44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO WATER; PROVIDING FOR MUNICIPAL AUTHORITY TO LIMIT NEW WATER WELL DRILLING WITHIN THE MUNICIPALITY BY ORDINANCE; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.

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

Section 1. A new section of the Municipal Code is enacted to read:

"[NEW MATERIAL] NEW DOMESTIC WATER WELLS--MUNICIPAL AUTHORITY.--

A. A municipality may by ordinance restrict the drilling of wells within the exterior boundaries of that municipality.

B. A qualified municipality that fails to authorize the drilling of a new well shall provide domestic water service to the property owner under the municipal water provider's usual and customary charges and rate schedules.

C. A qualified municipality shall file with the state engineer its municipal ordinance restricting the drilling of wells.

D. An applicant for a domestic well permit to drill a well located within the exterior boundaries of a qualified municipality shall seek and obtain authorization to drill the well from the appropriate municipal official prior to submittal of the application to the state engineer.

E. If an applicant for a domestic well permit is authorized by a qualified municipality to drill a new well, the applicant shall submit the notice of authorization from the qualified municipality with the domestic well permit application to the state engineer.

F. Upon denial of authorization to drill a new well, a qualified municipality shall submit notice of the denial and the domestic well permit application to the state engineer.

G. The state engineer may approve or deny, in whole or in part, the application for a domestic well permit based on the authorization from the qualified municipality and may impose as he deems necessary conditions of approval.

H. Nothing in this section shall limit the authority of the state engineer to administer water rights as otherwise provided by law.

I. The state engineer shall not be liable for actions taken in accordance with the municipal ordinance authorizing restriction of the drilling of wells within the exterior boundaries of a qualified municipality.

J. As used in this section:

(1) "qualified municipality" means a municipality that has adopted an ordinance restricting the drilling of new wells within its exterior boundaries; and

(2) "well" means a domestic water well."

Section 2. Section 72-12-1 NMSA 1978 (being Laws 1931, Chapter 131, Section 1, as amended) is amended to read:

"72-12-1. UNDERGROUND WATERS DECLARED TO BE PUBLIC--APPLICATIONS FOR USE TO STATE ENGINEER--HEARINGS.--The water of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries, are declared to be public waters and to belong to the public and to be subject to appropriation for beneficial use. By reason of the varying amounts and time such water is used and the relatively small amounts of water consumed in the watering of livestock; in irrigation of not to exceed one acre of noncommercial trees, lawn or garden; in household or other domestic use, except as provided in Section 72-12-1.1 NMSA 1978; and in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural resources of the state, application for any such use shall be governed by the following provisions:

A. [any] a person, firm or corporation desiring to use [any] public waters described in this section for watering livestock; for irrigation of not to exceed one acre of noncommercial trees, lawn or garden; or for household or other domestic use shall make application to the state engineer on a form to be prescribed by him. Upon the filing of each application describing the use applied for, the state engineer shall issue a permit to the applicant to so use the waters applied for; provided that as part of an application for livestock watering use on state or federal land, the applicant shall submit proof that he:

(1) is legally entitled to place his livestock on the state or federal land where the water is to be used; and

(2) has been granted access to the drilling site and has permission to occupy the portion of the state or federal land [as] that is necessary to drill and operate the well; and

B. whenever [any] a person, firm or corporation or the state desires to use not to exceed three acre-feet of public water described in this section for a definite period of not to exceed one year in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural mineral resources of the state, only the application referred to in Section 72-12-3 NMSA 1978 shall be required. Separate application shall be made for each proposed use, whether in the same or in different basins. Upon the filing of [such applications] an application, the state engineer shall make an examination of the facts and, if he finds that the proposed use will not permanently impair any existing rights of others, he shall grant the application. If he finds that the proposed use sought will permanently impair such rights, then there shall be advertisement and hearing as provided in the case of applications made under Section 72-12-3 NMSA 1978."

Section 3. A new Section 72-12-1.1 NMSA 1978 is enacted to read:

"72-12-1.1. [NEW MATERIAL] DOMESTIC WELLS--MUNICIPAL AUTHORITY TO RESTRICT DRILLING.--

A. A municipality may by ordinance restrict the drilling of wells within the exterior boundaries of that municipality.

B. A qualified municipality that fails to authorize the drilling of a new well shall provide domestic water service to the property owner under the municipal water provider's usual and customary charges and rate schedules.

C. A qualified municipality shall file with the state engineer its municipal ordinance restricting the drilling of wells.

D. An applicant for a domestic well permit to drill a well located within the exterior boundaries of a qualified municipality shall seek and obtain authorization to drill the well from the appropriate municipal official prior to submittal of the application to the state engineer. E. If an applicant for a domestic well permit is authorized by a qualified municipality to drill a new well, the applicant shall submit the notice of authorization from the qualified municipality with the domestic well permit application to the state engineer.

F. Upon denial of authorization to drill a new well, a qualified municipality shall submit notice of the denial and the domestic well permit application to the state engineer.

G. The state engineer may approve or deny, in whole or in part, the application for a domestic well permit based on the authorization from the qualified municipality and may impose as he deems necessary conditions of approval. H. Nothing in this section shall limit the authority of the state engineer to administer water rights as otherwise provided by law.

I. The state engineer shall not be liable for actions taken in accordance with the municipal ordinance authorizing restriction of the drilling of wells within the exterior boundaries of a qualified municipality.

J. As used in this section:

(1) "qualified municipality" means a municipality that has adopted an ordinance restricting the drilling of new wells within its exterior boundaries; and

(2) "well" means a domestic water well."