SB0665

SENATE BILL 665

52nd legislature - STATE OF NEW MEXICO - first session, 2015

INTRODUCED BY

Ron Griggs

AN ACT

RELATING TO WATER; ALLOWING THE USE OF A LEASED WATER RIGHT DURING THE PENDENCY OF THE HEARING PROCESS FOR A LIMITED PERIOD AND LIMITED AMOUNT OF WATER; ALLOWING THE DRILLING OF SUPPLEMENTAL OR REPLACEMENT WELLS FOR THE AMOUNT OF WATER ORIGINALLY PERMITTED TO OR DECLARED BY THE WATER RIGHT OWNER REGARDLESS OF THE AMOUNT OF HISTORIC BENEFICIAL USE OF THE WATER; REQUIRING THE FILING OF CERTAIN EVIDENCE BY PROTESTANTS TO DETERMINE STANDING IN ADMINISTRATIVE HEARINGS ON WATER RIGHTS ISSUES; PROVIDING THAT THE NON-USE OF WATER DOES NOT AUTOMATICALLY RESULT IN THE LOSS OF WATER RIGHTS IN CERTAIN INSTANCES.

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

SECTION 1. Section 72-1-9 NMSA 1978 (being Laws 1985, Chapter 198, Section 1, as amended) is amended to read:

"72-1-9. MUNICIPAL, COUNTY, MEMBER-OWNED COMMUNITY WATER SYSTEMS, SCHOOL DISTRICT AND STATE UNIVERSITY WATER DEVELOPMENT PLANS--PRESERVATION OF MUNICIPAL, COUNTY AND STATE UNIVERSITY WATER SUPPLIES.--

A. It is recognized by the state that it promotes the public welfare and the conservation of water within the state for municipalities, counties, school districts, state universities, member-owned community water systems, special water users' associations, water and sanitation districts and public utilities supplying water to municipalities or counties to plan for the reasonable development and use of water resources. The state further recognizes the state engineer's administrative policy of not allowing municipalities, member-owned community water systems, water and sanitation districts, counties and state universities to acquire and hold unused water rights in an amount greater than their reasonable needs within forty years.

B. Municipalities, counties, school districts, state universities, member-owned community water systems, special water users' associations, water and sanitation districts and public utilities supplying water to municipalities or counties shall be allowed a water use planning period not to exceed forty years, and water rights for municipalities, counties, school districts, state universities, water and sanitation districts, member-owned community water systems, special water users' associations and public utilities supplying water to such municipalities or counties shall be based upon a water development plan the implementation of which shall not exceed a forty-year period from the date of the application for an appropriation or a change of place or purpose of use pursuant to a water development plan or for preservation of a municipal, county, school district, member-owned community water system, water and sanitation district or state university water supply for reasonably projected additional needs within forty years.

C. A water right acquired and held unused pursuant to the provisions of this section shall not be automatically lost after forty years, except by statutory forfeiture or judicial proceedings to prove abandonment."

SECTION 2. Section 72-6-4 NMSA 1978 (being Laws 1967, Chapter 100, Section 4) is amended to read:

"72-6-4. LESSEE'S APPLICATION--USE BEFORE APPROVAL.--

A. Prior to [his] the use of [such] the water, the lessee shall apply to the state engineer requesting approval for the use and location of use to which [such] the water will be put. The state engineer shall prescribe the form of [such] the application and may require any information pertinent to the matter.

B. Notwithstanding the provisions of Section 72-6-6 NMSA 1978, the state engineer may approve a lessee's use of water during the pendency of the hearing process for leases of less than three years for less than two hundred acre-feet per year."

SECTION 3. 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--STANDING OF PROTESTANTS.--

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 in a newspaper that is published and distributed in the county where the well will be located and in each county where the water will be or has been put to beneficial use or where other water rights may be affected, or if there is no such newspaper, then in some newspaper of general circulation in the county in which the well will be located, at least once a week for three consecutive weeks, a notice that the application has been filed and that objections to the granting of the application may be filed within ten days after the last publication of the notice. Any person, firm or corporation or other entity objecting that the granting of the application will impair the objector's water right shall have standing to file objections or protests. Any person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state and showing that the objector will be substantially and specifically affected by the granting of the application shall have standing to file objections or protests; provided, however, that the state [of New Mexico] or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions shall have standing to file objections or protests.

E. If alleging impairment to the protestant's water right, the protestant shall provide evidence of a valid existing water right, which shall include:

(1) the protestant's state engineer water right file number; or

(2) if there is no state engineer file number, a description of the affected water rights that specifies the place and purpose of use, amount of beneficial use, point of diversion, name of water source, whether aquifer or stream, and priority date of the water right; and

(3) such other evidence that the state engineer may require.

