0001| SENATE BILL 396 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| CARLOS R. CISNEROS | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO WATER LAW; REQUIRING PERSONAL NOTICE, CERTIFIED | 0012| MAIL OR POSTING TO ADJOINING LANDOWNERS AND AFFECTED ACEQUIA OR | 0013| COMMUNITY DITCH ASSOCIATIONS WHEN APPLYING FOR ACQUISITION OF | 0014| SURFACE OR UNDERGROUND WATER RIGHTS. | 0015| | 0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0017| Section 1. Section 72-5-4 NMSA 1978 (being Laws 1907, | 0018| Chapter 49, Section 26, as amended) is amended to read: | 0019| "72-5-4. ~~[151-132. Id.]~~ NOTICE--PUBLICATION.--Upon the | 0020| filing of an application ~~[which]~~ that complies with the | 0021| provisions of this article and the rules and regulations | 0022| established thereunder, accompanied by the proper fees, the | 0023| state engineer shall instruct the applicant to publish notice | 0024| thereof, in a form prescribed by ~~[him]~~ the state engineer, | 0025| in some newspaper of general circulation in the stream system, | 0001| once a week for three consecutive weeks, and to notify in | 0002| person, by certified mail or by posting to all adjoining | 0003| landowners and affected acequia or community ditch | 0004| associations. ~~[Such]~~ The notice shall give all essential | 0005| facts as to the proposed appropriation; among them, the places | 0006| of appropriation and of use, amount of water, the purpose for | 0007| which it is to be used, name and address of applicant and the | 0008| time when the application shall be taken up by the state | 0009| engineer for consideration. Proof of publication as required | 0010| shall be filed with the state engineer within sixty days of his | 0011| instructions to make publication. In case of failure to file | 0012| satisfactory proof of publication in accordance with the rules | 0013| and regulations ~~[applicable thereto]~~ within the time re- | 0014| | 0015| quired, the application shall ~~[thereafter]~~ be treated as an | 0016| original application filed on the date of receipt of proofs of | 0017| publication in proper form." | 0018| Section 2. Section 72-12-3 NMSA 1978 (being Laws 1931, | 0019| Chapter 131, Section 3, as amended) is amended to read: | 0020| "72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER-- | 0021| PUBLICATION OF NOTICE--PERMIT.-- | 0022| A. Any person, firm or corporation or any other | 0023| entity desiring to appropriate for beneficial use any of the | 0024| waters described in Chapter 72, Article 12 NMSA 1978 shall | 0025| apply to the state engineer in a form prescribed by him. In | 0001| the application, the applicant shall designate: | 0002| (1) the particular underground stream, | 0003| channel, artesian basin, reservoir or lake from which water | 0004| will be appropriated; | 0005| (2) the beneficial use to which the water will | 0006| be applied; | 0007| (3) the location of the proposed well; | 0008| (4) the name of the owner of the land on which | 0009| the well will be located; | 0010| (5) the amount of water applied for; | 0011| (6) the place of the use for which the water | 0012| is desired; and | 0013| (7) if the use is for irrigation, the | 0014| description of the land to be irrigated and the name of the | 0015| owner of the land. | 0016| B. If the well will be located on privately owned | 0017| land and the applicant is not the owner of the land or the | 0018| owner or the lessee of the mineral or oil and gas rights under | 0019| the land, the application shall be accompanied by an | 0020| acknowledged statement executed by the owner of the land that | 0021| the applicant is granted access across the owner's land to the | 0022| drilling site and has permission to occupy such portion of the | 0023| owner's land as is necessary to drill and operate the well. | 0024| This subsection does not apply to the state or any of its | 0025| political subdivisions. If the application is approved, the | 0001| applicant shall have the permit and statement, executed by the | 0002| owner of the land, recorded in the office of the county clerk | 0003| of the county in which the land is located. | 0004| C. No application shall be accepted by the state | 0005| engineer unless it is accompanied by all the information | 0006| required by Subsections A and B of this section. | 0007| D. Upon the filing of an application, the state | 0008| engineer shall cause to be published in a newspaper of general | 0009| circulation in the county in which the well will be located, at | 