TITLE
19 NATURAL RESOURCES AND
WILDLIFE
CHAPTER
25 ADMINISTRATION AND USE OF WATER -
GENERAL PROVISIONS
PART
13 ACTIVE WATER RESOURCE
MANAGEMENT
19.25.13.1 ISSUING AGENCY: Office of the State Engineer.
[19.25.13.1 NMAC
- N, 12/30/2004]
19.25.13.2 SCOPE: The state engineer adopts these rules and regulations to
undertake the supervision of the physical distribution of water, to prevent
waste, and to administer the available supply of water by priority date or by
alternative administration, as appropriate.
These rules apply to all water rights within the state from all sources
of water, surface water and hydrologically connected groundwater.
[19.25.13.2 NMAC
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19.25.13.3 STATUTORY AUTHORITY: These rules and regulations are established pursuant to
constitutional authority set forth in Article XVI of the New Mexico
Constitution, and statutory authority enumerated in Sections 72-1-2; 72-2-8;
72-2-9; 72-2-9.1; 72-3-1-5; 72-4-20; 72-5-3 through 5; 72-5-18; 72-5-23;
72-5-24; 72-6-1 through 7; 72-8-1; 72-9-2; 72-12-1; 72-12-2; 72-12-8(D);
72-12-24; 72-13-2; 72-13-4 NMSA.
[19.25.13.3 NMAC
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19.25.13.4 DURATION: Permanent.
[19.25.13.4 NMAC
- N, 12/30/2004]
19.25.13.5 EFFECTIVE DATE: December 30, 2004, unless a later date is cited at the end of a
section.
[19.25.13.5 NMAC
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19.25.13.6 OBJECTIVE: The objective of these rules is to establish the framework for
the state engineer to carry out his responsibility to supervise the physical
distribution of water to protect senior water right owners, to assure
compliance with interstate stream compacts and to prevent waste by
administration of water rights. These
framework rules employ long-standing statutory mechanisms specified at Section
72-3-1 through Section 72-3-5 NMSA, which describe procedures for the creation
of water master districts and the appointment of water masters with certain
defined duties and authorities. In
addition, these rules fulfill the mandates of Section 72-2-9.1 NMSA, requiring
the state engineer to adopt rules for priority administration based on
appropriate hydrologic models and expedited marketing and leasing within water
master districts subject to priority administration.
[19.25.13.6 NMAC
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19.25.13.7 DEFINITIONS: Unless defined below in a specific section of these rules, all
words used herein shall be given their customary and accepted meanings. All uses of masculine pronouns or
possessives shall be held to include the feminine.
A. Adjudication: A
comprehensive court proceeding to establish the elements of each water right
for all water right owners on a stream system with respect to the state of New
Mexico and as among each other, including the priority, amount, purpose,
periods and place of use and the specific tracts of land to which the water
right is appurtenant, as provided by Section 72-4-19 NMSA.
B. Administrable water right: A water right or right to impound, store or release water, the
elements of which have been determined by a court of competent jurisdiction or
determined on an interim basis by the state engineer under these rules and
regulations. The state engineer may
make determinations of the elements of a water right for purposes of
administration prior to the commencement or completion of, and during the pendency
of, a water rights adjudication. State
engineer determinations made for purposes of administration are subject to
review by any court of competent jurisdiction and are not binding on that
court. Such determinations are subject
to the decrees of an adjudication court of competent jurisdiction, and are not
binding on such an adjudication court.
C. Administration:
Distribution by a water master of available water supplies within a
water master district or sub-district, subject to any legal constraints
identified by or imposed on the state engineer, for specific beneficial uses by
the owners of administrable water rights that are in-priority. There are four forms of administration
available to achieve different objectives.
These forms are defined below together with subsidiary definitions. A water master may, based on the applicable
district-specific regulations, use any of these forms of administration,
depending on the specific legal and physical aspects of the water supplies that
are subject to administration and the existence or absence of agreements for
alternative administration.
Administration may also combine these forms within a water master
district, as the water master finds appropriate or necessary. The specific form of administration, or
combination of forms of administration, that will be utilized in each water
master district will be established through promulgation of district-specific
regulations. Notice of such
promulgation will be provided pursuant to Subsection D of 72-2-8 NMSA.
(1) Direct flow administration
(a) Direct flow water: All the flow of a stream, including storage
reservoir inflows that are legally bypassed through that reservoir, but
excluding sources of flow augmentation such as storage water releases or
imported water.
(b) Direct flow administration: Distribution of direct flow water by a water
master for diversion and beneficial use, or for diversion and storage in a
reservoir, in accordance with the affected administrable water rights. Direct flow administration consists of both
protection of available direct flow water for diversion and use by in-priority
administrable water rights, and protection of direct flow water from
out-of-priority diversion. Direct flow
administration may incorporate changes to the water master’s determination of
which water rights are in-priority and which are out-of-priority on a daily
basis, depending on the currently available direct flows.
(2)
Storage water administration
(a) Storage water: Water stored in a reservoir in-priority and
in accordance with the conditions of an administrable water right and
subsequently released from storage.
Storage water does not include direct flow water that is bypassed
through a reservoir.
(b) Storage water administration: Administration by a water master of the
release from reservoirs and subsequent downstream diversion of storage water in
accordance with the requirements of the applicable administrable water rights
for such release and diversion. Storage
water administration includes both the distribution of storage water released
for the benefit of those having rights to its use, and also the protection of
storage water releases from diversion by water right owners having only an
administrable water right to direct flow water. Conveyance losses that occur as a result of the delivery of
storage water shall be borne by the owner of the applicable administrable water
right, and storage water administration shall account for those conveyance
losses. For purposes of administration,
imported water shall be administered in the same manner as storage water;
however, imported water is subject to 100% depletion. The beneficial use of imported water is exclusive in the owner of
the right to its use and is not subject to priority call in the basin of use,
but its diversion from the basin of origin is subject to priority administration
in that basin.
