0001| HOUSE BILL 482
|
0002| 43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
|
0003| INTRODUCED BY
|
0004| STEVEN E. PEARCE
|
0005|
|
0006|
|
0007|
|
0008| FOR THE WATER, UTILITIES AND NATURAL RESOURCES COMMITTEE
|
0009|
|
0010| AN ACT
|
0011| RELATING TO WATER; REQUIRING NOTICE TO MUNICIPALITIES AND
|
0012| COUNTIES WITH JURISDICTION IN THE LOCATIONS OF PROPOSED WATER
|
0013| RIGHTS DIVERSIONS AND TRANSFERS; AMENDING CERTAIN SECTIONS OF
|
0014| THE NMSA 1978.
|
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]~
|
0021| |that| complies with the provisions of this article and
|
0022| ~[the]~ rules ~[and regulations]~ established ~[thereunder]~
|
0023| |by the state engineer|, accompanied by the proper fees, the
|
0024| state engineer shall instruct the applicant to:
|
0025| |(1)| publish notice ~[thereof, in a form
|
- 1 -
0001| prescribed by him]~ |of the application| in ~[some newspaper]~
|
0002| |two newspapers| of general circulation in the ~[stream
|
0003| system]~ |county where the requested appropriation is to be
|
0004| located| once a week for three consecutive weeks ~[Such notice
|
0005| shall give all essential facts as to the proposed
|
0006| appropriation; among them, the places of appropriation and of
|
0007| use, amount of water, the purpose for which it is to be used,
|
0008| name and address of applicant and the time when the
|
0009| application shall be taken up by the state engineer for
|
0010| consideration. Proof]~; |
|
0011| (2) provide written notice of the application
|
0012| to each municipality and county having jurisdiction in the
|
0013| county where the requested appropriation is to be located, by
|
0014| certified, return receipt requested mail, addressed to the
|
0015| clerk of each municipality or county provided notice; and
|
0016| (3) provide written notice of the application
|
0017| to a political subdivision of the state within the county
|
0018| where the requested appropriation is to be located that has
|
0019| registered with the state engineer to receive notice, by
|
0020| certified, return receipt requested mail.
|
0021| B. The notice of the application shall state the
|
0022| facts of the proposed application, including the places of
|
0023| appropriation, the use of the appropriation proposed, the
|
0024| amount of water proposed to be appropriated and the name and
|
0025| address of the applicant. The notice shall state that
|
- 2 -
0001| objections or protests to the granting of the application may
|
0002| be filed within ten days after the date of the last
|
0003| publication of the notice or after the date of the written
|
0004| notice provided, whichever is later.
|
0005| C. Proofs| of publication ~[as required]~ |and
|
0006| mailed written notice| shall be filed with the state engineer
|
0007| within sixty days of his instructions |to the applicant| to
|
0008| make publication. ~[In case of]~ Failure to |timely| file
|
0009| satisfactory proof of publication ~[in accordance with the
|
0010| rules and regulations applicable thereto, within the time
|
0011| required]~ |shall cause| the application ~[shall thereafter]~
|
0012| |to| be treated as ~[an original application]~ filed on the
|
0013| date of |actual| receipt |by the state engineer| of|| proofs
|
0014| of publication |and notice| in proper form.
|
0015| |D. The state engineer may post notice of the
|
0016| application on the internet.
|
0017| E. The state engineer shall promulgate rules to
|
0018| implement the provisions of this section providing for
|
0019| publication and written mailed notice.|"
|
0020| Section 2. Section 72-5-5 NMSA 1978 (being Laws 1965,
|
0021| Chapter 285, Section 6, as amended) is amended to read:
|
0022| "72-5-5. OBJECTIONS TO APPLICATIONS--~[PUBLICATION OF
|
0023| NOTICE]~ FILING OF PROTESTS--DEFINITION OF STANDING.--
|
0024| A. ~[Whenever an application is filed which
|
0025| requires advertisement by virtue of the provisions of Chapter
|
- 3 -
0001| 72, Article 5 NMSA 1978, the advertisement shall state that
|
0002| objections or protests to the granting of the application may
|
0003| be filed with the state engineer within ten days after the
|
0004| last publication of the notice.]~ If |an| objection or protest
|
0005| |to an application filed pursuant to Chapter 72, Article 5
|
0006| NMSA 1978| is timely filed, the state engineer shall advise
|
0007| interested parties, and a hearing shall be held as otherwise
|
0008| provided by statute.
