TITLE 19 NATURAL
RESOURCES AND WILDLIFE
CHAPTER 25 ADMINISTRATION AND USE OF WATER - GENERAL PROVISIONS
PART 20 NAMBÉ-POJOAQUE-TESUQUE
WATER MASTER DISTRICT: ACTIVE WATER
RESOURCE MANAGEMENT
19.25. 20.1 ISSUING
AGENCY: Office of the State Engineer.
[19.25.20.1 NMAC - N, 9/12/2017]
19.25.20.2 SCOPE:
This rule shall be read in conjunction with the settlement agreement and
as a supplement to 19.25.13 NMAC, and shall apply to all administrable surface
water and groundwater rights within the Nambé-Pojoaque-Tesuque
water master district.
[19.25.20.2 NMAC - N, 9/12/2017]
19.25.20.3 STATUTORY
AUTHORITY: This rule is established pursuant to constitutional
authority set forth in Article 16 of the Constitution of New Mexico, and statutory authority enumerated
in Chapter 72, including, but not limited to, Sections 72-1-1 (1941); 72-1-2
(1907); 72-2-6 (1965); 72-2-8 (1976); 72-2-9 (1907); 72-2-9.1 (2003); 72-2-18
(2007); 72-3-1 (1919); 72-3-2 (2007); 72-3-3 (1953); 72-3-4 (1965); 72-3-5
(1941); 72-5-3 (1941); 72-5-4 (1941) 72-5-5 (1965); 72-5-18 (2007); 72-5-20
(1941); 72-5-22 (1907); 72-5-23 (1986);
72-5-24 (1985); 72-5-25 (1971); 72-5-28 (2002); 72-5-39 (1965); 72-6-1 - 72-6-7
(2014); 72-7-1 (1971); 72-8-1 (1907); 72-9-2 (1907); 72-12-1 (2003); 72-12-2
(1931); Subsection D of 72-12-8 (2002);
72-12-15 (1949); 72-12-16 (1949); 72-12-18 (1953); 72-12-24 (1959); 72-12-27
(1967) NMSA 1978 and the authority provided under the settlement agreement in State of New Mexico ex rel. State Engineer
and United States of America, Pueblo de Nambé, Pueblo
de Pojoaque, Pueblo de San Ildefonso, and the Pueblo de Tesuque v. R. Lee Aamodt, et al., No. 66cv6639 (D.N.M.) (dated April 19,
2012).
[19.25.20.3 NMAC - N, 9/12/2017]
19.25.20.4 DURATION:
Permanent.
[19.25.20.4 NMAC - N, 9/12/2017]
19.25.20.5 EFFECTIVE
DATE: September 12, 2017
[19.25.20.5 NMAC - N, 9/12/2017]
19.25.20.6 OBJECTIVE: The objective of this rule is to provide for
the distribution and administration of the available water supply and
administrable water rights in the Nambé-Pojoaque-Tesuque
basin (“NPT basin”), including the prevention of illegal diversions, waste and
over-diversions, and to implement the terms and conditions of the settlement
agreement and the final decree entered in State
of New Mexico ex rel. State Engineer and United States of America, Pueblo de Nambé, Pueblo de Pojoaque, Pueblo de San Ildefonso, and the
Pueblo de Tesuque v. R. Lee Aamodt, et al., No.
66cv6639 (D.N.M.).
[19.25.20.6 NMAC - N, 9/12/2017]
19.25.20.7 DEFINITIONS:
Unless otherwise defined below or in 19.25.13.7 NMAC, all words herein
shall be given their customary and accepted meanings. All uses of masculine pronouns or possessives
shall be held to include the feminine.
A. “Aamodt case” means the civil action filed in
the United States District Court for the District of New Mexico in State of
New Mexico ex rel. State Engineer and
United States of America, Pueblo de Nambé, Pueblo de
Pojoaque, Pueblo de San Ildefonso, and the Pueblo de Tesuque v. R. Lee Aamodt, et al., No. 66cv6639 (D.N.M.)
(the general adjudication of water rights of the Nambé-Pojoaque-Tesuque
stream system).
B. “Aamodt Litigation Settlement Act” means the
Claims Resolution Act of 2010, Pub. L. No. 11-291, tit. VI,
§§ 601, 626, 124 Stat. 3064, 3134-56 (2010).
C. “Acequia” means a
community ditch under the laws of New Mexico and Section 73-2-27 NMSA 1978.
D. “Administrable water right” or “water
right” means a right to the use of water or a right to impound, store or
release water determined by the decree court in subfile
orders, the partial final judgment and decree (“PFD”), or the final decree, or
a right established pursuant to a permit issued by the state engineer or
recognized by a license issued by the state engineer.
E. “Administration” is defined in Subsection
C of 19.25.13.7 NMAC. Administration
includes:
(1) direct flow
administration,
(2) storage
water administration,
(3) depletion
limit administration, and
(4) alternative
administration. Alternative
administration includes, but is not limited to, Pueblo alternative
administration, defined in Subsection LL of 19.25.20.7 NMAC and Tesuque
alternative administration, set forth in 19.25.20.121 NMAC.
F. “AFY” means acre-feet of water per year.
G. “Agricultural use” means the use of
surface or groundwater for cultivating the soil and growing crops or irrigating
pasture for livestock grazing.
Agricultural uses do not include domestic, community, commercial,
industrial or livestock uses.
H. “CIR” or “consumptive irrigation requirement” means 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.
I. “Commercial or industrial use” means the
diversion and consumption of water in connection with any activity that
provides, or offers to provide, goods or services for consideration, not
including domestic uses incidental to a commercial or industrial facility.
J. “Compliance order” means a written order
issued by the state engineer pursuant to Section 72-2-18 NMSA 1978 or the
settlement agreement to an owner of record or person making an illegal
diversion, violating a requirement or prohibition
of Chapter 72 NMSA 1978, a regulation, code, order or special order adopted by
the state engineer pursuant to Section 72-2-8 NMSA 1978, a condition of a
permit or license issued by the state engineer pursuant to law, an order
entered by the decree court adjudicating a water right, or the terms of the
settlement agreement, partial final decree or final decree.
K. “Connection
fund” or “Pojoaque valley water utility connect fund” means
the Pojoaque valley water utility connection fund administered by Santa Fe county to pay the cost of connecting well water right owners
to the county water utility.
L. “County water utility” or “CWU” means the water utility organized
by the county to do the following:
(1) receive
water distributed by the regional water authority (“RWA”);
(2) provide the
water received under Paragraph (1) of Subsection L of 19.25.20.7 NMAC to
customers on non-Pueblo land in the NPT basin; and carry out any other activities
in accordance with the Aamodt Litigation Settlement
Act.
M. “Curtailment order” means a verbal or
written order from the water master directing an owner of record or person
diverting water to immediately curtail such diversion, in whole or in part.
N. “Decree court” means the United States
District Court for the District of New Mexico in the Aamodt
case.
O. “Domestic use” means the use of water for indoor and outdoor
household purposes, including water used for drinking, sanitation, the
irrigation of not to exceed one acre of noncommercial trees, lawn, garden, or
landscaping, the care and feeding of household pets, and such uses of water
incidental to a governmental, commercial or non-profit facility. Domestic uses do not otherwise include the
use of water for agricultural purposes, and do not include any use of water for
commercial, industrial, community or livestock watering purposes.
P. “Election” or “elect” means a choice to connect or not connect to the county water
utility under the terms of the settlement agreement.
Q. “FDR” or “farm delivery requirement” means the quantity of water, exclusive
of effective rainfall, that is delivered to the farm headgate
or is diverted from a source of water that originates on the farm itself, such
as a well or spring, to satisfy the CIR of crops grown on the farm during the
irrigation accounting year, or as otherwise provided by permit.
R. “Final decree” means the Final
Judgment and Decree of the Water Rights of the Nambé,
Pojoaque, and Tesuque Stream System entered by the decree court.
