0001| HOUSE BILL 482
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0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
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0003| INTRODUCED BY
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0004| STEVEN E. PEARCE
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0005|
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0006|
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0007|
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0008| FOR THE WATER, UTILITIES AND NATURAL RESOURCES COMMITTEE
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0009|
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0010| AN ACT
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0011| RELATING TO WATER; REQUIRING NOTICE TO MUNICIPALITIES AND
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0012| COUNTIES WITH JURISDICTION IN THE LOCATIONS OF PROPOSED WATER
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0013| RIGHTS DIVERSIONS AND TRANSFERS; AMENDING CERTAIN SECTIONS OF
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0014| THE NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 72-5-4 NMSA 1978 (being Laws 1907,
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0018| Chapter 49, Section 26, as amended) is amended to read:
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0019| "72-5-4. [151-132. Id.] NOTICE [PUBLICATION].--
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0020| A. Upon the filing of an application [which]
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0021| that complies with the provisions of this article and
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0022| [the] rules [and regulations] established [thereunder]
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0023| by the state engineer, accompanied by the proper fees, the
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0024| state engineer shall instruct the applicant to:
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0025| (1) publish notice [thereof, in a form
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prescribed by him] of the application in [some newspaper]
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0002| two newspapers of general circulation in the [stream
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system] county where the requested appropriation is to be
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0004| located once a week for three consecutive weeks [Such notice
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shall give all essential facts as to the proposed
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appropriation; among them, the places of appropriation and of
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use, amount of water, the purpose for which it is to be used,
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name and address of applicant and the time when the
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application shall be taken up by the state engineer for
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consideration. Proof];
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0011| (2) provide written notice of the application
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0012| to each municipality and county having jurisdiction in the
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0013| county where the requested appropriation is to be located, by
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0014| certified, return receipt requested mail, addressed to the
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0015| clerk of each municipality or county provided notice; and
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0016| (3) provide written notice of the application
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0017| to a political subdivision of the state within the county
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0018| where the requested appropriation is to be located that has
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0019| registered with the state engineer to receive notice, by
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0020| certified, return receipt requested mail.
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0021| B. The notice of the application shall state the
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0022| facts of the proposed application, including the places of
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0023| appropriation, the use of the appropriation proposed, the
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0024| amount of water proposed to be appropriated and the name and
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0025| address of the applicant. The notice shall state that
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0001| objections or protests to the granting of the application may
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0002| be filed within ten days after the date of the last
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0003| publication of the notice or after the date of the written
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0004| notice provided, whichever is later.
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0005| C. Proofs of publication [as required] and
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0006| mailed written notice shall be filed with the state engineer
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0007| within sixty days of his instructions to the applicant to
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0008| make publication. [In case of] Failure to timely file
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0009| satisfactory proof of publication [in accordance with the
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rules and regulations applicable thereto, within the time
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required] shall cause the application [shall thereafter]
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0012| to be treated as [an original application] filed on the
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0013| date of actual receipt by the state engineer of proofs
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0014| of publication and notice in proper form.
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0015| D. The state engineer may post notice of the
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0016| application on the internet.
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0017| E. The state engineer shall promulgate rules to
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0018| implement the provisions of this section providing for
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0019| publication and written mailed notice."
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0020| Section 2. Section 72-5-5 NMSA 1978 (being Laws 1965,
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0021| Chapter 285, Section 6, as amended) is amended to read:
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0022| "72-5-5. OBJECTIONS TO APPLICATIONS--[PUBLICATION OF
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NOTICE] FILING OF PROTESTS--DEFINITION OF STANDING.--
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0024| A. [Whenever an application is filed which
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requires advertisement by virtue of the provisions of Chapter
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72, Article 5 NMSA 1978, the advertisement shall state that
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objections or protests to the granting of the application may
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be filed with the state engineer within ten days after the
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last publication of the notice.] If an objection or protest
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0005| to an application filed pursuant to Chapter 72, Article 5
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0006| NMSA 1978 is timely filed, the state engineer shall advise
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0007| interested parties, and a hearing shall be held as otherwise
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0008| provided by statute.
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0009| B. Any person, firm or corporation or other entity
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0010| objecting that the granting of the application will be
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0011| detrimental to the objector's water right shall have standing
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0012| to file objections or protests. Any person, firm or
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0013| corporation or other entity objecting that the granting of the
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0014| application will be contrary to the conservation of water
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0015| within the state or detrimental to the public welfare of the
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0016| state and showing that the objector will be substantially and
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0017| specifically affected by the granting of the application shall
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0018| have standing to file objections or protests. Provided,
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0019| however, that the state of New Mexico or any of its branches,
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0020| agencies, departments, boards, instrumentalities or
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0021| institutions and all political subdivisions of the state and
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0022| their agencies, instrumentalities and institutions shall have
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0023| standing to file objections or protests."