|
0009| B. Any person, firm or corporation or other entity
|
0010| objecting that the granting of the application will be
|
0011| detrimental to the objector's water right shall have standing
|
0012| to file objections or protests. Any person, firm or
|
0013| corporation or other entity objecting that the granting of the
|
0014| application will be contrary to the conservation of water
|
0015| within the state or detrimental to the public welfare of the
|
0016| state and showing that the objector will be substantially and
|
0017| specifically affected by the granting of the application shall
|
0018| have standing to file objections or protests. Provided,
|
0019| however, that the state of New Mexico or any of its branches,
|
0020| agencies, departments, boards, instrumentalities or
|
0021| institutions and all political subdivisions of the state and
|
0022| their agencies, instrumentalities and institutions shall have
|
0023| standing to file objections or protests."
|
0024| Section 3. Section 72-5-23 NMSA 1978 (being Laws 1907,
|
0025| Chapter 49, Section 44, as amended) is amended to read:
|
- 4 -
0001| "72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF
|
0002| USE--|PUBLICATION AND WRITTEN NOTICE OF APPLICATION|.--
|
0003| |A.| All water used in this state for irrigation
|
0004| purposes, except as otherwise provided in this article, shall
|
0005| be considered appurtenant to the land upon which it is used,
|
0006| and the right to use it upon the land shall never be severed
|
0007| from the land without the consent of the owner of the land,
|
0008| but, by and with the consent of the owner of the land, all or
|
0009| any part of the right may be severed from the land,
|
0010| simultaneously transferred and become appurtenant to other
|
0011| land, or may be transferred for other purposes, without losing
|
0012| priority of right theretofore established, if such changes can
|
0013| be made without detriment to existing water rights and are not
|
0014| contrary to conservation of water within the state and not
|
0015| detrimental to the public welfare of the state, on the
|
0016| approval of an application of the owner by the state engineer.
|
0017| ~[Publication of]~
|
0018| |B.| Notice of |the| application, |by both
|
0019| publication and written notice|, opportunity for the filing of
|
0020| objections or protests and a hearing on the application shall
|
0021| be provided as required by Sections 72-5-4 and 72-5-5 NMSA
|
0022| 1978 |for both the move-from location and the move-to location
|
0023| of the transfer if those locations are in different
|
0024| counties|."
|
0025| Section 4. Section 72-12-3 NMSA 1978 (being Laws 1931,
|
- 5 -
0001| Chapter 131, Section 3, as amended) is amended to read:
|
0002| "72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER--
|
0003| PUBLICATION OF NOTICE--PERMIT.--
|
0004| A. Any person, firm or corporation or any other
|
0005| entity desiring to appropriate for beneficial use any of the
|
0006| waters described in Chapter 72, Article 12 NMSA 1978 shall
|
0007| apply to the state engineer in a form prescribed by him. In
|
0008| the application, the applicant shall designate:
|
0009| (1) the particular underground stream,
|
0010| channel, artesian basin, reservoir or lake from which water
|
0011| will be appropriated;
|
0012| (2) the beneficial use to which the water
|
0013| will be applied;
|
0014| (3) the location of the proposed well;
|
0015| (4) the name of the owner of the land on
|
0016| which the well will be located;
|
0017| (5) the amount of water applied for;
|
0018| (6) the place of the use for which the water
|
0019| is desired; and
|
0020| (7) if the use is for irrigation, the
|
0021| description of the land to be irrigated and the name of the
|
0022| owner of the land.
|
0023| B. If the well will be located on privately owned
|
0024| land and the applicant is not the owner of the land or the
|
0025| owner or the lessee of the mineral or oil and gas rights under
|
- 6 -
0001| the land, the application shall be accompanied by an
|
0002| acknowledged statement executed by the owner of the land that
|
0003| the applicant is granted access across the owner's land to the
|
0004| drilling site and has permission to occupy such portion of the
|
0005| owner's land as is necessary to drill and operate the well.
|
0006| This subsection does not apply to the state or any of its
|
0007| political subdivisions. If the application is approved, the
|
0008| applicant shall have the permit and statement, executed by the
|
0009| owner of the land, recorded in the office of the county clerk
|
0010| of the county in which the land is located.
|
0011| C. No application shall be accepted by the state
|
0012| engineer unless it is accompanied by all the information
|
0013| required by Subsections A and B of this section.