S. “Household” means a single or
multi-family residence including outbuildings such as guest houses, barns, and
sheds.
T. “Hydrologic model” means the hydrologic model developed by the
state of New Mexico and the United States pursuant to the settlement agreement,
as updated and further developed by the state engineer for the administration
and use of water in the NPT basin, and for determining the effects of
administrative actions subject to the settlement agreement. Any
generalized hydrologic analysis adopted by the state engineer for the NPT
district shall be based upon the hydrologic model.
U. “Illegal diversion” means any of the
following:
(1) a diversion
that exceeds the quantity of an administrable water right or beneficial use
requirements;
(2) a diversion in violation of a rule,
statute, license, permit, PFD, final decree, subfile
order, or other court order, other than a diversion described in paragraph (1)
of this Subsection;
(3) in the case
of an acequia or other entity entitled to divert and
distribute water on behalf of its membership or constituency, any diversion
that exceeds the sum total quantity of all the administrable water rights in
that acequia or other entity;
(4) waste;
(5) a diversion
in violation of a curtailment order or compliance order;
(6) a diversion
that is out-of-priority;
(7) any
diversion from an unauthorized point of diversion;
(8) a diversion
for conveyance to an unauthorized place of use or for an unauthorized purpose
of use;
(9) a diversion
of groundwater in excess of the agreed amount of use pursuant to an election
made under the settlement agreement; or
(10) a diversion of
surface or groundwater that is contrary to the alternative administration set
forth in the settlement agreement.
V. “Interfere” or “interference” means a material adverse effect on the quality,
divertible quantity, or the cost of diversion of surface water historically
used to satisfy surface water rights subject to the settlement agreement.
W. “Livestock use” means the diversion and
consumption of water for the care and feeding of domestic animals such as
cattle or horses. Livestock use does not
include the use of water in connection with the operation or maintenance of
feedlots or agricultural use of water.
X. “Mitigation fund” means the fund created
and administered by the state to mitigate impairment to non-Pueblo groundwater
rights as a result of a new or changed Pueblo use of water on Pueblo land.
Y. “Mutual domestic water consumers association”
or “MDWCA” means an association
organized under or subject to the provisions of the Sanitary Projects Act,
Sections 3-29-1 through 3-29-20 NMSA 1978.
Z. “Nambé Pojoaque Tesuque basin” or “NPT basin” means
the Nambé-Pojoaque-Tesuque stream system, also known
as the Pojoaque basin, which is the geographic area limited by a surface water
divide (which can be drawn on a topographic map), within which rainfall and
runoff flow into arroyos, drainages, and named tributaries that drain to:
(1) the Rio
Pojoaque; or
(2) the two
unnamed arroyos immediately south of the Rio Pojoaque; and
(3) the two
arroyos (including the Arroyo Alamo) that are immediately to the north of the
confluence of the Rio Pojoaque and the Rio Grande.
The term “NPT basin” includes the San
Ildefonso Eastern Reservation recognized by the Act of September 14, 1961, 75
Stat. 505, Sec. 8.
AA. “Nambe
Pojoaque Tesuque water master district” or “NPT district” is the same
geographic area as the NPT basin.
BB. “Non-Pueblo
water right” means a water
right held by a non-Pueblo owner.
CC. “Offset water” means any quantity of
water provided to offset adverse stream depletion effects caused by a
particular diversion of water.
DD. “Out-of-priority” is defined under
Subsection U of 19.25.13.7 NMAC.
EE. “Owner
of record” means a person named in a subfile
order or in a permit, license, change of ownership form or other documentation
filed with the state engineer identified as the current owner of an administrable
water right. For purposes of
administration by the water master, the term owner of record shall include a
lessee or other person authorized to use or manage the use of water, or the
representative of an acequia or other entity
authorized to divert water on behalf of its membership or constituency. The owner of record may or may not be the
legal current owner of the water right.
FF. “Partial final decree” or “PFD” means the Partial Final
Judgment and Decree of the Water Rights of the Pueblos of Nambé, Pojoaque, San Ildefonso, and Tesuque entered by the decree court on March 23,
2016 (docket no. 10547).
GG. “PDR”
or “project diversion requirement” means
the annual quantity of water necessary to be diverted from a source of surface
water to satisfy the farm delivery requirement and to account for off-farm
ditch conveyance delivery losses during the irrigation accounting year.
HH. “Person”
means an individual, multiple individuals, legal entity, Pueblo or combination
thereof.
II. “Post-1982 well agreement” means the Post-1982 Domestic Wells Stipulation and
Settlement Agreement (May 27, 1999) (docket no. 5516) adopted and approved
by the decree court (Oct. 4, 2001) (docket no. 5549) to provide for the
appointment of a water master, metering of domestic wells under well permits
issued by the state engineer after January 13, 1983, and agreed-upon amounts of
water for domestic use without restriction as to indoor or closed system use.
JJ. “Pre-basin well” means a well in the NPT
basin in existence prior to November
29, 1956.
KK. “Priority
administration” is defined in Subsection 5 of 19.25.13.7 NMAC.
LL. “Pueblo alternative administration”
means the form of alternative administration whereby the Pueblos agree to share water pursuant to
section 4 of the settlement agreement.
MM. “Pueblos”
means collectively the Pueblos of Nambé, Pojoaque,
San Ildefonso, and Tesuque. “Pueblo”
means each of the Pueblos of Nambé, Pojoaque, San
Ildefonso or Tesuque.
NN. “Pueblo
land” means any real property that is:
(1) held in
trust by the United States for a Pueblo within the NPT basin:
(a) prior to
March 21, 2016, the date on which the decree court approved the settlement
agreement, or
(b) on or after March 21, 2016, if the
real property is located within the exterior boundaries of the Pueblo as
recognized and confirmed by patent issued under the Act of December 22, 1858
(11 Stat. 374, chapter 5) or within the exterior boundary of any territory set
aside for the Pueblo by law, executive order or court decree;
(2) owned by a
Pueblo within the NPT basin:
(a) prior to
March 21, 2016, the date on which the decree court approved the settlement
agreement, or
(b) acquired by a Pueblo on or after
March 21, 2016, if the real property is located within the exterior boundaries
of the Pueblo as recognized and confirmed by patent issued under the Act of
December 22, 1858 (11 Stat. 374, chapter 5) or within the exterior boundary of
any territory set aside for the Pueblo by law, executive order or court decree;
(3) owned by a Pueblo or held by the
United States in trust for the benefit of a Pueblo outside the NPT basin that
is located within the exterior boundaries of the Pueblo as recognized and
confirmed by patent issued under the Act of December 22, 1858 (11 Stat. 374,
chapter 5); or
(4) within the exterior boundaries of any
real property located outside the NPT basin set aside for a Pueblo by law,
executive order or court decree if the land is contiguous to land held in trust
by the United States for that Pueblo as of January 1, 2005.
OO. “Pueblo
water rights” means the water rights of the Pueblos as determined in the
PFD, including the following:
(1) “Alternative
water” means an amount of water equivalent to the Pueblo of Pojoaque’s
supplemental water rights and which the Pueblo of Pojoaque may receive through
the regional water system;
(2) “Existing
basin use rights” means those water rights as defined in the PFD;
(3) “First
priority rights” means those water rights as defined in the PFD;
(4) “Future basin use rights”
means those water rights as defined in the PFD;
(5) “Reserved
water rights” means those water rights of the Pueblos of Nambé and San Ildefonso to reserved water rights to
consumptively use the surface and groundwater of the NPT, to be diverted and
used in accordance with the settlement agreement;
(6) “Supplemental Pueblo rights”
means those water rights as
defined in the PFD. The Pueblo of
Pojoaque has a supplemental right to consumptively use groundwater and surface
water of the NPT, to be diverted and used in accordance with the settlement
agreement;
PP. “Red tag” means a tag affixed to a point
of diversion by the water master to notify an owner of record or person that
any further diversion of water is illegal.