0010| least once a week for three consecutive weeks, and to be given | 0011| in person, by certified mail or by posting to all adjoining | 0012| landowners and affected acequia or community ditch | 0013| associations a notice that the application has been filed and | 0014| that objections to the granting of the application may be filed | 0015| within ten days after the last publication of the notice. Any | 0016| person, firm or corporation or other entity objecting that the | 0017| granting of the application will impair the objector's water | 0018| right shall have standing to file objections or protests. Any | 0019| person, firm or corporation or other entity objecting that the | 0020| granting of the application will be contrary to the | 0021| conservation of water within the state or detrimental to the | 0022| public welfare of the state and showing that the objector will | 0023| be substantially and specifically affected by the granting of | 0024| the application shall have standing to file objections or | 0025| protests. Provided, however, that the state of New Mexico or | 0001| any of its branches, agencies, departments, boards, | 0002| instrumentalities or institutions, and all political | 0003| subdivisions of the state and their agencies, instrumentalities | 0004| and institutions shall have standing to file objections or | 0005| protests. | 0006| E. After the expiration of the time for filing | 0007| objections, if no objections have been filed, the state | 0008| engineer shall, if he finds that there are in the underground | 0009| stream, channel, artesian basin, reservoir or lake | 0010| unappropriated waters or that the proposed appropriation would | 0011| not impair existing water rights from the source, is not | 0012| contrary to conservation of water within the state and is not | 0013| detrimental to the public welfare of the state, grant the | 0014| application and issue a permit to the applicant to appropriate | 0015| all or a part of the waters applied for, subject to the rights | 0016| of all prior appropriators from the source. | 0017| F. If objections or protests have been filed within | 0018| the time prescribed in the notice or if the state engineer is | 0019| of the opinion that the permit should not be issued, the state | 0020| engineer may deny the application without a hearing or, before | 0021| he acts on the application, may order that a hearing be held. | 0022| He shall notify the applicant of his action by certified mail | 0023| sent to the address shown in the application." | 0024| | 0025| | 0001| FORTY-THIRD LEGISLATURE | 0002| FIRST SESSION, 1997 | 0003| | 0004| | 0005| March 4, 1997 | 0006| | 0007| Mr. President: | 0008| | 0009| Your CONSERVATION COMMITTEE, to whom has been referred | 0010| | 0011| SENATE BILL 396 | 0012| | 0013| has had it under consideration and reports same with | 0014| recommendation that it DO NOT PASS, but that | 0015| | 0016| SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR | 0017| SENATE BILL 396 | 0018| | 0019| DO PASS, and thence referred to the FINANCE COMMITTEE. | 0020| | 0021| Respectfully submitted, | 0022| | 0023| | 0024| | 0025| __________________________________ | 0001| Michael S. Sanchez, Chairman | 0002| | 0003| | 0004| Adopted_______________________ Not Adopted_______________________ | 0005| (Chief Clerk) (Chief Clerk) | 0006| | 0007| Date ________________________ | 0008| | 0009| | 0010| The roll call vote was 5 For 4 Against | 0011| Yes: 5 | 0012| No: Davis, Kysar, Lyons, Payne | 0013| Excused: Griego | 0014| Absent: None | 0015| | 0016| S0396C01 SENATE CONSERVATION COMMITTEE SUBSTITUTE FOR | 0017| SENATE BILL 396 | 0018| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0019| | 0020| | 0021| | 0022| | 0023| | 0024| | 0025| | 0001| AN ACT | 0002| RELATING TO WATER RIGHTS; PROVIDING FOR ADDITIONAL NOTICE | 0003| REQUIREMENTS WHEN APPLYING FOR SURFACE AND UNDERGROUND WATER | 0004| RIGHTS. | 0005| | 0006| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0007| Section 1. Section 72-5-4 NMSA 1978 (being Laws 1907, | 0008| Chapter 49, Section 26, as amended) is amended to read: | 0009| "72-5-4. ~~[151-132. Id.]~~ NOTICE--PUBLICATION.