|
0014| D. Upon the filing of an application, the state
|
0015| engineer shall ~[cause to be published in a newspaper]~
|
0016| |instruct the applicant to:|
|
0017| (1) publish notice of the application in two
|
0018| newspapers of general circulation in the county in which the
|
0019| well will be located, at least once a week for three
|
0020| consecutive weeks ~[a notice that the application has been
|
0021| filed and that objections to the granting of the application
|
0022| may be filed within ten days after the last publication of the
|
0023| notice]~; ||
|
0024| |(2) provide written notice of the
|
0025| application to each municipality and county having
|
- 7 -
0001| jurisdiction in the county where the requested appropriation
|
0002| is to be located, by certified, return receipt requested mail,
|
0003| addressed to the clerk of each municipality or county provided
|
0004| notice; and
|
0005| (3) provide written notice of the application
|
0006| to a political subdivision of the state within the county
|
0007| where the requested appropriation is to be located that has
|
0008| registered with the state engineer to receive notice by
|
0009| certified, return receipt requested mail.|
|
0010| E. The notice of the application shall state the
|
0011| facts of the proposed application, including the diversion
|
0012| locations of the appropriation, the use of the appropriation
|
0013| proposed, the amount of water proposed to be appropriated and
|
0014| the name and address of the applicant. The notice shall state
|
0015| that objections or protests to the granting of the application
|
0016| may be filed within ten days after the date of the last
|
0017| publication of the notice or after the date of the written
|
0018| notice provided, whichever is later. |
|
0019| F. The state engineer may post notice of the
|
0020| application on the internet.
|
0021| G. The state engineer shall promulgate rules to
|
0022| implement the provisions of this section providing for
|
0023| publication and written mailed notice.|
|
0024| |H.| Any person, firm or corporation or other
|
0025| entity objecting that the granting of the application will
|
- 8 -
0001| impair the objector's water right shall have standing to file
|
0002| objections or protests. Any person, firm or corporation or
|
0003| other entity objecting that the granting of the application
|
0004| will be contrary to the conservation of water within the state
|
0005| or detrimental to the public welfare of the state and showing
|
0006| that the objector will be substantially and specifically
|
0007| affected by the granting of the application shall have
|
0008| standing to file objections or protests. Provided, however,
|
0009| that the state of New Mexico or any of its branches, agencies,
|
0010| departments, boards, instrumentalities or institutions, and
|
0011| all political subdivisions of the state and their agencies,
|
0012| instrumentalities and institutions shall have standing to file
|
0013| objections or protests.
|
0014| ~[E.]~ |I.| After the expiration of the time for
|
0015| filing objections, if no objections have been filed, the state
|
0016| engineer shall, if he finds that there are in the underground
|
0017| stream, channel, artesian basin, reservoir or lake
|
0018| unappropriated waters or that the proposed appropriation would
|
0019| not impair existing water rights from the source, is not
|
0020| contrary to conservation of water within the state and is not
|
0021| detrimental to the public welfare of the state, grant the
|
0022| application and issue a permit to the applicant to appropriate
|
0023| all or a part of the waters applied for, subject to the rights
|
0024| of all prior appropriators from the source.
|
0025| ~[F.]~ |J.| If objections or protests have been
|
- 9 -
0001| filed within the time prescribed in the notice or if the state
|
0002| engineer is of the opinion that the permit should not be
|
0003| issued, the state engineer may deny the application without a
|
0004| hearing or, before he acts on the application, may order that
|
0005| a hearing be held. He shall notify the applicant of his
|
0006| action by certified mail sent to the address shown in the
|
0007| application."
|
0008| Section 5. 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
|
0013| location of his well or change the use of the water, but only
|
0014| upon application to the state engineer and upon showing that
|
0015| the change will not impair existing rights and will not be
|
0016| contrary to the conservation of water within the state and
|
0017| will not be detrimental to the public welfare of the state.
|
0018| The application may be granted only after such
|
0019| ~[advertisement]~ |notices for both the move-from location and
|
0020| the move-to location of the transfer, if those locations are
|
0021| in different counties|, and hearing as are prescribed in the
|
0022| case of original applications.
|
0023| B. When the owner of a water right applies for a
|
0024| temporary change of not to exceed one year for not more than
|
0025| three acre-feet of water to a different location or to a
|
- 10 -
0001| different use, or both, the state engineer shall make an
|
0002| investigation and, if the change does not permanently impair
|
0003| any vested rights of others, he shall enter an order
|
0004| authorizing the change. If he finds that the change sought
|
0005| might impair vested rights, he shall order ~[advertisement]~
|
0006| |notices for both the move-from location and the move-to
|
0007| location of the transfer, if those locations are in different
|
0008| counties|, and hearing as in other cases.
|
0009| C. If objections or protests have been filed
|
0010| within the time prescribed in the ~[notice]~ |notices| or if
|
0011| the state engineer is of the opinion that the permit should
|
0012| not be issued, the state engineer may deny the application or,
|
0013| before he acts on the application, may order that a hearing be
|
0014| held. He shall notify the applicant of his action by
|
0015| certified mail sent to the address shown in the application."