QQ. “Regional water authority” or “RWA” means the Pojoaque basin regional
water authority organized by the Pueblos and county of Santa Fe to operate and
maintain the diversion and treatment facilities, transmission pipelines and
other facilities of the regional water system.
RR. “Regional water
system” means the regional water system as defined in the Aamodt Litigation Settlement Act.
SS. “Report on anticipated uses” means the
report filed by each Pueblo each year describing the anticipated uses of that
Pueblo’s water rights for a calendar year.
TT. “Section
4 protection” means the protection provided non-Pueblo water rights during
Pueblo alternative administration of the first priority rights of the Pueblos
pursuant to section 4 of the settlement agreement.
UU. “Section
72-12-1 well” means a well permitted
by the state engineer under Sections 72-12-1.1, 72-12-1.2, and 72-12-1.3
NMSA 1978, or their predecessor statutes.
VV. “Settlement agreement” means the
settlement agreement approved by the decree court on March 21, 2016 (docket no.
10543) and incorporated into the decree court’s partial final decree entered on
March 23, 2016 (docket no. 10547),
as authorized, ratified and confirmed by Section 602(18) of the Aamodt Litigation Settlement Act.
WW. “Settlement
party” means any person that signed the settlement agreement or authorized
a representative to sign the settlement agreement, and their successors in
interest.
XX. “State engineer” means the New Mexico
state engineer or his designated appointee.
YY. “Subfile order” means an order entered by the
decree court adjudicating a non-Pueblo water right.
ZZ. “TBI letter” means written notice to the
water master of the acreage to be irrigated under a ditch during a calendar
year.
AAA. “Tributary”
means the Rio Pojoaque, Rio Cuyamungue, Rio Tesuque,
Rio Nambé, Rio Chupadero,
or Rio en Medio.
BBB. “Water
master” means the Nambé-Pojoaque-Tesuque water
master or any of the sub-district water masters of the Nambé-Pojoaque-Tesuque
water master district.
[19.25.20.7 NMAC - N, 9/12/2017]
19.25.20.8 CONSTRUCTION: This rule shall be construed consistent with, and subject to,
the authority of the state engineer for the administration of water in the
state of New Mexico, and the authority of the state engineer under the settlement
agreement and final decree. This rule
shall not be construed as imposing any limitation on the authority of the state
engineer to administer water rights created under state law, act on water
rights applications pursuant to state law, permit water rights under state law,
or order the curtailment, in whole or in part, of the use of water pursuant to
state law or under the terms of the settlement agreement or final decree. This rule shall be construed consistent with
the settlement agreement and the Constitution of New Mexico.
[19.25.20.8 NMAC - N, 9/12/2017]
19.25.20.9 SEVERABILITY: If any provision of this rule is found to be invalid, the remainder
shall continue to be in effect.
[19.25.20.9 NMAC - N, 9/12/2017]
19.25.20.10 KNOWLEDGE
OF AND COMPLIANCE WITH STATUTES, RULES, REGULATIONS
AND CODES: It shall be the responsibility of all persons
to know of, and comply with, all applicable statutes, rules, regulations and
codes.
[19.25.20.10 NMAC - N, 9/12/2017]
19.25.20.11 through 19.25.16.100 [RESERVED]
19.25.20.101 GENERAL
AUTHORITY AND DUTIES OF THE NPT DISTRICT WATER MASTER:
A. The water master has the general authority and duties
set out in 19.25.13.16 NMAC and 19.25.13.17 NMAC. In addition, the water master has the
authority and duties described in this Section.
B. The
water master may, as necessary to effect administration, and implementation of
and compliance with the terms and conditions of the settlement agreement, the
PFD and the final decree:
(1) supervise
all diversions from surface and underground water sources;
(2) curtail surface and groundwater
diversions to ensure compliance;
(3) issue verbal or written orders
requiring installation, calibration, repair, and replacement of adequate headgates and surface water measurement devices at all
surface water diversion works, and all groundwater diversion measuring devices
as necessary;
(4) issue verbal or written orders
requiring calibration, repair, replacement or installation of meters in
accordance with the requirements of Subsection C of 19.27.5.13 NMAC to measure
the amount of water diverted from each well;
(5) issue or
affix to points of diversion curtailment orders or red tags that provide notice
of illegal diversions or diversions that are out of priority under priority
administration or contrary to those allowed under the settlement agreement or
final decree. Once a red tag has been
affixed, the owner of record or person shall not divert water until the water
master has removed the tag;
(6) issue verbal
or written curtailment orders to owners of record or persons making illegal
diversions and document such illegal diversions;
(7) issue verbal
or written orders to achieve the objectives of this rule;
(8) take any action necessary to close,
cap, lock or otherwise temporarily disable any diversion headgate,
pump, or equipment to ensure compliance, and affix to the diversion structure a
red tag whenever the water master takes such action;
(9) ensure compliance with applicable
state engineer, water master or court orders;
(10) determine whether a new or changed
Pueblo use of its first priority rights will interfere with any surface water
rights eligible for section 4 protection, and the amount of any offsets
required;
(11) determine if
the change in point of diversion, purpose or place of use of Pueblo-owned state
law water rights within the lands of a Pueblo will impair groundwater rights or
interfere with any surface water rights.
A determination by the water master of projected hydrologic effects from
such changes to state water law rights within a Pueblo shall include
consideration of remedies proposed by the Pueblo to reduce groundwater effects
below the threshold level of impairment;
(12) enter private,
public, or Pueblo lands to inspect, monitor, and maintain all measuring
facilities and to operate, close or lock headgates;
(13) with respect
to agricultural lands, enter upon private or public lands to verify the irrigability of lands designated by owners of record to be irrigated
in a particular season and determine whether and to what extent irrigation
occurs;
(14) maintain
records, including records of elections made pursuant to the settlement
agreement and subsequent compliance with such elections; and
(15) respond in a
timely manner to requests for priority administration.
C. The water master may exercise any
remedy available to him under applicable law to enforce compliance by owners of
record and Pueblos with their obligations under the settlement agreement, the
final decree, any election made pursuant to the settlement agreement, and this
rule.
[19.25.20.101 NMAC - N, 9/12/2017]
19.25.20.102 WATER MASTER REPORT:
A. The
water master shall by March first of each calendar year submit a report to the
state engineer that describes all administrative action taken under or required
by this rule in the previous calendar year.
B. The
report shall be available to the public for inspection and copying at the
office of the state engineer, at the requestor’s expense by June first, and
will be posted on the office of the state engineer’s website.
C. The
report shall include the information described in 19.25.13.26 NMAC and shall
also include:
(1) the quantity
of water diverted through each meter for each quarter and total for the year;
(2) a summary of
all notices of alleged violation, and disposition thereof; and
(3) a summary of
all other actions taken by the water master during the year, including
(a) the number
of times each meter was actually inspected to verify proper operation;
(b) actions
taken to verify reported meter readings including a description of procedures
used for any spot-checking; and
(c) other
information as appropriate.
[19.25.20.102 NMAC - N, 9/12/2017]
19.25.20.103 REPORTING OF LANDS TO BE IRRIGATED:
A. By
March first of each year, the mayordomo, acequia commissioner, or designated representative of each acequia and the members of each private ditch shall notify
the water master in writing of the acreage under that ditch to be irrigated
(“TBI letters”) during that calendar year.
TBI letters from acequias and members of
private ditches shall be accompanied by maps that clearly identify the
non-Pueblo lands to be irrigated that year and the respective acreage of the
tracts. Where the ditch serves as a
source of irrigation water for both Pueblo and non-Pueblo lands, the TBI
letters shall include only information for non-Pueblo lands.
B.
Pueblo lands intended to be irrigated shall be reported by the Pueblos in their
annual report on anticipated uses of water.
