is not otherwise detrimental to the public welfare of the citizens of New Mexico.

[D.] J. In acting upon an application under this act, the state engineer shall consider, but not be limited to, the following factors:

(1) the supply of water available to the state of New Mexico;

(2) water demands of the state of New Mexico;

(3) whether there are water shortages within the state of New Mexico;

(4) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages in the state of New Mexico;

(5) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and

(6) the demands placed on the applicant's supply in the state where the applicant intends to use the water.

[E.] K. By filing an application to withdraw and transport waters for use outside the state, the applicant shall submit to and comply with the laws of the state of New Mexico governing the appropriation and use of water.

[F.] L. The state engineer is empowered to condition the permit to insure that the use of water in another state is subject to the same regulations and restrictions that may be imposed upon water use in the state of New Mexico.

[G.] M. Upon approval of the application, the applicant shall designate an agent in New Mexico for reception of service of process and other legal notices."

SECTION 6. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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