(3) Depletion limit administration
(a)
Depletion limit: The amount
of surface water that is available for depletion by both surface water rights
and hydrologically connected groundwater rights within a water master district
or sub-district, taking into account interstate stream compact compliance
requirements. Taking into account the
conjunctive nature of surface and groundwater, the depletion limit may be
greater than, or less than, the physically available surface water supply.
(b) Administration date[s]: A date, or dates, to be determined by the
state engineer, where administration within a specific water master district is
to be in effect for a period of time to be determined by the state engineer for
interstate stream compact compliance purposes, or to address substantial
long-term groundwater effects on surface supply, as expressed in a depletion
limit. If an administration date is
determined and published for a district, no water rights with priority dates
later than the administration date shall be exercised in the absence of a
replacement plan approved by the state engineer.
(c) Depletion limit administration: Administration by a water master to curtail
water rights with priority dates junior to an administration date. Such out-of-priority rights shall not use
water in the absence of a replacement plan approved by the state engineer.
(d)
Replacement water: Water
acquired temporarily by an out-of-priority administrable water right from an
in-priority administrable water right pursuant to a replacement plan for the
purpose of offsetting surface water depletions attributable to an
out-of-priority administrable water right and preventing impairment of
in-priority administrable water rights.
(e) Replacement plan: A plan submitted by the owner(s) of
administrable water rights, and approved by the state engineer for no more than
two consecutive years, subject to renewal, for the purpose of offsetting
depletions attributable to out-of-priority administrable water rights.
(4) Alternative administration: Administration that is based on water sharing
agreement among affected water right owners, and that is acceptable to the
state engineer. Such administration may
include voluntary shortage sharing such as, but not limited to, percentage
division or pro rata allocation, rotation of water use, and reduced
diversions. Where there is an existing
shortage sharing agreement between acequias or community ditches confirmed on
the first Monday of April of each year in accordance with Section 73-2-47 NMSA
or thereafter as necessary, it shall be recognized in the district-specific
regulations, but nothing in this section shall be taken to impair the authority
of the state engineer and water master to regulate the distribution of water
from the various stream systems of the state to the ditches and irrigation
systems entitled to water therefrom under the provisions of this article. Alternative administration may be
substituted for any of the forms of administration above described.
D. Administration date[s]: See definition under Subsection C of 19.25.13.7 NMAC.
E. Consumptive irrigation requirement: See definition under Subsection S of 19.25.13.7 NMAC.
F. Consumptive use: The
quantity of water beneficially consumed during the application of water to
beneficial use.
G. Conveyance loss: The
quantity of water that is effectively removed from a stream system due to
seepage or evapotranspiration as calculated between a measurement device used
to measure the available water supply and a downstream point of diversion for
an administrable water right or a downstream point of delivery.
H. Depletion: That
consumptively used portion of a diversion that has been evaporated, transpired,
incorporated into crops or products or used by livestock, or man-made
consumptive uses such as, but not limited to, municipal, industrial and
domestic uses, or otherwise removed from, and not returned to, the available
water supply, including all incidental depletions associated with the
beneficial use. Depletions shall
include, but not be limited to:
(1) any
increase in depletions resulting from construction projects for the restoration
and maintenance of fish and wildlife habitat that result in increased depletion
of water over that amount that would have been depleted had there been no
restoration; such projects are subject to the permitting authority of the state
engineer;
(2) any increase in depletions resulting
from changes in reservoir operations that increase the amount of water depleted
over that amount which would have been depleted had there been no change in the
reservoir’s operations; such as, but not limited to, changes in historic
release patterns; such changes are subject to the permitting authority of the
state engineer.
I. Depletion limit: See definition
under Subsection C of 19.25.13.7 NMAC.
J. Depletion limit administration: See definition under Subsection C of 19.25.13.7 NMAC.
K. Direct flow administration: See definition under Subsection C of 19.25.13.7 NMAC.
L. Direct flow water: See definition
under Subsection C of 19.25.13.7 NMAC.
M. District: When used
in these regulations, means water master district.
N. Diversion: The
quantity of water taken from a ground or surface water source by a constructed
structure or project to supply a beneficial use.
O. Expedited marketing and leasing: Any process within a district in which water rights are subject
to priority administration whereby changes in use or place of use of water may
be effected so as to minimize costly and time-consuming administrative
procedures. Expedited marketing and
leasing processes may include, but are not limited to, expedited permit
proceedings before the state engineer through the use of the appropriate
hydrologic models adopted by the state engineer for the district. Subsection C of 72-2-9.1 NMSA expressly provides that rules and regulations
concerning expedited marketing and leasing “shall not apply to acequias or
community ditches or to water rights served by an acequia or community ditch.”
P. Farm delivery requirement: See definition under Subsection S of 19.25.13.7 NMAC.
Q. Imported water: Water
removed from, and not returned to, its hydrologic basin of origin delivered for
use in a different basin or drainage.
R. In-priority: If the
currently available direct flow water is sufficient for distribution to a
specific use administrable water right,
then that right is in-priority. If a
water right has a priority date that is senior to the applicable administration
date, that water right is in-priority.
In the case of storage water, that amount of the total inflow to a
reservoir that exceeds the volume of water that must flow through the dam to
serve senior administrable water rights to direct flow water is in-priority for
storage.
S. Irrigation water requirements: Irrigation water requirements can be expressed in several ways,
depending on circumstances:
(1) Consumptive irrigation requirement (CIR):
The quantity of irrigation water, expressed as a depth or volume, exclusive of
effective rainfall, that is consumptively used by plants or is evaporated from
the soil surface during one calendar year.
