HOUSE BILL 374
54th legislature - STATE OF NEW MEXICO - first session, 2019
Gail Armstrong and Candie G. Sweetser
RELATING TO WATER; REQUIRING THE IDENTIFICATION OF END USERS IN APPLICATIONS FOR THE APPROPRIATION OF UNDERGROUND WATER; ESTABLISHING PRIOR DECISIONS AS LEGAL PRECEDENT IF NOT CLEARLY INCORRECT OR DISTINGUISHED; PROVIDING GROUNDS TO REJECT AN APPLICATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. 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 end user of all or part of the water applied for is not the applicant itself, the application shall identify all actual end users, including an entity subject to Section 72-1-9 NMSA 1978, or another entity that provides water service to identifiable customers within reasonably limited and readily ascertainable service areas, such as existing subdivisions. The application shall include documentary evidence showing that the end user is contractually obligated to take and beneficially use all of the water applied for within a reasonable time. If there will be multiple end users, the amount each end user will apply to beneficial use shall be identified. The requirements of this subsection shall not apply to an applicant that is subject to Section 72-1-9 NMSA 1978, to an entity that provides water service to identifiable customers within reasonably limited and readily ascertainable service areas or to a developer who seeks water for a development.
[B.] C. 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.] D. No application shall be accepted by the state engineer unless it is accompanied by all the information required by Subsections A, [and] B and C of this section.
[D.] E. The prior decisions of the state engineer shall constitute legal precedent, which shall be binding on the state engineer in subsequent cases unless the prior decision was demonstrably incorrect or clearly distinguished on the basis of law or fact. In reaching a decision that reverses or is otherwise inconsistent with a prior decision regarding an appropriation from the same source or a hydrologically connected source, the state engineer shall make specific findings of fact and conclusions of law explaining why the prior decision was incorrect or distinguished.
F. 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.] G. 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. The state engineer shall reject an application as detrimental to the public welfare if the state engineer finds that the applicant's intention is to sell any permit the applicant may obtain without appropriating the water.
[F.] H. 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."
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