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