The CIR may be numerically determined by subtracting effective rainfall
from the consumptive use.
(2) Farm delivery requirement: The quantity of water, exclusive of
effective rainfall, that is delivered to the farm head gate or is diverted from
a source of water that originates on the farm itself, such as a well or spring,
to satisfy the consumptive irrigation requirement of crops grown on a farm
during the irrigation accounting year, or as otherwise provided by permit.
(3) Project diversion requirement: The annual quantity of water necessary to be
diverted from a source of water to satisfy the farm delivery requirement and to
account for off-farm ditch conveyance delivery losses during the irrigation
accounting year.
T. Measuring devices: Gauging or
metering devices, installed and operated as required by the state engineer.
U. Out-of-priority: If the
currently available direct flow water is insufficient to serve all
administrable water rights, and therefore an administration date is adopted or
a priority call placed, then those administrable water rights are
out-of-priority that have a priority date junior to the applicable
administration date or are junior to the priority of the water right placing
the priority call. In the case of storage water, if the inflow to a reservoir
is equal to, or less than, the quantity of water necessary to serve downstream
senior Administrable water rights from the direct flow, then such direct flow
must be bypassed and the right to impound and store water in that reservoir is
out-of-priority. Water that was stored
in-priority is not available for use except by those with administrable water
rights to the use of the storage water.
V. Priority administration: All the forms of
administration defined under administration are methods of priority
administration. Priority administration
involves any administrative scheme implemented by a water master in accordance
with the priority dates of administrable water rights, including direct flow,
storage water and depletion limit administration. See, generally, administration.
W. Project: Any
man-made works intended physically to control or to use water for a beneficial
purpose of use.
X. Replacement water: See
definition under Subsection C of 19.25.13.7 NMAC.
Y. Replacement plan: See
definition under Subsection C of 19.25.13.7 NMAC.
Z. Return flow: That amount
of diverted water returned to the available water supply.
AA. State engineer: The New
Mexico state engineer, or his designated appointee.
BB. Storage water: See
definition under Subsection C of 19.25.13.7 NMAC.
CC. Storage water administration: See definition under Subsection C of 19.25.13.7 NMAC.
DD. Waste: Diversion of water in excess
of that amount reasonably necessary to supply a beneficial use in accordance
with accepted water use practices that are consistent with considerations of
water conservation.
EE. Water master: An official
duly appointed by, and under the general supervision of, the state engineer,
pursuant to Section 72-3-2 NMSA, who shall have immediate charge of the
diversions and distribution of waters in the water master district.
FF. Water master district: An
area designated as a water district or sub-district by the state engineer for
purposes of administration, as provided in Section 72-3-1 NMSA.
GG. Water master district manager: The state engineer district supervisor is the manager of any
water master district within his particular state engineer district and the
direct supervisor of the water master.
[19.25.13.7 NMAC
- N, 12/30/2004]
19.25.13.8 CONSTRUCTION: These rules and regulations shall be construed as consistent with,
and subject to, the authorities of the state engineer for the administration of
water in the state of New Mexico. These
rules and regulations shall not be construed as imposing any limitation on the
authority of the state engineer to administer water rights, act on water rights
applications, permit water rights, or order the curtailment, in whole or in
part, of the use of water under any water right. Subsection H of 72-2-8 NMSA provides that these rules and regulations
are presumed to be the correct implementation of the law.
[19.25.13.8 NMAC
- N, 12/30/2004]
19.25.13.9 USE OF THESE RULES AND REGULATIONS: These rules and regulations provide the framework for the
promulgation of specific water master district rules and regulations.
[19.25.13.9 NMAC
- N, 12/30/2004]
19.25.13.10 STATE ENGINEER ADOPTION OF
DISTRICT-SPECIFIC RULES AND REGULATIONS: For every
district in which water rights administration is requested, or the state
engineer determines in the performance of his duties under Section 72-2-1 NMSA
that water rights administration is required for the economical and
satisfactory apportionment of water, the state engineer shall adopt rules and
regulations, pursuant to Subsection D of 72-2-8 NMSA, specific to the water
master district, which incorporate and adapt the provisions of these rules and
regulations to the needs of the specific district.
[19.25.13.10 NMAC
- N, 12/30/2004]
19.25.13.11 STATE ENGINEER AUTHORITY TO CREATE
WATER MASTER DISTRICTS AND APPOINT WATER MASTERS: The state engineer may create water master districts and appoint
water masters in any drainage areas of the state pursuant to Section 72-3-1
through Section 72-3-5 NMSA and these regulations. The water master district manager shall provide the water master
with guidelines for administration, including his determination, for purposes
of administration, of all administrable water rights within the water master
district. Water master guidelines shall
be in the form of a water master manual applicable to each water master
district or sub-district. Comments from
the public shall be taken and considered prior to finalizing the water master
manuals. Notice shall be provided in
accordance with Subsection D of 72-2-8 NMSA.
The state engineer may administer water rights pursuant to a draft water
master manual for a specific period of time, which will be determined in the
district-specific regulations, prior to finalizing a manual so that the adopted
manual will be based upon actual experience and the collective comments of the
water right owners in the district.
[19.25.13.11 NMAC
- N, 12/30/2004]
19.25.13.12 CREATION OF A WATER MASTER DISTRICT: The state engineer may create water master districts within the
state, provided that:
A. the state
engineer finds that the creation of such a water master district is necessary
for the economical and satisfactory administration of water;
B. the boundaries
of the water master districts are in conformity with drainage areas as defined
by the state engineer;
C. the water master
districts are designated by names; and
D. as far as
possible, the water master districts comprise one or more stream systems or
stream reaches, including hydrologically connected groundwater, as defined by
the state engineer.