C. Based
upon the information provided, the water master shall determine the maximum
diversion rate for each ditch in the stream system required to meet the total
projected demand that year, including the demand associated with valid
impoundments under each ditch for livestock uses, if any. The water master shall notify the mayordomo, acequia commissioner,
or designated representative that submitted the TBI letter of each acequia, the members of each private ditch, and the Pueblos
of the maximum diversion rates for all ditches and post the maximum diversion
rate for each ditch at the point of diversion or headgate
of the ditch.
[19.25.20.103 NMAC - N, 9/12/2017]
19.25.20.104 DISTRIBUTION OF WATER BY ACEQUIAS: The water master shall regulate the rate and annual volume of
diversions from the tributaries in the NPT basin by acequias
in accordance with this rule. This rule
shall not be construed to affect the internal management of acequias
and the distribution of water by acequias in accordance
with Section 72-9-2 NMSA 1978.
[19.25.20.104 NMAC - N, 9/12/2017]
19.25.20.105 GENERAL PRINCIPLES FOR USE AND ADMINISTRATION OF SURFACE
WATER AND GROUNDWATER: These general principles apply to the administration
of all surface water rights and groundwater rights in the NPT basin.
A. The
NPT basin is fully appropriated and there shall be no new appropriations of
surface or groundwater.
B. No
surface or groundwater diverted within the NPT basin may be delivered for use
outside the NPT basin other than for Pueblo use on Pueblo land.
C. Diversions
from the Rio Grande shall not be considered to be diversions within the NPT
basin.
D. Any
water rights diverted by the regional water authority within the NPT basin,
whether based on state or federal law, including contractual rights to water,
shall be administered at the point of diversion in accordance with state law
and regulation.
E. For
agricultural uses, the amount of water shall not exceed 4.65 AFY per acre
diverted by the ditch at the point of diversion from the source of surface
water (PDR), or 3.35 AFY per acre delivered at the farm headgate
or well head (FDR), or a consumptive irrigation requirement of 1.84 AFY per
acre (CIR), whichever is less.
F. For
non-agricultural uses, the consumptive use amount shall be deemed to be equal
to the amount of the diversion. The
diversion amount shall not exceed the consumptive use amount unless a return
flow plan is approved by the state engineer.
G. The
priority and amount of water for all surface water rights is the priority and
amount of water adjudicated in the final decree.
H. The point of
diversion, purpose or place of use of non-Pueblo water rights may only be
changed in accordance with state law and this rule.
I. After
March 21, 2016, permits for new groundwater points of diversion in the NPT
basin may only be issued on the condition that the diversion be
metered and only as set forth in this rule.
J. The
replacement, repair or deepening of a well pursuant to a permit from the state
engineer shall not be considered a change in point of diversion, purpose or
place of use.
K. An
application for a change in point of diversion or place or purpose of use of a
water right into or out of an acequia or community
ditch subject to Sections 73-2-1 through 73-2-68 NMSA 1978 or Sections 73-3-1
through 73-3-11 NMSA 1978 shall include the documentary evidence of the
applicant’s compliance with the requirements of Section 72-5-24.1 NMSA 1978.
[19.25.20.105 NMAC - N, 9/12/2017]
19.25.20.106 METERING OF NON-PUEBLO AND PUEBLO WELLS:
A. Pursuant
to the well metering order for the NPT basin issued by the state engineer, each
well owner of record shall install a totalizing meter in accordance with the
requirements of Subsection C of 19.27.5.13 NMAC and any additional requirements
of the state engineer, to measure the amount of water diverted from each well.
B. Each
Pueblo shall install a totalizing meter to measure the amount of water diverted
from each well located on Pueblo land, consistent with the well metering order
for the NPT basin issued by the state engineer.
C. Each
well owner of record shall file a meter installation and inspection report with
the state engineer in accordance with the requirements of Subsection C of
19.27.5.13 NMAC and any additional requirements of the state engineer. Pursuant to the settlement agreement and the
final decree, each Pueblo shall file a report with the state engineer
consistent with the requirements of Subsection C of 19.27.5.13 NMAC.
D. Each
well owner of record shall submit meter readings to the state engineer in
accordance with the requirements of Subsection C of 19.27.5.13 NMAC and any
additional requirements of the state engineer. Pursuant to the settlement
agreement and the final decree, each Pueblo shall file a report with the state
engineer consistent with the requirements of Subsection C of 19.27.5.13 NMAC.
E. The
requirements of this Section shall also apply to all new wells drilled on
Pueblo land after the effective date of this rule and a meter shall be
installed on such wells at the time the well is drilled.
[19.25.20.106 NMAC - N, 9/12/2017]
19.25.20.107 DIVERSION, USE, AND ADMINISTRATION OF SURFACE WATER FOR
NON-PUEBLO WATER RIGHTS: Diversion, use,
and administration of surface water for non-Pueblo water rights shall be
subject to the following provisions.
A. Change in point of diversion from surface
water to groundwater for agricultural uses.
The state engineer may issue permits to change the point of
diversion of a water right for agricultural use from surface water to
groundwater, provided:
(1) Water rights from within the NPT
basin are moved to the new point of diversion in accordance with state law and
this rule;
(2) The priority and amount of the water
rights that may be moved shall be determined under state law and shall be
reduced in amount to account for historic supply at the original surface point
of diversion.
B. Section 4 protection
upon change in point of diversion, purpose or place of use of surface water. Section 4 protection and offset
requirements for interference shall only apply to the amount of water that is
determined to be the current use of water under a surface water right. The current use of water under a surface
water right is the calculated average yearly use of water under the right for
the five-year period immediately preceding any application to change the point
of diversion, purpose or place of use of that right.
[19.25.20.107 NMAC - N, 9/12/2017]
19.25.20.108 DIVERSION, USE, AND ADMINISTRATION OF GROUNDWATER FOR
NON-PUEBLO WATER RIGHTS:
A. Determination of priority and amount.
(1) The priority and the diversion amount
for a Section 72-12-1 well, a pre-basin well or well drilled under a permit
from the state engineer shall be the priority and amount adjudicated in the
final decree or authorized in a subsequent permit or license issued by the
state engineer, unless the use is limited by the terms of an election under the
settlement agreement.
(2) If no amount is set forth in the
final decree or in a subsequent permit or license, then the amount shall be the
amount of historic beneficial use of water from the well.
B. Determination of historic beneficial use.
(1) If no specific amount of water is
set forth in the final decree or in a subsequent permit or license, then the
amount of historic beneficial use per household shall be presumed to be the
following:
(a) 0.7 afy for
pre-basin wells (in existence prior to November 29, 1956);
(b) 0.7 afy for
Section 72-12-1 wells permitted before January 13, 1983;
(c) 0.7 afy for
Section 72-12-1 wells permitted after January 13, 1983 that entered into the
post-1982 well agreement;
(d) 0.5 afy for
Section 72-12-1 wells permitted after January 13, 1983 that did not enter into
the post-1982 well agreement.
(2) In no event shall the total diversion
amount from a Section 72-12-1 well exceed 3 afy.
(a) meter readings taken in compliance
with state engineer requirements, consistent with the metering order for the
NPT basin, for a period of one to three calendar years, which may be the first
calendar year of meter readings at the owner of record’s request; and
(b) a map of the area of the claimed
beneficial use prepared by either a licensed professional surveyor or licensed
professional engineer in the state of New Mexico formatted as required by
19.26.2.24 NMAC, or a hydrographic survey map or aerial photograph acceptable
to the state engineer that designates the claimed area of beneficial use from
each point of diversion; and
(c) any other documentation acceptable to
the state engineer that demonstrates the history and continuity of historic
beneficial use, and may include deeds, survey plats, affidavits or other evidence
to substantiate the claim.