-- | 0010| A. Upon the filing of an application ~~[which]~~ | 0011| that complies with the provisions of this article and the | 0012| rules and regulations established ~~[thereunder]~~ pursuant to | 0013| this article, accompanied by the proper fees, the state | 0014| engineer shall instruct the applicant to publish notice | 0015| thereof, in a form prescribed by ~~[him]~~ the state engineer, | 0016| in ~~[some]~~ the newspaper ~~[of general]~~ with the largest | 0017| circulation ~~[in the stream system]~~ in the county within | 0018| which the proposed point of diversion would be located, once a | 0019| week for three consecutive weeks. ~~[Such]~~ The notice shall | 0020| give all essential facts as to the proposed appropriation; | 0021| among them, the places of appropriation and of use, amount of | 0022| water, the purpose for which it is to be used, name and address | 0023| of the applicant and the time when the application shall be | 0024| taken up by the state engineer for consideration. | 0025| Additionally, the applicant shall, within three working days | 0001| after the first publication, mail a copy of the published | 0002| notice by certified mail to: | 0003| (1) the owner of the nearest surface water | 0004| right of record in the office of the state engineer located | 0005| downstream from the applicant's proposed place of use, not | 0006| including the applicant; and | 0007| (2) the chairmen, as reflected in the files of | 0008| the office of the state engineer, of the two nearest water | 0009| distribution entities that: | 0010| (a) divert or control the diversion of water | 0011| at the same point of diversion as the applicant's proposed | 0012| diversion; or | 0013| (b) divert or control the diversion of water | 0014| from the nearest downstream point or points of diversion. | 0015| B. The applicant is presumed to have complied with | 0016| this section if he mails the notices required by this section | 0017| to the names and addresses obtained from or provided by the | 0018| office of the state engineer. If a water distribution entity | 0019| entitled to notice by mail does not have any name and address | 0020| information in the records of the office of the state engineer, | 0021| the applicant shall not be responsible for any failure to notify | 0022| that entity. The recipient of the notice shall be bound by the | 0023| time limits prescribed in the published notice. | 0024| C. Proof of publication and mailing as required | 0025| shall be filed with the state engineer within sixty days of his | 0001| instructions to make publication. In case of failure to file | 0002| satisfactory proof of publication and mailing in accordance with | 0003| the rules and regulations ~~[applicable thereto]~~, within the time | 0004| required, the application shall ~~[thereafter]~~ be treated as an | 0005| original application filed on the date of receipt of proofs of | 0006| publication and mailing in proper form. | 0007| D. For purposes of this section, "water distribution | 0008| entity" means a community acequia or ditch, irrigation district, | 0009| conservancy district, artesian conservancy district or private | 0010| corporate ditch of record in the office of the state engineer | 0011| located in the state." | 0012| Section 2. Section 72-5-23 NMSA 1978 (being Laws 1907, | 0013| Chapter 49, Section 44, as amended) is amended to read: | 0014| "72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF | 0015| USE.--All water used in this state for irrigation purposes, except | 0016| as otherwise provided in this article, shall be considered | 0017| appurtenant to the land upon which it is used, and the right to | 0018| use it upon the land shall never be severed from the land without | 0019| the consent of the owner of the land, but, by and with the consent | 0020| of the owner of the land, all or any part of the right may be | 0021| severed from the land, simultaneously transferred and become | 0022| appurtenant to other land, or may be transferred for other | 0023| purposes, without losing priority of right theretofore | 0024| established, if such changes can be made without detriment to | 0025| existing water rights and are not contrary to conservation of | 0001| water within the state and not detrimental to the public welfare | 0002| of the state, on the approval of an application of the owner by | 0003| the state engineer. Publication of notice of application, | 0004| mailing, opportunity for the filing of objections or protests | 0005| and a hearing on the application shall be provided as required by | 0006| Sections 72-5-4 and 72-5-5 NMSA 1978; provided that water | 0007| distribution entities entitled to notice by certified mail shall | 0008| additionally include the water distribution entities, if any, that | 0009| divert or control the diversion of water at the proposed former | 0010| place of use." | 0011| Section 3. Section 72-12-3 NMSA 1978 (being Laws 1931, | 0012| Chapter 131, Section 3, as amended) is amended to read: | 0013| "72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER-- | 0014| PUBLICATION OF NOTICE--PERMIT.