[19.25.13.12 NMAC
- N, 12/30/2004]
19.25.13.13 CHANGING A WATER MASTER DISTRICT: Water master districts may be changed from time to time, as may
be necessary in the opinion of the state engineer, for the economical and
satisfactory apportionment of water.
[19.25.13.13 NMAC
- N, 12/30/2004]
19.25.13.14 CREATION OF WATER MASTER SUBDISTRICTS: When, in his opinion, it shall be in the best interests of the
state and the owners of water rights within any stream system within the state,
the state engineer may divide water master districts further into sub-districts,
each of which shall be designated by a distinct name.
[19.25.13.14 NMAC
- N, 12/30/2004]
19.25.13.15 APPOINTMENT OF A WATER MASTER: Where the state engineer has created a water master district, the
state engineer shall:
A. appoint a water
master for such district upon the written application of a majority of the
water right owners of any water master district; or
B. appoint a water
master to administer the water master district and sub-districts where the
state engineer finds that the public safety or interests of the state or water
right owners in any water master district in the state require the appointment
of a water master; where a water master has been appointed pursuant to such a
finding, he may be appointed on either a temporary or a permanent basis.
[19.25.13.15 NMAC
- N, 12/30/2004]
19.25.13.16 GENERAL AUTHORITY OF A WATER MASTER: The water master shall have immediate charge of the
administration of waters within a water master district as necessary to protect
the public safety and the interests of water right owners in a district or for
the economic and satisfactory apportionment of water to all administrable water
rights from the available water supply, and shall so regulate and control the
waters of the district as to prevent waste.
Administration implemented by the water master may be direct flow
administration, storage water administration, depletion limit administration,
alternative administration, or any combination thereof, as defined by
district-specific regulations, depending on the physical and legal
circumstances affecting the water resources and administrable water rights of
the water master district. The water
master may, as necessary, to effect administration:
A. determine the
available supply of water from time to time, considering conveyance losses, as
appropriate and necessary for effective administration;
B. implement
administration of the storage, diversion, and use of the waters of the water
master district in accordance with the administrable water rights;
C. administer the
diversion of the waters of the water master district in priority or under an
alternative administration;
D. administer
diversions of the waters of the water master district in accordance with any
administration date declared by the state engineer;
E. facilitate the
formation and operation of water right owner groups to, among other things,
improve the management of water supplies, water conservation, cooperation among
water right owners and administration;
F. facilitate the
negotiation and implementation of alternative administration agreements,
including cooperative agreements, for sharing available water supplies;
G. adjust headgates
and restrict diversions or pumping as required to administer water in
accordance with principles of prior
appropriation and beneficial use, to prevent the illegal use of water,
and to prevent waste; and
H. exercise all
such authority as is required to accomplish effective water rights
administration.
[19.25.13.16 NMAC
- N, 12/30/2004]
19.25.13.17 SPECIFIC DUTIES OF A WATER MASTER: Taking into account the available water supply in general and
considering conveyance losses, the water master shall implement administration
in the district. The water master is
authorized to do the following, as may be provided by district-specific rules
and regulations and as necessary to effect administration:
A. determine the
physical capacity of diversion and delivery structures for each point of
diversion expressed as a maximum rate of flow in cubic feet per second (cfs);
B. determine the
maximum rate of flow, expressed in cfs, required to meet the total demand for administrable water rights served by
that point of diversion;
C. take into
account water needed to provide for adequate hydraulic pressure to ensure
maximum irrigation efficiency and charge of the system;
D. take into
account water needed for additional uses such as, but not limited to,
silt-flushing;
E. during times of
high stream flow, when there are no legal constraints imposed upon the physical
administration of the available water supply, relax limits on the amount of
water that may be diverted in order that the delivery system might operate more
efficiently, except that under no circumstances may the total CIR of water
rights served from the project increase;
F. with respect to
all agricultural uses, require the designation by the water right owner of land
to be irrigated in a particular season and verify the irrigability of that
land;
G. ensure that
water diversions do not exceed the amount needed to serve administrable water
rights, except as provided in Subsections C through E, above;
H. administer
direct flow water for delivery to in-priority administrable water rights,
curtail diversions by out-of-priority administrable water rights, ensure the delivery
of storage water to those having rights
to its use, and protect storage water releases
from diversion by those without rights to its use;
I. establish
protocols for communication and exchange of information with water right owners
as required for administration;
J. maintain
accurate records of all administration activities, including meter readings,
and establish a protocol for the inspection and copying of such records, at the
requestor’s expense;
K. identify waste
and illegal use of water, including re-diversion and reuse of return flows
other than as specifically provided for in an administrable water right;
L. upon a
determination that a use is illegal or constitutes waste, cap, lock or
otherwise temporarily disable any mechanism for illegal diversion; no permanent
disablement may occur without hearing before the state engineer;
M. where he has
determined that a facility must be permanently disabled, issue an order
directing that the diversion be permanently disabled, which order shall be heard
by the state engineer as provided below; pending review of the water master’s
order, the temporary disablement of the disputed diversion shall remain in
place;
N. perform all such
duties as are required to accomplish administration.
[19.25.13.17 NMAC
- N, 12/30/2004]
19.25.13.18 NO CHANGE IN DITCH SYSTEM MANAGEMENT: Except as required in the performance of the water master’s
duties to regulate the distribution of water from the various stream systems of
the state to the points of diversion of ditches and irrigation systems entitled
to water therefrom, these rules and regulations shall not be construed to
affect the internal management of projects, including acequias or community
ditches and other water delivery systems, in accordance with Section 72-9-2
NMSA, which provides for the distribution of water from the ditches and
acequias according to local or community customs, rules and regulations that
have been properly adopted. The state
engineer’s authority, and that of his water master, to regulate the diversion
of water from the source to a ditch or acequia is unaffected by either Section
72-9-2 NMSA or this provision.