(4) The water master will determine the
amount based upon the evidence submitted pursuant to Paragraph 3 of Subsection
B of this Section of the highest amount of historic beneficial use in one
calendar year,
(5) Any historic beneficial use amount
less than 0.5 afy is not subject to a reduction under
the settlement agreement. An owner of
record who elects to reduce historic beneficial use pursuant to an election
made under the settlement agreement may be subject to restrictions no sooner
than five years after the entry of the well metering order for the NPT basin,
but in no event shall an owner of record be required to reduce below 0.5 afy.
C. Elections
relating to the settlement agreement and connection to county water utility.
(1) An owner of record of a water right
from a well used for domestic, commercial or
industrial purposes may elect pursuant to the settlement agreement to connect
to the county water utility for water service as soon as that service is
available.
(2) Except for new groundwater points of
diversion for domestic, commercial or industrial uses, an owner of record of a
groundwater right shall not be required to connect to the county water utility
and shall not be required to cease use of their well.
(3) An owner of record that becomes a
settlement party that makes an election and is in compliance with the terms of
the election shall be eligible for protections under sections 4 and 3.1.7 of
the settlement agreement.
D. State
engineer permits to replace, repair or deepen a well:
(1) Section
72-12-1 well:
(a) Permits for replacement wells, or
permits to deepen or repair a well, may be issued to Section 72-12-1 well
owners of record until such time as those owners connect to the county water
utility under the terms of the settlement agreement.
(b) No replacement well permit will be
issued to a Section 72-12-1 well owner of record that makes an election to
continue use of the well for domestic purposes in perpetuity, or to connect to
the county water utility upon transfer of ownership of the property, until such
well owner of record has provided documentation of compliance with all
applicable county requirements.
(c) If the county water utility is unable
to deliver water to an owner of record that has connected to the county water
utility for water service, the CWU shall convey title to the water right back
to the previous owner of record, who may apply to the state engineer for a
permit to recommence diversions from the well or drill a replacement well for
the purpose of diverting groundwater in the amount previously conveyed and
permitted to the county water utility.
(2) Pre-basin
or permitted wells (other than Section 72-12-1 wells): Permits for replacement wells, or permits to
repair or deepen a well (other than Section 72-12-1 wells) may be issued in
accordance with state law and rules, provided the well is metered and operated
in compliance with any conditions of an applicable permit.
E. New groundwater points of diversion. Permits for new groundwater points of
diversion for domestic, agricultural, commercial or industrial uses, including
a permit for a Section 72-12-1 well, may be issued provided:
(1) Water rights from within the NPT
basin are moved to the new groundwater point of diversion in accordance with
state law and this rule;
(2) The priority and amount of the moved
rights shall be determined under state law and reflect reductions in amount to
account for historic supply; and
(3) The permitted diversions shall cease
and the well owner of record shall connect to the county water utility as soon
as water service is available.
(4) Existing mutual domestic water
consumers associations and existing commercial users shall be required to cease
the newly permitted diversion and connect to the county water utility once
water service is available, unless they made an election to continue such water
use under the terms of the settlement agreement and this rule.
(5) An
application for a change in point of diversion or place or purpose of use of a
water right into or out of an acequia or community
ditch subject to Sections 73-2-1 through 73-2-68 NMSA 1978 or Sections 73-3-1
through 73-3-11 NMSA 1978 shall include the documentary evidence of the
applicant’s compliance with the requirements of Section 72-5-24.1 NMSA 1978.
F. Change in point of diversion,
purpose or place of use of groundwater.
(1) The point of diversion, purpose or
place of use of groundwater rights from a pre-basin well or well drilled under
a permit from the state engineer, other than wells permitted under Section
72-12-1, may be changed in accordance with state law and this rule. The point of diversion, purpose or place of
use of groundwater rights from a well permitted under Section 72-12-1 may only
be changed in accordance with 19.25.20.110 NMAC.
(2) Upon any such change, section 4
protection shall not apply unless the new diversion is metered and operated in
compliance with any applicable permit conditions and consistent with the terms
of the settlement agreement.
G. Supplemental groundwater points of diversion.
(1) Permits for a supplemental point of
diversion from groundwater for an agricultural use may be issued, provided:
(a) The total diversion from surface and
groundwater is limited to the historic supply of the surface water diversion.
(b) If a surface water diversion is
permitted to continue and is not metered, the acreage served by the
supplemented and supplemental points of diversion is reduced by the percentage
of deficiency in the historic supply.
(c) If a groundwater point of diversion
is used to supplement another groundwater point of diversion, both diversions
shall be metered.
[19.25.20.108 NMAC - N, 9/12/2017]
19.25.20.109 CONVEYANCE OF OWNERSHIP OF GROUNDWATER RIGHTS FOR DOMESTIC USE
TO THE COUNTY WATER UTILITY:
A. General Provisions.
(1) Ownership
of water rights for domestic use from a Section 72-12-1 well or a pre-basin
well may be conveyed to the county water utility for the full or partial amount
of the water right.
(2) The CWU may change the point of
diversion, place and purpose of use of the water rights by application to the
state engineer.
B. Section 72-12-1 wells. The amount of
the water right to be conveyed to the county water utility per household from
each Section 72-12-1 well shall be limited to one of the following options:
(1) Full
amount for single household wells. If a household elects to connect to the
CWU and to no longer divert water from a Section 72-12-1 well, ownership of the
full amount adjudicated shall be conveyed to the CWU. If no amount is specified in the final decree
or determined pursuant to Subsection (B) of 19.25.20.108 NMAC, the amount shall
be presumed to be the following:
(a) 0.7 afy for
Section 72-12-1 wells permitted before January 13, 1983;
(b) 0.7 afy for
Section 72-12-1 wells permitted after January 13, 1983 that entered into the
post-1982 well agreement;
(c) 0.5 afy for
Section 72-12-1 wells permitted after January 13, 1983 that did not enter into
the post-1982 well agreement.
(2) Partial
amount for single household wells.
If a household elects to connect to the CWU for indoor uses and to
continue to divert a portion of its water right from a Section 72-12-1 well for
outdoor use only, the household shall convey ownership of 0.3 afy to the CWU, as follows:
(a) A household with a water right of 0.4
afy or greater shall convey ownership of 0.3 afy to the CWU.
(i) The
household may continue to divert the amount of the household’s remaining right
from the Section 72-12-1 well for outdoor use only.
(ii) The well shall be metered, not
interconnected with the CWU water system, and the outdoor use shall be limited
to irrigation not to exceed the amount of the household’s remaining right in
the well for up to one acre of noncommercial trees, lawn or garden, and if
allowed, livestock watering.
(b) A household with an adjudicated water
right for a single household that does not define a specific amount of water
shall convey ownership of 0.3 afy to the CWU.
(i) The household
may continue to divert up to 0.2 afy from the Section
72-12-1 well for outdoor use only.
(ii) The amount that may be diverted may
exceed 0.2 afy per household based upon a
determination of greater historic beneficial use by the water master pursuant
to Subsection (B) of 19.25.20.108 NMAC.
(iii) The well shall be metered, not
interconnected with the CWU water system, and the outdoor use shall be limited
to irrigation not to exceed the amount of the household’s remaining right in
the well for up to one acre of noncommercial trees, lawn or garden, and, if
allowed, livestock watering.
(3) Full
amount for multiple household wells.
If a household with a water right from a multiple household Section
72-12-1 well elects to connect to the CWU and to no longer divert water from
the well, ownership of the full amount per household adjudicated shall be
conveyed to the CWU. If no specific
amount is defined in the final decree or determined pursuant to Subsection (B)
of 19.25.20.108 NMAC, the amount per household is presumed to be the following
amounts (or as limited by the maximum amount for all households combined from
the Section 72-12-1 well):
(a) 0.7 afy for
Section 72-12-1 wells permitted before January 13, 1983;
(b) 0.7 afy for
Section 72-12-1 wells permitted after January 13, 1983 that entered into the
post-1982 well agreement;
(c) 0.5 afy for
Section 72-12-1 wells permitted after January 13, 1983 that did not enter into
the post-1982 well agreement.