|
0016| Section 6. Section 72-12B-1 NMSA 1978 (being Laws 1983,
|
0017| Chapter 2, Section 1, as amended) is amended to read:
|
0018| "72-12B-1. APPLICATIONS FOR THE TRANSPORTATION AND USE
|
0019| OF PUBLIC WATERS OUTSIDE THE STATE.--
|
0020| A. The state of New Mexico has long recognized the
|
0021| importance of the conservation of its public waters and the
|
0022| necessity to maintain adequate water supplies for the state's
|
0023| water requirements. The state of New Mexico also recognizes
|
0024| that under appropriate conditions the out-of-state
|
0025| transportation and use of its public waters is not in conflict
|
- 11 -
0001| with the public welfare of its citizens or the conservation of
|
0002| its waters.
|
0003| B. Any person, firm or corporation or any other
|
0004| entity intending to withdraw water from any surface or
|
0005| underground water source in the state of New Mexico and
|
0006| transport it for use outside the state or to change the place
|
0007| or purpose of use of a water right from a place in New Mexico
|
0008| to a place out of that state shall apply to the state engineer
|
0009| for a permit to do so. Upon the filing of an application, the
|
0010| state engineer shall cause to be published in ~[a newspaper]~
|
0011| |two newspapers| of general circulation in the county in which
|
0012| the well will be located or ~[the stream system]~ from
|
0013| ~[which]~ |where| surface water will be taken, at least once a
|
0014| week for three consecutive weeks, a notice that the
|
0015| application has been filed and that objections to the granting
|
0016| of the application may be filed within ten days after the last
|
0017| publication of the notice. |The state engineer shall require
|
0018| the applicant to provide written notice of the application to
|
0019| a political subdivision of the state within the county where
|
0020| the requested appropriation is to be located that has
|
0021| registered with the state engineer to receive notice, by
|
0022| certified, return receipt requested mail; and to each
|
0023| municipality and county having jurisdiction in the county
|
0024| where the requested appropriation is to be located, by
|
0025| certified, return receipt requested mail, addressed to the
|
- 12 -
0001| clerk of each municipality or county provided notice. The
|
0002| state engineer may post notice of the application on the
|
0003| internet.| Any person, firm or corporation or other entity
|
0004| objecting that the granting of the application would impair or
|
0005| be detrimental to the objector's water right shall have
|
0006| standing to file objections or protests. Any person, firm or
|
0007| corporation or other entity objecting that the granting of the
|
0008| application will be contrary to the conservation of water
|
0009| within the state or detrimental to the public welfare of the
|
0010| state and showing that the objector will be substantially and
|
0011| specifically affected by the granting of the application shall
|
0012| have standing to file objections or protests. Provided,
|
0013| however, that the state of New Mexico or any of its branches,
|
0014| agencies, departments, boards, instrumentalities or
|
0015| institutions, and all political subdivisions of the state and
|
0016| their agencies, instrumentalities and institutions shall have
|
0017| standing to file objections or protests. The state engineer
|
0018| shall accept for filing and act upon all applications filed
|
0019| under this section in accordance with the provisions of this
|
0020| section. The state engineer shall require notice of the
|
0021| application and shall thereafter proceed to consider the
|
0022| application in accordance with existing administrative law and
|
0023| procedure governing the appropriation of surface or ground
|
0024| water.
|
0025| C. In order to approve an application under this
|
- 13 -
0001| act, the state engineer must find that the applicant's
|
0002| withdrawal and transportation of water for use outside the
|
0003| state would not impair existing water rights, is not contrary
|
0004| to the conservation of water within the state and is not
|
0005| otherwise detrimental to the public welfare of the citizens of
|
0006| New Mexico.
|
0007| D. In acting upon an application under this act,
|
0008| the state engineer shall consider, but not be limited to, the
|
0009| following factors:
|
0010| (1) the supply of water available to the
|
0011| state of New Mexico;
|
0012| (2) water demands of the state of New Mexico;
|
0013| (3) whether there are water shortages within
|
0014| the state of New Mexico;
|
0015| (4) whether the water that is the subject of
|
0016| the application could feasibly be transported to alleviate
|
0017| water shortages in the state of New Mexico;
|
0018| (5) the supply and sources of water available
|
0019| to the applicant in the state where the applicant intends to
|
0020| use the water; and
|
0021| (6) the demands placed on the applicant's
|
0022| supply in the state where the applicant intends to use the
|
0023| water.
|
0024| E. By filing an application to withdraw and
|
0025| transport waters for use outside the state, the applicant
|
- 14 -
0001| shall submit to and comply with the laws of the state of New
|
0002| Mexico governing the appropriation and use of water.
|
0003| F. The state engineer is empowered to condition
|
0004| the permit to ~[insure]~ |ensure| that the use of water in
|
0005| another state is subject to the same regulations and
|
0006| restrictions that may be imposed upon water use in the state
|
0007| of New Mexico.
|
0008| G. Upon approval of the application, the applicant
|
0009| shall designate an agent in New Mexico for reception of
|
0010| service of process and other legal notices."
|
0011|
|