[19.25.13.18 NMAC
- N, 12/30/2004]
19.25.13.19 WATER MASTER SUPERVISION OF
MEASUREMENT: In all districts in which water masters are
appointed, water masters shall have the authority to supervise the measurement
of water in order to conduct administration.
[19.25.13.19 NMAC
- N, 12/30/2004]
19.25.13.20 HEADGATES AND MEASURING DEVICES
REQUIRED: The state engineer shall determine those
points of diversion from, and return flow discharge to, the stream system where
measuring devices are necessary for the efficient administration of water
within the water master district. The
owners of private ditches, the commissioners of acequias or community ditches,
the boards of irrigation and conservancy districts, and all other owners of
administrable water rights and operators of projects that are notified by the
water master of the need to comply with this rule shall cause to be installed
and maintained headgates and measuring devices of types and at locations
acceptable to the water master, as may be provided by district-specific rules
and regulations, once promulgated and adopted by the state engineer and ordered
by the state engineer, or as otherwise ordered pursuant to Paragraph 3 of
Subsection B of Section 72-2-8 NMSA.
[19.25.13.20 NMAC
- N, 12/30/2004]
19.25.13.21 WATER TO BE DIVERTED OR DELIVERED THAT
WILL BE PLACED TO ACTUAL BENEFICIAL USE; ESTABLISHING BENEFICIAL USE
REQUIREMENTS: If a particular water right is in-priority,
the water master shall allow the diversion or delivery of water that will be
put to actual beneficial use without waste.
The water master shall make such investigations, including inspections
of lands, well records, diversion records and municipal records, as are
necessary to determine, for purposes of administration, the current beneficial
use needs for all types of water uses under administrable water rights during
periods of priority administration.
Water deliveries for irrigation uses shall not be made unless the land
on which water will be used has an administrable water right as determined by
the state engineer. Nothing in this
provision shall be construed to allow the water master to prefer some
beneficial uses to other beneficial uses on any grounds other than priority,
unless he is doing so pursuant to local agreements through alternative
administration. Such determination
shall not affect the maximum legal entitlement to water.
[19.25.13.21 NMAC
- N, 12/30/2004]
19.25.13.22 FARM DELIVERY AND PROJECT DIVERSION
REQUIREMENT DETERMINATIONS: In the absence of applicable
court orders or adjudication decrees, the state engineer shall, prior to
administration, make a determination of farm delivery and project diversion
requirements in water master districts that are subject to administration. The project diversion requirement may be
expressed as a maximum rate of diversion, an annual maximum diverted volume of
water for a specified use, or both. The
state engineer may modify these determinations based on new information,
including field experience of the water master. None of the requirements of this provision shall apply if a
determination adequate for effective water administration has been made by a
court of competent jurisdiction.
[19.25.13.22 NMAC
- N, 12/30/2004]
19.25.13.23 OBJECTIONS TO, AND STATE ENGINEER
REVIEW OF, WATER MASTER DECISIONS: Objections
to any act or failure to act of a water master shall be made in the first
instance informally, or in writing, to the water master who shall take prompt
action on the objection if he determines that any action is warranted. If the water master fails to resolve the
objection, further objections shall be made to the state engineer, who shall
hear the matter in accordance with Section 72-3-3 NMSA. Streamlined processes for the prompt hearing
of appeals from water master decisions shall be set up for each water master
district. Filing of an objection to an
act or failure to act by the water master will not stay the water master’s
action or failure to act, or his authority to administer the water right,
pending resolution of the objection.
[19.25.13.23 NMAC
- N, 12/30/2004]
19.25.13.24 WATER MASTER ADMINISTRATION OF AN
ADMINISTRATION DATE: In the event that the state
engineer determines an administration date for a water master district, the
water master shall oversee the curtailment of all administrable water rights
junior to the administration date. The
water master shall not allow out-of-priority use in the absence of a
replacement plan approved by the state engineer.
[19.25.13.24 NMAC
- N, 12/30/2004]
19.25.13.25 WATER MASTER ENTRY ON PRIVATE OR
PUBLIC LAND: Pursuant to Section 72-8-1 NMSA, the water
master shall have the right to enter private or public lands in order to:
A. install,
inspect, read, and adjust measuring devices and require the replacement or
repair of such measuring devices;
B. inspect and
adjust headgates or require the repair of such headgates;
C. make seepage
evaluations;
D. conduct inspections
of canals, wells, wasteways or sluiceways;
E. prevent waste
and prevent illegal water use;
F. cap, lock or
otherwise temporarily disable any mechanism for illegal diversion; and
G. perform such
other duties as are required to accomplish administration.
[19.25.13.25 NMAC
- N, 12/30/2004]
19.25.13.26 WATER MASTER REPORTS: Annually, the water master shall submit a report including a
record of total diversions and deliveries of direct flow water and storage
water, as applicable, a statement of expenditures, a list of infrastructure and
metering improvements needed or performed, problems encountered, and any other
pertinent issues or aspects of administration.
The report shall also address the amount of water needed to supply the
requirements of the water master district, the amount available, the works
which are without their proper supply, the supply required during the period
preceding the water master’s next regular report and such other information as
the state engineer may require. The
report shall be submitted to the state engineer and be publicly available for
inspection and copying, at the requestor’s expense.