F. If the protestant is alleging that granting an application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state, the protestant shall provide evidence that the protestant will be substantially and specifically affected by the granting of the application. Alleged impairment to the protestant's water right cannot also be the basis to claim the protestant is substantially and specifically affected by the granting of the application.

G. Evidence of a protestant's standing shall be included in the written protest filed within ten days after the last publication of the notice required by Subsection D of this section. No late or amended protests shall be allowed. A protestant's participation in a state engineer administrative hearing shall be limited to those issues contained in the written protest. An applicant may seek to recover attorney fees and costs for a frivolous protest.

[E.] H. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if [he] the state engineer finds that there are in the underground stream, channel, artesian basin, reservoir or lake unappropriated waters or that the proposed appropriation would not impair existing water rights from the source, is not contrary to conservation of water within the state and is not detrimental to the public welfare of the state, grant the application and issue a permit to the applicant to appropriate all or a part of the waters applied for, subject to the rights of all prior appropriators from the source.

[F.] I. 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 4. Section 72-12-22 NMSA 1978 (being Laws 1959, Chapter 41, Section 1) is amended to read:

"72-12-22. REPLACEMENT WELL WITHIN ONE HUNDRED FEET.--

A. The owner of a water right may drill and use a replacement well drilled within one hundred feet of the original well prior to application to the state engineer and the publication and hearing set out in Section [75-11-3 New Mexico Statutes Annotated, 1953 Compilation] 72-12-3 NMSA 1978 if:

(1) the well is drilled into the same [and only the same] underground stream, channel, artesian basin, reservoir or lake as the original well; [and]

(2) the appropriation is of the same amount of water allowed by [his] the owner's water right in the original well; [and]

(3) an emergency situation exists in which the delay caused by application, publication and hearing would result in crop loss or other serious economic loss; and

(4) [he] the owner files an application or notifies the office of the state engineer [office] of these facts and the location of the proposed replacement well by registered letter, prior to drilling; provided that [he] the owner shall file application for a permit within [30] thirty days after drilling begins.

B. The owners of other water rights, who claim to be injured by the drilling of a replacement well under these circumstances, may not enjoin the drilling of such a well or the use of the water from the well, but are limited to an action at law to recover damages and to their right to protest the granting of a permit.

C. For the purposes of this section, the amount of water available for appropriation is the greater of the amount of water put to full beneficial use by the water right's owner, the amount of the owner's permitted water right or the amount of the owner's declared water right; provided that at least some portion of the owner's permitted or declared water right previously has been put to beneficial use."

SECTION 5. Section 72-12-23 NMSA 1978 (being Laws 1959, Chapter 41, Section 2) is amended to read:

"72-12-23. REPLACEMENT WELL OVER ONE HUNDRED FEET FROM ORIGINAL WELL.--

A. The owner of a water right may drill and use a replacement well drilled over one hundred feet from [his] the owner's original well upon making application but without waiting for the completion of the publication and hearing set out in Section [75-11-3 New Mexico Statutes Annotated, 1953 Compilation] 72-12-3 NMSA 1978 if:

(1) the well is drilled into the same [and only the same] underground stream, channel, artesian basin, reservoir or lake as the original well; [and]

(2) the appropriation is of the same amount of water allowed by [his] the owner's water right in the original well; [and]

(3) an emergency situation exists in which the delay caused by publication and hearing would result in crop loss or other serious economic loss; and

(4) the state engineer, after a preliminary investigation, finds the change does not impair existing water rights and grants [him] a permit authorizing the drilling and use of the replacement well prior to the publication and hearing.

B. When the preliminary investigation by the state engineer causes [him] the state engineer to reasonably believe that the drilling and use of a replacement well may impair existing rights, then no permit shall be issued until after publication and hearing.

SECTION 6. Section 72-12-24 NMSA 1978 (being Laws 1959, Chapter 41, Section 3) is amended to read:

"72-12-24. SUPPLEMENTAL WELL.--

A. The owner of a water right may drill and use a supplemental well upon making application but prior to the publication and hearing set out in Section [75-11-3 New Mexico Statutes Annotated, 1953 Compilation] 72-12-3 NMSA 1978 if:

(1) the supplemental well is drilled into the same [and only the same] underground stream, channel, artesian basin, reservoir or lake as the well being supplemented; [and]

(2) the supplemental well does not increase the appropriation of water to an amount above the existing water right; [and]

(3) an emergency situation exists in which the delay caused by publication and hearing would result in crop loss or other serious economic loss; and

(4) the state engineer, after a preliminary investigation, finds that the supplemental well does not impair existing water rights and grants [him] a permit authorizing the drilling and use of the supplemental well prior to publication and hearing.

B. If the preliminary investigation by the state engineer causes [him] the state engineer to reasonably believe that the drilling and use of a supplemental well may impair existing rights, then no permit shall be issued until after publication and hearing.

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