-- | 0015| A. Any person, firm or corporation or any other entity | 0016| desiring to appropriate for beneficial use any of the waters | 0017| described in Chapter 72, Article 12 NMSA 1978 shall apply to the | 0018| state engineer in a form prescribed by him. In the application, | 0019| the applicant shall designate: | 0020| (1) the particular underground stream, channel, | 0021| artesian basin, reservoir or lake from which water will be | 0022| appropriated; | 0023| (2) the beneficial use to which the water will be | 0024| applied; | 0025| (3) the location of the proposed well; | 0001| (4) the name of the owner of the land on which the | 0002| well will be located; | 0003| (5) the amount of water applied for; | 0004| (6) the place of the use for which the water is de- | 0005| | 0006| sired; and | 0007| (7) if the use is for irrigation, the description | 0008| of the land to be irrigated and the name of the owner of the land. | 0009| B. If the well will be located on privately owned land | 0010| and the applicant is not the owner of the land or the owner or the | 0011| lessee of the mineral or oil and gas rights under the land, the | 0012| application shall be accompanied by an acknowledged statement | 0013| executed by the owner of the land that the applicant is granted | 0014| access across the owner's land to the drilling site and has | 0015| permission to occupy such portion of the owner's land as is | 0016| necessary to drill and operate the well. This subsection does not | 0017| apply to the state or any of its political subdivisions. If the | 0018| application is approved, the applicant shall have the permit and | 0019| statement, executed by the owner of the land, recorded in the | 0020| office of the county clerk of the county in which the land is | 0021| located. | 0022| C. No application shall be accepted by the state | 0023| engineer unless it is accompanied by all the information required | 0024| by Subsections A and B of this section. | 0025| D. Upon the filing of an application, the state engineer | 0001| shall cause to be published in ~~[a]~~ the newspaper ~~[of~~ | 0002| ~~general]~~ with the largest circulation in the county in which | 0003| the well will be located, at least once a week for three | 0004| consecutive weeks, a notice that the application has been filed | 0005| and that objections to the granting of the application may be | 0006| filed within ten days after the last publication of the notice. | 0007| Additionally, the applicant shall, within three working days | 0008| after the first publication, mail a copy of the published notice | 0009| by certified mail to: | 0010| (1) the owner of the nearest underground water | 0011| right of record in the office of the state engineer to the | 0012| proposed point of diversion, diverting from the same underground | 0013| source as set forth in the application, not including the | 0014| applicant; | 0015| (2) the owner of the nearest surface water right of | 0016| record in the office of the state engineer diverting down gradient | 0017| from the proposed point of diversion, not including the applicant; | 0018| and | 0019| (3) the chairmen, as reflected in the files of the | 0020| office of the state engineer, of the two nearest water | 0021| distribution entities that: | 0022| (a) divert or control the diversion of water | 0023| from the same point of diversion as the applicant's proposed | 0024| diversion; | 0025| (b) divert or control the diversion of | 0001| underground water from the same underground source as set forth in | 0002| the application; or | 0003| (c) divert or control the diversion of surface | 0004| water down gradient from the proposed point of diversion. | 0005| E. The applicant is presumed to have complied with this | 0006| section if he mails the notices required by this section to the | 0007| names and addresses obtained from or provided by the office of the | 0008| state engineer. If an owner or a water distribution entity | 0009| entitled to notice by mail does not have any name and address | 0010| information in the records of the office of the state engineer, | 0011| the applicant shall not be responsible for any failure to notify | 0012| that entity. The recipient of the notice shall be bound by the | 0013| time limits