[19.25.13.26 NMAC
- N, 12/30/2004]
19.25.13.27 ADMINISTRABLE WATER RIGHTS: The water master district manager for each water master district
will define each administrable water right by its elements as set forth in
Subsections A through G below. In all
instances where the state engineer makes determinations of priority based on
best available evidence as set forth in Subsections A through G below, he shall
publish a list of his determination of the water rights in the water master
district for review and provide opportunity to affected water right owners to
informally present evidence. The state
engineer shall hear objections to the water master district manager’s
determination of an administrable water right in accordance with Section
72-2-16 NMSA. Filing of an objection to
the water master district manager’s determination of an administrable water
right will not stay the state engineer’s administration based upon that
determination, pending resolution of the objection. Appeals from decisions of the state engineer shall be in
accordance with Section 72-7-1 NMSA.
The water master district manager for each water master district will
define each administrable water right by its elements as set forth in:
A. a partial final
decree or a final decree entered by an adjudication court of competent
jurisdiction, subject to any state engineer permit issued subsequent to entry
of said adjudication decree; or, if no decree has been entered, then;
B. a subfile order
entered by an adjudication court of competent jurisdiction; or, if no subfile
order has been entered, then;
C. an offer of
judgment signed by the defendant in a water rights adjudication; or, if no
offer of judgment has been signed, then;
D. a hydrographic
survey conducted and filed in accordance with Section 72-4-17 NMSA or Section
72-4-16 NMSA; or, if no hydrographic survey has been filed, then;
E. a license
issued by the state engineer; or, if no license has been issued, then:
F. a permit issued
by the state engineer, accompanied by proof of actual beneficial use; and
G. a determination
made by the state engineer based on the best available evidence, consisting of,
where available, any filings with the office of the state engineer, field or
documentary evidence of beneficial use associated with the right including
historical aerial photography, diversions records of historical diversions,
historical studies containing evidence regarding water use, and data regarding
irrigation and water delivery system requirements.
[19.25.13.27 NMAC
- N, 12/30/2004]
19.25.13.28 SUPERSESSION BY A COURT: Any determinations made by the state engineer for administration
purposes within any district subject to administration in the absence of a
completed adjudication shall be subject to any decrees issued by an
adjudication court of competent jurisdiction or any court of competent
jurisdiction.
[19.25.13.28 NMAC
- N, 12/30/2004]
19.25.13.29 ADMINISTRATION BY ADMINISTRATION DATE: The state engineer may adopt an administration date, based on his
best professional judgment of the water supply available for consumptive use by
water right owners in the water master district or for depletion within the
state of New Mexico as may be appropriate, and the date on which that
administration date will be effective, by order in accordance with Paragraph 3
of Subsection B of 72-2-8 NMSA, for any water master district. The state engineer may revise an administration
date as necessary to achieve the objectives of these rules and
regulations. The state engineer shall
publish the adoption or revision of an administration date once a week for two
consecutive weeks in two newspapers of general circulation within the water
master district affected by such adoption or revision. Upon the effective date of an administrative
date, all out-of-priority administrable water rights must cease diversion,
except as provided by an approved replacement plan. Determination of an administration date shall be ordered to
implement depletion limit administration and shall be specifically provided for
by the provisions of district-specific regulations to achieve compliance with
an interstate stream compact; or, in the state engineer’s performance of his
duties under Section 72-2-1 NMSA upon further formal state engineer action
pursuant to Section 72-2-8 NMSA for reasons of public safety or the interests
of the water right owners in the district.
[19.25.13.29 NMAC
- N, 12/30/2004]
19.25.13.30 OBJECTION TO, AND STATE ENGINEER
REVIEW OF, STATE ENGINEER DETERMINATION OF AN ADMINISTRATION DATE: Owners of administrable water rights are encouraged to resolve
objections to the state engineer’s determination of an administration date
informally with the state engineer’s district office. If such informal negotiations fail, the state engineer shall hear
objections to his determination of an administration date in accordance with
Section 72-2-16 NMSA. Filing of an
objection to an administration date will not stay the state engineer’s
administration by administration date, pending resolution of the
objection. Appeals from decisions of
the state engineer shall be in accordance with Section 72-7-1 NMSA.
[19.25.13.30 NMAC
- N, 12/30/2004]
19.25.13.31 APPLICATION FOR APPROVAL OF
REPLACEMENT PLANS: Replacement plans are
available only during state engineer priority administration of the available
water supply to prevent serious and imminent economic harm in response to, and
only until water rights are permanently transferred, if necessary. The state engineer may approve replacement
plans based on the adopted generalized hydrologic analysis that, in his
professional judgment, provide sufficient replacement water to fully offset
depletions to surface waters caused by out-of-priority diversions in order to
prevent impairment of senior water right owners by the junior water right owner
that would otherwise be out-of-priority.
Replacement plans may be approved temporarily until permanent transfer
of water is effected for water right owners who are likely to face permanent
curtailment, or for limited periods when a water right owner is not likely to
face permanent curtailment. The owner
of an out-of-priority administrable water right that is subject to administration
in a water district may submit to the state engineer an application for
approval of a replacement plan. The
application shall contain the following information:
A. the name and
address of the applicant;
B. the location,
amount and priority date of applicant’s existing administrable water right;
C. each source of
replacement water and the amount of
historic consumptive use related to the water right that is the source
of replacement water, to be established
by documentation satisfactory to the
state engineer;
D. an estimate of
the amount of water to be diverted by the applicant;
E. a map
acceptable to the state engineer showing the source and point of diversion of
the replacement water and the location of the proposed use;
F. a copy of any
agreement between the applicant and the owner of water to be used as
replacement water, or other documentation demonstrating to the state engineer’s
satisfaction that the applicant has a
legal entitlement to a source of water to be used as replacement water;
G. the expected
duration of the plan; and
H. any other
information the state engineer deems necessary.