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0024| Section 3. Section 72-5-23 NMSA 1978 (being Laws 1907,
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0025| Chapter 49, Section 44, as amended) is amended to read:
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0001| "72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF
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0002| USE--PUBLICATION AND WRITTEN NOTICE OF APPLICATION.--
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0003| A. All water used in this state for irrigation
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0004| purposes, except as otherwise provided in this article, shall
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0005| be considered appurtenant to the land upon which it is used,
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0006| and the right to use it upon the land shall never be severed
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0007| from the land without the consent of the owner of the land,
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0008| but, by and with the consent of the owner of the land, all or
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0009| any part of the right may be severed from the land,
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0010| simultaneously transferred and become appurtenant to other
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0011| land, or may be transferred for other purposes, without losing
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0012| priority of right theretofore established, if such changes can
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0013| be made without detriment to existing water rights and are not
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0014| contrary to conservation of water within the state and not
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0015| detrimental to the public welfare of the state, on the
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0016| approval of an application of the owner by the state engineer.
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0017| [Publication of]
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0018| B. Notice of the application, by both
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0019| publication and written notice, opportunity for the filing of
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0020| objections or protests and a hearing on the application shall
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0021| be provided as required by Sections 72-5-4 and 72-5-5 NMSA
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0022| 1978 for both the move-from location and the move-to location
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0023| of the transfer if those locations are in different
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0024| counties."
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0025| Section 4. Section 72-12-3 NMSA 1978 (being Laws 1931,
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0001| Chapter 131, Section 3, as amended) is amended to read:
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0002| "72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER--
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0003| PUBLICATION OF NOTICE--PERMIT.--
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0004| A. Any person, firm or corporation or any other
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0005| entity desiring to appropriate for beneficial use any of the
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0006| waters described in Chapter 72, Article 12 NMSA 1978 shall
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0007| apply to the state engineer in a form prescribed by him. In
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0008| the application, the applicant shall designate:
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0009| (1) the particular underground stream,
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0010| channel, artesian basin, reservoir or lake from which water
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0011| will be appropriated;
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0012| (2) the beneficial use to which the water
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0013| will be applied;
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0014| (3) the location of the proposed well;
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0015| (4) the name of the owner of the land on
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0016| which the well will be located;
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0017| (5) the amount of water applied for;
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0018| (6) the place of the use for which the water
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0019| is desired; and
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0020| (7) if the use is for irrigation, the
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0021| description of the land to be irrigated and the name of the
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0022| owner of the land.
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0023| B. If the well will be located on privately owned
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0024| land and the applicant is not the owner of the land or the
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0025| owner or the lessee of the mineral or oil and gas rights under
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0001| the land, the application shall be accompanied by an
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0002| acknowledged statement executed by the owner of the land that
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0003| the applicant is granted access across the owner's land to the
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0004| drilling site and has permission to occupy such portion of the
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0005| owner's land as is necessary to drill and operate the well.
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0006| This subsection does not apply to the state or any of its
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0007| political subdivisions. If the application is approved, the
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0008| applicant shall have the permit and statement, executed by the
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0009| owner of the land, recorded in the office of the county clerk
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0010| of the county in which the land is located.
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0011| C. No application shall be accepted by the state
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0012| engineer unless it is accompanied by all the information
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0013| required by Subsections A and B of this section.
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0014| D. Upon the filing of an application, the state
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0015| engineer shall [cause to be published in a newspaper]
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0016| instruct the applicant to:
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0017| (1) publish notice of the application in two
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0018| newspapers of general circulation in the county in which the
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0019| well will be located, at least once a week for three
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0020| consecutive weeks [a notice that the application has been
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filed and that objections to the granting of the application
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may be filed within ten days after the last publication of the
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notice];
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0024| (2) provide written notice of the
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0025| application to each municipality and county having
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0001| jurisdiction in the county where the requested appropriation
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0002| is to be located, by certified, return receipt requested mail,
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0003| addressed to the clerk of each municipality or county provided
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0004| notice; and
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0005| (3) provide written notice of the application
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0006| to a political subdivision of the state within the county
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0007| where the requested appropriation is to be located that has
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0008| registered with the state engineer to receive notice by
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0009| certified, return receipt requested mail.