(4) Partial amount for multiple household
wells. If a household with a water
right from a multiple household Section 72-12-1 well elects to connect to the
CWU for indoor uses and to continue to divert a portion of its water right from
the well for outdoor use only, the household shall convey ownership of 0.3 afy to the CWU, as follows:
(a) A household with water right of 0.4 afy or greater shall convey ownership of 0.3 afy to the CWU.
(i) The
household may continue to divert the amount of the household’s remaining right
in the well for outdoor use only (limited by the maximum amount for all
households combined from the Section 72-12-1 well).
(ii) The well shall be metered, not
interconnected with the CWU water system, and the outdoor use shall be limited
to irrigation not to exceed the amount of the household’s remaining right in
the well for up to one acre of noncommercial trees, lawn or garden, and if
allowed, livestock watering.
(b) A household with an adjudicated water
right from a multiple household Section 72-12-1 well that does not define a
specific amount of water shall convey ownership of 0.3 afy
to the CWU.
(i) The
household may continue to divert the amount of the household’s remaining right
from the Section 72-12-1 well for outdoor use only (limited by the maximum
amount for all households combined from the Section 72-12-1 well).
(ii) The well shall be metered, not
interconnected with the CWU water system, and the outdoor use shall be limited to
irrigation not to exceed the amount of the household’s remaining right in the
well for up to one acre of noncommercial trees, lawn or garden, and, if
allowed, livestock watering.
C. Pre-Basin Wells. Ownership of domestic
use water rights from pre-basin wells may be conveyed to the CWU. The CWU may change the point of diversion,
place and purpose of use of the water right by application to the state
engineer. The amount of the water right
to be conveyed to the county water utility from each pre-basin well shall be
limited to one of the following options chosen by the owner of record:
(1) Full amount for single household
wells. If a household elects to
connect to the CWU and to no longer divert water from a pre-basin well, the
household shall convey ownership of the full amount adjudicated to the
CWU. For pre-basin wells that have not
been adjudicated a specific amount of water in the final decree or determined
pursuant to Subsection (B) of 19.25.20.108 NMAC, the amount is presumed to be
0.7 afy per well.
(2) Partial amount for single household
wells. If a household elects to connect to the CWU
and to continue to divert water from a pre-basin well for outdoor or other
adjudicated uses only, the household shall convey ownership of 0.3 afy to the CWU as follows:
(a) A household with an adjudicated water
right of 0.4 afy or greater shall convey ownership of
0.3 afy to the CWU.
(i) The
household may continue to divert the amount of the household’s remaining right
in the well for outdoor or other adjudicated uses only.
(ii) The well shall be metered and not
interconnected with the CWU water system.
(b) For pre-basin wells that have not
been adjudicated a specific amount of water, the amount of water conveyed to
the CWU shall be 0.3 afy.
(i) The
household may continue to divert up to 0.4 afy from
the pre-basin well for outdoor or other adjudicated uses only.
(ii) The amount of the retained water
right may exceed 0.4 afy per based upon a
determination of greater historic beneficial use by the water master pursuant
to Subsection (B) of 19.25.20.108 NMAC, reduced by the total amount of the
water right conveyed to the CWU from the well.
(iii) The well shall be metered and not
interconnected with the CWU water system.
(3) Full
amount for multiple household wells.
If a household with a water right from a multiple household pre-basin
well elects to connect to the CWU and to no longer divert water from the well,
ownership of the full amount per household adjudicated in the final decree shall
be conveyed to the CWU. If no specific
amount is defined in the final decree or determined pursuant to Subsection (B)
of 19.25.20.108 NMAC, the amount is presumed to be 0.5 afy
per household (or as limited by the maximum amount for all households combined
from the pre-basin well).
(4) Partial
amount for multiple household wells. If
a household with a water right from a multiple household pre-basin well elects
to connect to the CWU for indoor uses and to continue to divert a portion of
its water right from the well for outdoor or other adjudicated uses only, the
household shall convey ownership of 0.3 afy to the
CWU, as follows:
(a) A household with an adjudicated water
right of 0.4 afy or greater shall convey ownership of
0.3 afy to the CWU.
(i) The
household may continue to divert the amount of the household’s remaining right
in the well for outdoor or other adjudicated uses only (limited by the maximum
amount for all households combined from the pre-basin well).
(ii) The well shall be metered and not
interconnected with the CWU water system.
(b) A household with an adjudicated water
right from a multiple household pre-basin well that does not define a specific
amount of water shall convey ownership of 0.3 afy to
the CWU.
(i) The household
may continue to divert up to 0.4 afy from the
pre-basin well for outdoor or other adjudicated uses only (limited by the
maximum amount for all households combined from the pre-basin well).
(ii) The amount that may be diverted may
exceed 0.4 afy per household based upon a
determination of greater historic beneficial use by the water master pursuant
to Subsection (B) of 19.25.20.108 NMAC, reduced by the total amount of the
water right conveyed to the CWU from the well.
(iii) The well shall be metered and not
interconnected with the CWU water system.
D. Subsequent conveyance of
ownership of the remaining amount to CWU. A household
that elected a partial conveyance of ownership may subsequently convey
ownership of the remaining amount of the domestic use water right to the
CWU. The CWU may change the point of
diversion, place and purpose of use to the CWU by application to the state
engineer.
[19.25.20.109 NMAC - N, 9/12/2017]
19.25.20.110 EXPEDITED MARKETING AND LEASING AND EXPEDITED
PERMIT PROCEEDINGS:
A. New Domestic Well Points of Diversion. Permits
for new groundwater points of diversion for domestic uses, including a permit
for a Section 72-12-1 well, may be issued provided:
(1) Water rights from within the same
hydrologic unit in the NPT basin are moved to the new groundwater point of
diversion in accordance with this rule;
(2) The priority and amount of the moved
rights shall be determined under state law and reflect reductions in amount to
account for historic supply; and
(3) Any permitted diversions shall cease
and the household shall connect to the county water utility as soon as water
service is available.
B. Expedited change of a valid, existing water right to a
Section 72-12-1 domestic well permit. The applicant for a new Section 72-12-1
domestic well permit or the owner of an existing Section 72-12-1 domestic well
water right may apply to change the point of diversion, place and purpose of
use of a valid, existing water right, other than a Section 72-12-1 water right,
from the same hydrologic unit within the NPT basin into the Section 72-12-1
domestic well.
(1) Application form and content.
Applications shall be prepared on a form prescribed by the state
engineer. An application shall include
the following information:
(a) the name and
address of applicant,
(b) the
pertinent state engineer file number(s),
(c) the source
of water supply for the move-from point of diversion,
(d) the source
of water supply for the move-to point of diversion,
(e) the priority
date of the water right,
(f) the
diversion amount to be retired,
(g) the
consumptive use amount to be moved,
(h) the
move-from purpose of use,
(i) the legal description of the move-from place of use,
(j) the
location of the move-from point of diversion,
(k) the location
of move-to point of diversion, and
(l) other
information the state engineer deems necessary.
(2) Process.
Consistent with the issuance of a Section 72-12-1.1 domestic well permit
pursuant to Section 72-12-1.1 NMSA, public notice is not required nor is
protest allowed for an application for permit to change a valid, existing water
right to a Section 72-12-1 domestic well permit.
C. Expedited change of point of diversion, place and purpose
of use of groundwater rights for domestic use to the county water utility.
The CWU may file one or more applications
to the state engineer for permit to change the point of diversion, place and
purpose of use of groundwater rights for domestic use whose ownership is
conveyed to the CWU, including Section 72-12-1 domestic well water rights. The application may include multiple water
rights. The CWU may consumptively use the full amount of the water right
changed to the CWU.
(1) Application form and content.