[19.25.13.31 NMAC
- N, 12/30/2004]
19.25.13.32 GENERALIZED HYDROLOGIC ANALYSIS: The state engineer will develop a generalized hydrologic analysis
for a water master district subject to administration as the basis for the
development, review and approval of replacement plans within that water master
district. The generalized hydrologic
analysis will be based upon, and obtained from, the best available hydrologic
model or models designated by the state engineer for the water master
district. The hydrologic models based
upon the best available hydrogeologic data will take into account existing
surface and groundwater diversions and the combined effect of groundwater and
surface water uses on the basin groundwater and surface water system. Adoption of a generalized hydrologic
analysis shall be undertaken in conjunction with the public rule-making process
for district-specific regulations pursuant to Subsection D of 72-2-8 NMSA. The generalized hydrologic analysis shall
include guidelines for the approval of applications. If an applicant agrees to the use of the generalized hydrologic
analysis in the review of his application, the state engineer shall expedite
his review of the application on that basis.
The generalized hydrologic analysis may be adopted as part of
basin-specific regulations developed by the state engineer for a specific water
master district, or subsequent thereto.
A generalized hydrologic analysis shall not be adopted in the absence of
proposed district-specific regulations for administration. After consideration of public comment on a
proposed generalized hydrologic analysis, the state engineer may adopt a
generalized hydrologic analysis for use to evaluate replacement plans pertinent
to administration within the water master district. In order to adopt a generalized hydrologic analysis, the state
engineer shall find that it is sufficiently conservative to assure that any replacement
plan that is approved:
A. will not impair
in-priority administrable water rights and by limiting diversions under the
replacement plan to no more than the average of recent historical beneficial
use will be a sufficient basis for such a finding; and
B. will not result
in any increase in depletions within the water master district; accepting an
applicant’s assurance that no water shall be diverted under that portion of the
in-priority administrable water right that is committed to the replacement plan,
and finding that foregone average historic depletions associated with the
temporarily transferred in-priority water right are at least 10 percent greater
than the average historic depletions associated with the out-of-priority
administrable water right, are together a sufficient basis for such a finding.
[19.25.13.32 NMAC
- N, 12/30/2004]
19.25.13.33 APPROVAL OF REPLACEMENT PLANS: The state engineer shall determine the adequacy of each source of
water proposed for use as replacement water based upon the generalized
hydrologic analysis adopted by the state engineer. Replacement plans shall be approved for a period not to exceed
two years but may be renewed upon application.
Upon finding that the approval of a replacement plan meets the criteria
of Section 19.25.13.32 NMAC, is necessary to prevent crop loss or other serious
economic harm to the owner of an out-of-priority administrable water right, and
is not contrary to conservation of water or the public welfare of the state,
the state engineer shall approve the replacement plan. The state engineer may require such terms
and conditions for the approval of a replacement plan as he deems to be
necessary, including time limitations on the duration of the replacement
plan. State engineer approvals of replacement
plans shall be presumed to be in proper implementation of the provisions of the
water laws administered by him as provided by Subsection H of 72-2-8 NMSA. Any approved replacement plan shall continue
in effect during the course of objections and appeals proceedings.
[19.25.13.33 NMAC
- N, 12/30/2004]
19.25.13.34 AMENDMENT AND RENEWAL OF REPLACEMENT
PLANS: The holder of a replacement plan may submit
an application to the state engineer at any time during the term of the
replacement plan to amend or renew the replacement plan. Upon state engineer determination that the
permanent acquisition of a senior water right to replace the depletions caused
by the exercise of an out-of-priority water right is not required, or upon a
showing of a good faith effort to permanently acquire a senior water right in
the absence of such a determination, the state engineer may approve the renewal
or amendment of a replacement plan in the same manner as set forth in Section
19.25.13.33 NMAC, after a review of any new information or evidence of changed
conditions submitted in support of the application.
[19.25.13.34 NMAC
- N, 12/30/2004]
19.25.13.35 ACCURACY OR SUFFICIENCY OF
INFORMATION; MODIFICATION: Each applicant for, or holder
of, a replacement plan is responsible for the accuracy and sufficiency of all
material information provided in support of the application to the state
engineer before or after approval of the replacement plan. If an approved replacement plan proves to be
insufficient to replace depletions, the state engineer may require the holder
of a replacement plan to provide additional replacement water at any time
during the term of the replacement plan or within a reasonable period after the
term of the replacement plan if necessary to offset cumulative impacts.
[19.25.13.35 NMAC
- N, 12/30/2004]
19.25.13.36 REVOCATION OF REPLACEMENT PLANS: The state engineer may revoke approval of a replacement plan, in
whole or in part, where material information provided by the applicant for, or
the present holder of, the replacement plan is inaccurate; for non-compliance
with the terms and conditions of the replacement plan; or for non-compliance
with these rules. Upon revocation of a
replacement plan, to the extent of the revocation, all diversions authorized by
the revoked portion of the replacement plan must cease and the holder of the
replacement plan must, within a reasonable period after revocation of the
replacement plan, replace the diversion and depletion overruns incurred, if
any.
[19.25.13.36 NMAC
- N, 12/30/2004]
19.25.13.37 FALLOWING AND NON-USE REQUIREMENTS: Water once committed to a replacement plan cannot be used for any
other purpose during the term of the replacement plan. In the event that the source of replacement
water is irrigated land, the land to which the water right being used for
replacement water is appurtenant shall be fallowed. Fallowed land shall not be irrigated from any source, including
domestic and supplemental wells, without written approval by the state
engineer. Fallowed land shall be
specifically identified by map or survey, or by other means acceptable to the
state engineer. Without written
approval by the state engineer, no water shall be diverted on, or delivered to,
fallowed land during the period in which the water is being used as replacement
water. In the event the source of
replacement water is not irrigated land, the use to which the owner of the
water right that is the source of replacement water is entitled under his right
shall, during the term of the replacement plan, be reduced by the amount of
water committed to the replacement plan.