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0010| E. The notice of the application shall state the
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0011| facts of the proposed application, including the diversion
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0012| locations of the appropriation, the use of the appropriation
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0013| proposed, the amount of water proposed to be appropriated and
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0014| the name and address of the applicant. The notice shall state
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0015| that objections or protests to the granting of the application
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0016| may be filed within ten days after the date of the last
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0017| publication of the notice or after the date of the written
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0018| notice provided, whichever is later.
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0019| F. The state engineer may post notice of the
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0020| application on the internet.
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0021| G. The state engineer shall promulgate rules to
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0022| implement the provisions of this section providing for
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0023| publication and written mailed notice.
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0024| H. Any person, firm or corporation or other
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0025| entity objecting that the granting of the application will
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0001| impair the objector's water right shall have standing to file
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0002| objections or protests. Any person, firm or corporation or
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0003| other entity objecting that the granting of the application
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0004| will be contrary to the conservation of water within the state
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0005| or detrimental to the public welfare of the state and showing
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0006| that the objector will be substantially and specifically
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0007| affected by the granting of the application shall have
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0008| standing to file objections or protests. Provided, however,
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0009| that the state of New Mexico or any of its branches, agencies,
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0010| departments, boards, instrumentalities or institutions, and
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0011| all political subdivisions of the state and their agencies,
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0012| instrumentalities and institutions shall have standing to file
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0013| objections or protests.
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0014| [E.] I. After the expiration of the time for
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0015| filing objections, if no objections have been filed, the state
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0016| engineer shall, if he finds that there are in the underground
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0017| stream, channel, artesian basin, reservoir or lake
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0018| unappropriated waters or that the proposed appropriation would
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0019| not impair existing water rights from the source, is not
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0020| contrary to conservation of water within the state and is not
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0021| detrimental to the public welfare of the state, grant the
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0022| application and issue a permit to the applicant to appropriate
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0023| all or a part of the waters applied for, subject to the rights
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0024| of all prior appropriators from the source.
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0025| [F.] J. If objections or protests have been
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0001| filed within the time prescribed in the notice or if the state
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0002| engineer is of the opinion that the permit should not be
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0003| issued, the state engineer may deny the application without a
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0004| hearing or, before he acts on the application, may order that
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0005| a hearing be held. He shall notify the applicant of his
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0006| action by certified mail sent to the address shown in the
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0007| application."
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0008| Section 5. Section 72-12-7 NMSA 1978 (being Laws 1931,
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0009| Chapter 131, Section 7, as amended) is amended to read:
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0010| "72-12-7. CHANGE OF LOCATION OF WELL--CHANGE IN USE ON
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0011| APPLICATION--TEMPORARY CHANGE.--
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0012| A. The owner of a water right may change the
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0013| location of his well or change the use of the water, but only
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0014| upon application to the state engineer and upon showing that
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0015| the change will not impair existing rights and will not be
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0016| contrary to the conservation of water within the state and
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0017| will not be detrimental to the public welfare of the state.
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0018| The application may be granted only after such
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0019| [advertisement] notices for both the move-from location and
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0020| the move-to location of the transfer, if those locations are
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0021| in different counties, and hearing as are prescribed in the
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0022| case of original applications.
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0023| B. When the owner of a water right applies for a
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0024| temporary change of not to exceed one year for not more than
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0025| three acre-feet of water to a different location or to a
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0001| different use, or both, the state engineer shall make an
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0002| investigation and, if the change does not permanently impair
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0003| any vested rights of others, he shall enter an order
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0004| authorizing the change. If he finds that the change sought
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0005| might impair vested rights, he shall order [advertisement]
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0006| notices for both the move-from location and the move-to
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0007| location of the transfer, if those locations are in different
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0008| counties, and hearing as in other cases.
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0009| C. If objections or protests have been filed
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0010| within the time prescribed in the [notice] notices or if
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0011| the state engineer is of the opinion that the permit should
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0012| not be issued, the state engineer may deny the application or,
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0013| before he acts on the application, may order that a hearing be
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0014| held. He shall notify the applicant of his action by
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0015| certified mail sent to the address shown in the application."