Applications shall be prepared on a form prescribed by the state
engineer. An application shall include
the following information:
(a) the name and
address of applicant,
(b) the
pertinent state engineer file number(s),
(c) the source
of water supply for the move-from point of diversion,
(d) the source
of water supply for the move-to point of diversion,
(e) the
consumptive use amount to be moved,
(f) the
location of the move-to point of diversion, and
(g) other
information the state engineer deems necessary.
(2) Process. The
state engineer may adopt a generalized hydrologic analysis based upon the hydrologic
model setting out guidelines for the expedited processing of applications filed
pursuant to this Subsection.
(a) If the state engineer has adopted
such a generalized hydrologic analysis, and if the CWU agrees to the use of the
generalized hydrologic analysis in the review of the application, then the
state engineer shall expedite the processing of the application as provided in
the generalized hydrologic analysis.
(b) If the state engineer does not adopt
such a generalized hydrologic analysis, or if the CWU does not agree to the use
of the generalized hydrologic analysis, then notice
of the application shall be published as provided under 19.26.2.12 and
19.27.1.30 NMAC, except that only the OSE file number or subfile
number of the move-from water rights need be provided in the notice of the
application. The notice shall provide
that the full legal description of the water rights being moved is available in
the final decree posted on the state engineer’s website and available in the
district office.
D. Water
rights served by an acequia or community ditch may
not be moved under this Section.
[19.25.20.110 NMAC - N, 9/12/2017]
19.25.20.111 CONNECTION FUND:
A. An
owner of record of a water right from a well used for
domestic, commercial or industrial purposes that elects pursuant to the
settlement agreement to connect to the county water utility for water service
as soon as that service is available shall be entitled to payment from the
connection fund, as administered by Santa Fe county, for the expense of
connecting to the county water utility.
The county shall notify owners of record when service is available.
B. No
water right owner of record electing to connect to the county water utility
shall be required to cease use of their well and connect to the county water
utility until such expenses have been paid by the connection fund or other
third party.
C. If
service is not available to an owner that elected to connect because Santa Fe county determines that the expense of connection exceeds the
allowed connection expenses, the owner may pay the additional expenses so that
the expenses of connection will be covered and service made available.
[19.25.20.111 NMAC - N, 9/12/2017]
19.25.20.112 DIVERSION, USE, AND ADMINISTRATION OF SURFACE WATER AND
GROUNDWATER BY PUEBLOS: Diversion,
use, and administration of
surface water and groundwater by the Pueblos under this rule shall be subject
to, and in accordance with, the settlement agreement, the PFD and the final
decree.
A. General principles.
(1) The Pueblos have decreed first
priority water rights to consumptively use the surface and groundwater of the
NPT basin for agricultural, community, domestic, livestock, commercial or
industrial purposes in the amounts defined in the partial final decree. The Pueblos’ first priority rights are
designated as existing basin use rights or future basin use rights. The
Pueblos’ first priority rights are not subject to forfeiture, abandonment or
loss by non-use.
(2) A Pueblo may lease, for any term up
to 99 years, any portion of its first priority rights to another Pueblo or
another water user for use within the NPT basin.
(3) For agricultural uses of a Pueblo’s
first priority rights, the amount of water shall not exceed 4.65 AFY per acre
diverted by the ditch at the point of diversion from the surface source of
water (PDR), or 3.35 AFY per acre delivered to the farm headgate
or diverted at the well head (FDR), or a CIR of 1.84 AFY per acre, whichever is
less.
(4) For non-agricultural uses, the
consumptive use amount shall be deemed to be equal to the amount of the
diversion. The diversion amount shall
not exceed the consumptive use amount unless a return flow plan is approved by
the state engineer.
(5) The provision of offset water by a
Pueblo shall not constitute use of that Pueblo’s first priority rights.
B. First
priority rights: existing basin use
rights.
(1) The current points of diversion,
purposes and places of use of the Pueblos’ existing basin use rights are set
out in appendices one through four of the partial final decree. For the
purposes of administering the mitigation fund, the exercise by the Pueblos of
their existing basin use rights for the purposes and at the points of diversion
and places of use set out in the PFD shall be presumed to not impair non-Pueblo
groundwater rights.
(2) If a Pueblo consumes water in excess
of the quantity designated in the PFD as the Pueblo’s existing basin use
rights, the excess consumption shall be deemed to be an exercise of that
Pueblo’s available supplemental or future basin use rights.
(3) No notice or other administrative
process is required for the Pueblos to use water under such rights for the
purposes and at the points of diversion and places of use set out in appendices
one through four of the PFD.
C. First priority rights:
future basin use rights on Pueblo land.
(1) Community, domestic and livestock uses.
(a) A Pueblo may exercise its future
basin use rights to divert and consumptively use groundwater on that Pueblo’s
lands for new community or domestic uses by Pueblo members or their households
or livestock uses.
(b) Surface water may be diverted and
used for such uses subject to the provisions in section 4 of the settlement
agreement.
(c) The owner of record of a non-Pueblo groundwater
right that suffers impairment as a result of a Pueblo’s exercise of its future
basin use right for new community, domestic and livestock uses may seek
reimbursement from the mitigation fund for the cost of mitigating the
impairment in accordance with 19.25.20.118 NMAC.
(2) Agricultural
uses from loss of section 4 protection for non-Pueblo agricultural uses.
(a) A Pueblo may exercise its future
basin use rights to divert and consumptively use surface or groundwater on that
Pueblo’s land for new agricultural uses to the extent that non-Pueblo
agricultural water rights are determined to be no longer eligible for section 4
protection under 19.25.20.122 NMAC.
(b) Any increase in a Pueblo’s exercise
of future basin use rights for agricultural uses implemented pursuant to this
paragraph shall divert water from the same tributary from which water was
diverted to irrigate the non-Pueblo water rights acreage that is no longer
eligible for section 4 protection.
(3) Commercial
and industrial uses and other new agricultural uses.
(a) A Pueblo may exercise its future
basin use rights to divert and consumptively use surface or groundwater on that
Pueblo’s land for new commercial or industrial uses or new agricultural uses on
that Pueblo’s land in addition to those described above at Subparagraph a of
Paragraph 2 of Subsection C of 19.25.20.112 NMAC.
(b) The owner of record of a non-Pueblo
groundwater right that suffers impairment as a result of the Pueblo’s exercise
of its future basin use rights for new commercial, industrial or other
agricultural uses may seek reimbursement from the mitigation fund for the cost
of mitigating the impairment in accordance with 19.25.20.118 NMAC.
(c) The Pueblo shall offset any
interference with non-Pueblo surface water rights caused by the new use in an
amount determined by the water master in accordance with 19.25.20.115 NMAC.
(d) Non-Pueblo water rights eligible for
section 4 protection shall not be curtailed to provide water for the new
commercial, industrial or other agricultural use under Pueblo alternative
administration.
D. Reserved
water rights. The reserved water
rights of the Pueblo of Nambé may be exercised in the
NPT basin provided that:
(1) The exercise shall not impair Pueblo
or non-Pueblo water rights,
(2) Non-Pueblo water rights shall not be
curtailed to provide water for the exercise of these rights, nor shall the
exercise of these rights be curtailed under priority administration or Pueblo
alternative administration.
(3) Any interference with any surface
water rights resulting from the use of the reserved water rights of the Pueblo
of Nambé shall be offset by the United States or the
regional water authority in an amount determined by the state engineer in
accordance with 19.25.20.115 NMAC.
E. Supplemental Pueblo rights.
(1) Until alternative water is available
for delivery to the Pueblo of Pojoaque, the Pueblo of Pojoaque has the right to
divert the entirety of its supplemental Pueblo rights from wells located on
Pueblo of Pojoaque lands. The Pueblo shall not divert its supplemental Pueblo
rights to the extent alternative water is available for Pueblo use from the
regional water system.