prescribed in the published notice. Any person, firm | 0014| or corporation or other entity objecting that the granting of the | 0015| application will impair the objector's water right shall have | 0016| standing to file objections or protests. Any person, firm or | 0017| corporation or other entity objecting that the granting of the | 0018| application will be contrary to the conservation of water within | 0019| the state or detrimental to the public welfare of the state and | 0020| showing that the objector will be substantially and specifically | 0021| affected by the granting of the application shall have standing to | 0022| file objections or protests. Provided, however, that the state of | 0023| New Mexico or any of its branches, agencies, departments, boards, | 0024| instrumentalities or institutions, and all political subdivisions | 0025| of the state and their agencies, instrumentalities and | 0001| institutions shall have standing to file objections or protests. | 0002| ~~[E.]~~ F. After the expiration of the time for filing | 0003| objections, if no objections have been filed, the state engineer | 0004| shall, if he finds that there are in the underground stream, | 0005| channel, artesian basin, reservoir or lake unappropriated waters | 0006| or that the proposed appropriation would not impair existing water | 0007| rights from the source, is not contrary to conservation of water | 0008| within the state and is not detrimental to the public welfare of | 0009| the state, grant the application and issue a permit to the | 0010| applicant to appropriate all or a part of the waters applied for, | 0011| subject to the rights of all prior appropriators from the source. | 0012| ~~[F.]~~ G. If objections or protests have been filed | 0013| within the time prescribed in the notice or if the state engineer | 0014| is of the opinion that the permit should not be issued, the state | 0015| engineer may deny the application without a hearing or, before he | 0016| acts on the application, may order that a hearing be held. He | 0017| shall notify the applicant of his action by certified mail sent to | 0018| the address shown in the application. | 0019| H. For purposes of this section, "water distribution | 0020| entity" means a community acequia or community ditch, irrigation | 0021| district, conservancy district, artesian conservancy district or | 0022| private corporate ditch of record in the office of the state | 0023| engineer located in the state." | 0024| Section 4. Section 72-12-7 NMSA 1978 (being Laws 1931, | 0025| Chapter 131, Section 7, as amended) is amended to read: | 0001| "72-12-7. CHANGE OF LOCATION OF WELL--CHANGE IN USE ON | 0002| APPLICATION--TEMPORARY CHANGE.-- | 0003| A. The owner of a water right may change the location of | 0004| his well or change the use of the water, but only upon application | 0005| to the state engineer and upon showing that the change will not | 0006| impair existing rights and will not be contrary to the | 0007| conservation of water within the state and will not be detrimental | 0008| to the public welfare of the state. The application may be | 0009| granted only after such advertisement, mailing and hearing as | 0010| are prescribed in the case of original applications; provided | 0011| that the water distribution entities entitled to notice by | 0012| certified mail shall additionally include the water distribution | 0013| entities, if any, that divert or control the diversion of water at | 0014| the proposed former place of use. | 0015| B. When the owner of a water right applies for a | 0016| temporary change of not to exceed one year for not more than three | 0017| acre-feet of water to a different location or to a different use, | 0018| or both, the state engineer shall make an investigation and, if | 0019| the change does not permanently impair any vested rights of | 0020| others, he shall enter an order authorizing the change. If he | 0021| finds that the change sought might impair vested rights, he shall | 0022| order advertisement and hearing as in other cases. | 0023| C. If objections or protests have been filed within the | 0024| time prescribed in the notice or if the state engineer is of the | 0025| opinion that the permit should not be issued, the state engineer | 0001| may deny the application or, before he acts on the application, | 0002| may order that a hearing be held. He shall notify the applicant | 0003| of his action by certified mail sent to the address shown in the | 0004| application." | 0005| |