[19.25.13.37 NMAC
- N, 12/30/2004]
19.25.13.38 FORMATION OF WATER RIGHT OWNER GROUPS: Water right owners are encouraged to form water right owner
groups for the purpose of discussion and negotiation among themselves, with
other water right owners, or with the water master, regarding the possibility
of shortage sharing agreements and other forms of alternative administration
and joint application for replacement plans. Subject to the exemption for
acequias and community ditches under Subsection C of 72-2-9.1 NMSA, in the
event that water right owner groups, aided by the water master, attempt to
reach an agreement for Alternative administration, such efforts by the water
right owner groups and the water master shall constitute promotion of expedited
marketing and leasing as required by that statute.
[19.25.13.38 NMAC
- N, 12/30/2004]
19.25.13.39 REPLACEMENT PLANS BY WATER RIGHT OWNER
GROUPS: Water right owners may, individually or
collectively, submit applications for replacement plans as described
above. Except as may be limited by a
specific regulation or order, water conservancy districts, irrigation
districts, municipalities, or other entities may initiate and submit plans in
accordance with these rules. Water
right owner groups operating under an approved replacement plan shall notify
the state engineer of any plan participant who is not in compliance with the
replacement plan.
[19.25.13.39 NMAC
- N, 12/30/2004]
19.25.13.40 OBJECTIONS TO, AND APPEALS FROM,
APPROVALS, DENIALS AND REVOCATIONS OF REPLACEMENT PLANS: Within thirty days after approval of a replacement plan, the
state engineer shall cause to be published a summary of the approved
replacement plan providing for the opportunity to appeal the approval, denial
or revocation of a replacement plan pursuant to Section 72-2-16 NMSA. The state engineer shall hear objections to
his approval, denial or revocation of all part of a replacement plan in
accordance with Section 72-2-16 NMSA but shall endeavor to hear such objections
in the same prompt manner as provided by Section 72-3-3 NMSA for review of
water master actions. Filing of an
objection to an approval, denial or revocation of a replacement plan will not
stay the state engineer’s determination that all water use under all, or part
of, a revoked replacement plan must cease, pending resolution of the objection.
[19.25.13.40 NMAC
- N, 12/30/2004]
19.25.13.41 APPEALS FROM STATE ENGINEER DECISIONS: All appeals from state engineer review of objections to any
actions or decisions made pursuant to these rules and regulations shall be in
accordance with Section 72-7-1 NMSA.
[19.25.13.41 NMAC
- N, 12/30/2004]
19.25.13.42 REQUEST FOR ADMINISTRATION FROM THE
INTERSTATE STREAM COMMISSION: The state
engineer shall proceed with water rights administration when requested to do so
by the New Mexico interstate stream commission for the purpose of compliance
with interstate stream compacts, which request shall be in the form of a resolution.
[19.25.13.42 NMAC
- N, 12/30/2004]
19.25.13.43 EMERGENCY ADMINISTRATIVE ACTIONS: The state engineer may
determine that the need for water rights administration in a specific district
is so urgent that water rights administration may proceed directly under order
issued pursuant to the procedural requirements of Paragraph 3 of Subsection B
of 72-2-8 NMSA.
[19.25.13.43 NMAC
- N, 12/30/2004]
19.25.13.44 EXPEDITED MARKETING AND LEASING: The state engineer will
review and analyze permit applications in water master districts affected by
priority administration on an expedited basis utilizing the appropriate
hydrologic model adopted by the state engineer for the water master
district. Expedited review of permit applications
in water master districts affected by priority administration shall fulfill the
requirements of Subsection C of 72-2-9.1 NMSA for the promotion of expedited
marketing and leasing of water rights.
[19.25.13.44 NMAC
- N, 12/30/2004]
19.25.13.45 KNOWLEDGE OF AND COMPLIANCE WITH
STATUTES, RULES, REGULATIONS AND CODES: It shall be
the responsibility of all applicants and permittees to know of, and comply
with, all applicable statutes, rules, regulations and codes.
[19.25.13.45 NMAC
- N, 12/30/2004]
19.25.13.46 RETROACTIVE EFFECT: These rules and regulations shall have retroactive effect on all
water master districts already formed at the time of promulgation of these
rules and regulations.
[19.25.13.46 NMAC
- N, 12/30/2004]
19.25.13.47 SEVERABILITY: If any provision or
provisions of these regulations are found to be invalid, the remaining
provisions shall continue to be in effect.
[19.25.13.47 NMAC
- N, 12/30/2004]
19.25.13.48 ENFORCEMENT: The state engineer may enforce these rules by all means within
his legal authority.
[19.25.13.48 NMAC
- N, 12/30/2004]
19.25.13.49 STATE ENGINEER OPTION TO REVISE RULES
AND REGULATIONS: The state engineer may modify
these rules and regulations as needed to accomplish the objectives of these
rules and regulations. Removal of a
regulation or a section of these rules and regulations, whether by a court or
by the state engineer, shall not affect the validity of the remaining rules and
regulations.
[19.25.13.49 NMAC
- N, 12/30/2004]
19.25.13.50 LIBERAL CONSTRUCTION: These rules shall be liberally construed to carry out their
purpose in accordance with Subsection H of 72-2-8 NMSA.
[19.25.13.50 NMAC
- N, 12/30/2004]
HISTORY OF
19.25.13 NMAC: [RESERVED]