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0016| Section 6. Section 72-12B-1 NMSA 1978 (being Laws 1983,
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0017| Chapter 2, Section 1, as amended) is amended to read:
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0018| "72-12B-1. APPLICATIONS FOR THE TRANSPORTATION AND USE
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0019| OF PUBLIC WATERS OUTSIDE THE STATE.--
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0020| A. The state of New Mexico has long recognized the
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0021| importance of the conservation of its public waters and the
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0022| necessity to maintain adequate water supplies for the state's
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0023| water requirements. The state of New Mexico also recognizes
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0024| that under appropriate conditions the out-of-state
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0025| transportation and use of its public waters is not in conflict
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0001| with the public welfare of its citizens or the conservation of
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0002| its waters.
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0003| B. Any person, firm or corporation or any other
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0004| entity intending to withdraw water from any surface or
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0005| underground water source in the state of New Mexico and
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0006| transport it for use outside the state or to change the place
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0007| or purpose of use of a water right from a place in New Mexico
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0008| to a place out of that state shall apply to the state engineer
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0009| for a permit to do so. Upon the filing of an application, the
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0010| state engineer shall cause to be published in [a newspaper]
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0011| two newspapers of general circulation in the county in which
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0012| the well will be located or [the stream system] from
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0013| [which] where surface water will be taken, at least once a
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0014| week for three consecutive weeks, a notice that the
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0015| application has been filed and that objections to the granting
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0016| of the application may be filed within ten days after the last
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0017| publication of the notice. The state engineer shall require
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0018| the applicant to provide written notice of the application to
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0019| a political subdivision of the state within the county where
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0020| the requested appropriation is to be located that has
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0021| registered with the state engineer to receive notice, by
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0022| certified, return receipt requested mail; and to each
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0023| municipality and county having jurisdiction in the county
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0024| where the requested appropriation is to be located, by
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0025| certified, return receipt requested mail, addressed to the
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0001| clerk of each municipality or county provided notice. The
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0002| state engineer may post notice of the application on the
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0003| internet. Any person, firm or corporation or other entity
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0004| objecting that the granting of the application would impair or
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0005| be detrimental to the objector's water right shall have
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0006| standing to file objections or protests. Any person, firm or
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0007| corporation or other entity objecting that the granting of the
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0008| application will be contrary to the conservation of water
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0009| within the state or detrimental to the public welfare of the
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0010| state and showing that the objector will be substantially and
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0011| specifically affected by the granting of the application shall
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0012| have standing to file objections or protests. Provided,
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0013| however, that the state of New Mexico or any of its branches,
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0014| agencies, departments, boards, instrumentalities or
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0015| institutions, and all political subdivisions of the state and
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0016| their agencies, instrumentalities and institutions shall have
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0017| standing to file objections or protests. The state engineer
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0018| shall accept for filing and act upon all applications filed
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0019| under this section in accordance with the provisions of this
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0020| section. The state engineer shall require notice of the
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0021| application and shall thereafter proceed to consider the
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0022| application in accordance with existing administrative law and
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0023| procedure governing the appropriation of surface or ground
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0024| water.
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0025| C. In order to approve an application under this
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0001| act, the state engineer must find that the applicant's
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0002| withdrawal and transportation of water for use outside the
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0003| state would not impair existing water rights, is not contrary
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0004| to the conservation of water within the state and is not
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0005| otherwise detrimental to the public welfare of the citizens of
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0006| New Mexico.
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0007| D. In acting upon an application under this act,
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0008| the state engineer shall consider, but not be limited to, the
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0009| following factors:
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0010| (1) the supply of water available to the
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0011| state of New Mexico;
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0012| (2) water demands of the state of New Mexico;
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0013| (3) whether there are water shortages within
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0014| the state of New Mexico;
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0015| (4) whether the water that is the subject of
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0016| the application could feasibly be transported to alleviate
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0017| water shortages in the state of New Mexico;
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0018| (5) the supply and sources of water available
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0019| to the applicant in the state where the applicant intends to
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0020| use the water; and
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0021| (6) the demands placed on the applicant's
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0022| supply in the state where the applicant intends to use the
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0023| water.
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0024| E. By filing an application to withdraw and
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0025| transport waters for use outside the state, the applicant
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0001| shall submit to and comply with the laws of the state of New
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0002| Mexico governing the appropriation and use of water.
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0003| F. The state engineer is empowered to condition
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0004| the permit to [insure] ensure that the use of water in
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0005| another state is subject to the same regulations and
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0006| restrictions that may be imposed upon water use in the state
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0007| of New Mexico.
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0008| G. Upon approval of the application, the applicant
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0009| shall designate an agent in New Mexico for reception of
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0010| service of process and other legal notices."
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0011|
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