(2) Until alternative water is available
for delivery to the Pueblo of Pojoaque, the Pueblo of Pojoaque and the Pueblo
of San Ildefonso shall maintain in effect a forbearance agreement for the
exercise of at least 475 AFY of the Pueblo of San Ildefonso’s first priority
rights. During the tenure of the
forbearance agreement the Pueblo of San Ildefonso shall forgo the exercise of
475 AFY of its first priority rights in accordance with the terms of the
settlement agreement.
(3) Until alternative water is available
for delivery to the Pueblo of Pojoaque, the Pueblo may divert all or a part of
its supplemental Pueblo rights from surface water allocated to the Pueblos and
released from Nambé reservoir, provided the other
Pueblos and the Pojoaque Valley irrigation district agree after consultation
with the United States and the United States bureau of reclamation.
(4) The owner of record of any non-Pueblo
groundwater right that suffers impairment as a result of the Pueblo of
Pojoaque’s exercise of its supplemental Pueblo rights may seek reimbursement
from the mitigation fund for the cost of mitigating the impairment in
accordance with 19.25.20.118 NMAC.
F. Water rights acquired under state law.
(1) A Pueblo may acquire water rights in
addition to the rights set forth in the PFD in accordance with, and subject to,
state law and regulation. These rights
shall be subject to priority administration in accordance with state law, and
shall be eligible for section 4 protection.
(2) Water rights acquired by the Pueblos
under state law after March 21, 2016 by or for the benefit of a Pueblo shall
not be subject to forfeiture, abandonment or loss by non-use as long as the
title to the water rights remains in the Pueblo or the United States acting as
trustee for the Pueblo.
[19.25.20.112 NMAC - N, 9/12/2017]
19.25.20.113 PUEBLO REPORTING OF PUEBLOS’ USES OF
WATER UNDER THEIR FIRST PRIORITY RIGHTS; NOTICE OF OTHER PROPOSED ACTIONS.
A. Annual reports of anticipated uses.
(1) By
December 31 of each year, each Pueblo shall submit to the water master a report
on its anticipated uses of water under its first priority rights from
groundwater for the next calendar year.
By March first of each year, each Pueblo shall submit to the water
master a report on its anticipated uses of water under its first priority rights
from surface water for that calendar year.
These reports on anticipated uses shall include the anticipated annual
diversion and consumptive use amounts, points of diversion, and purposes and
places of use of the Pueblos’ first priority rights for each anticipated use
for the calendar year.
(2) Pueblo lands intended to be irrigated
shall be reported by the Pueblos in their annual reports on anticipated uses.
(3) For purposes of administration, the
anticipated diversion and consumptive use amounts, points of diversion, and
purposes and places of use of the Pueblo of Pojoaque’s supplemental Pueblo
rights for the next calendar year shall also be reported to the water master by
December 31 and March first each year in the Pueblo’s reports on anticipated uses.
B. Notice of proposed
actions.
A Pueblo
intending to take the following actions shall advise the water master, in
writing, of any such proposed action at least 60 days in advance of
implementing the proposed action.
(1) any change in the point of diversion,
place or purpose of use of existing basin use rights of a Pueblo on that
Pueblo’s land from those set out in appendices one through four of the PFD; or
(2) any new or
changed exercise of Pueblo future basin use water rights on that Pueblo’s lands;
or
(3) any change
in the point of diversion, place or purpose of use of water rights acquired
under state law on that Pueblo’s land.
[19.25.20.113 NMAC - N, 9/12/2017]
19.25.20.114 CHANGES TO POINT OF DIVERSION, PURPOSE
OR PLACE OF USE OF PUEBLO WATER RIGHTS ON THAT PUEBLO’S LANDS:
A. A
Pueblo may change the point of diversion, purpose or place of use of its first
priority water rights for use on that Pueblo’s land from the uses set out in appendices one through four of
the PFD as provided below.
(1) Prior consultation with the state
engineer or the water master is not required for such changes.
(2) Changes shall be reported to the
water master in the annual report of anticipated uses or at least 60 days prior
to making any such change.
(3) After receiving the report, the water
master shall determine whether any change in use will impair non-Pueblo
groundwater rights in accordance with 19.25.20.116 NMAC.
(4) The owners of record of any such
rights may seek reimbursement from the mitigation fund for the cost of
mitigating the impairment in accordance with 19.25.20.118 NMAC.
(5) A Pueblo making a change in the
exercise of its future basin use rights shall offset any resulting interference
with non-Pueblo surface water rights in an amount determined by the water
master in accordance with 19.25.20.115 NMAC.
(6) Non-Pueblo water rights eligible for
section 4 protection shall not be curtailed to provide water for changes to the
uses of water under future basin use rights for new commercial, industrial or
agricultural uses under Pueblo alternative administration.
(7) Future basin use rights for domestic,
community or livestock uses may not be changed.
A Pueblo discontinuing uses of water under such rights may make new uses
of water under its future basin use rights.
B. A
Pueblo may change the point of diversion, purpose or place of use of any water
rights acquired under state law for use on that Pueblo’s land as provided
below.
(1) Changes shall be reported to the
water master at least 60 days prior to making any such change.
(2) The water master shall determine if
the proposed change will impair any Pueblo or non-Pueblo groundwater rights,
and consider any remedies proposed by the Pueblos to reduce the impacts
resulting from the proposed change on groundwater rights to below the threshold
for impairment.
(3) The water master shall determine if
the proposed use will cause interference with any Pueblo or non-Pueblo surface
water rights.
(4) An application shall be denied if the
proposed change will cause interference with any Pueblo or non-Pueblo surface
water rights or will impair any Pueblo or non-Pueblo groundwater rights and
remedies are not available to offset or mitigate the interference or to reduce
groundwater effects below the level of impairment.
[19.25.20.114 NMAC - N, 9/12/2017]
19.25.20.115 WATER
MASTER DETERMINATION OF INTERFERENCE AND OFFSETS TO SURFACE WATER RIGHTS FROM
EXERCISE OF PUEBLO WATER RIGHTS ON PUEBLO LANDS:
A. A Pueblo seeking
a new or changed use of water under Pueblo future basin use water rights on
that Pueblo’s lands shall advise the water master, in writing, of any such
proposed action at least 60 days before implementing the proposed action. Within 30 days of receiving notice of such a
proposed action (or report of anticipated uses of water) under 19.25.20.114
NMAC, the water master shall determine and advise the Pueblo and other affected
Pueblos and owners of record whether the proposed action interferes with Pueblo
surface water rights or non-Pueblo surface water rights and the amount of any
offsets that may be required to avoid interference. In making these determinations, the water
master shall use the hydrologic model developed by the state of New Mexico and
the United States.
B. A Pueblo whose
proposed action is determined to cause interference shall offset the
interference in the amount determined by the water master. Prior to implementing the proposed action,
the Pueblo causing the interference shall notify the water master how it will
offset any interference. Within 10 days
of receiving such notification, the water master shall notify that Pueblo and
any affected owners of record and other affected Pueblos whether the proposed
actions are sufficient to offset any interference. The Pueblo shall not
implement the proposed action until the water master determines that the amount
of the offset and the delivery method are sufficient to offset any
interference.
C. The water master
may work with the affected parties to resolve such matters either formally or
informally and may discuss matters with one or more affected parties without
the need to have all parties present.
D. If the hydrologic record after
implementation of the proposed action does not support the water master’s
determination of interference and required offsets, an affected Pueblo or water
right owner of record may request modification of the offset amounts. The Pueblo implementing the proposed action
shall make the previously determined offsets until such time as the water
master determines that a different amount is appropriate.
E. Provision of
offset water by a Pueblo to avoid interference shall not constitute use of
water under the Pueblo’s first priority water rights. The Pueblos shall offset interference with
Pueblo surface water rights and non-Pueblo surface water rights entitled to
section 4 protection resulting from a Pueblo’s
provision of offset water.
[19.25.20.115 NMAC - N, 9/12/2017]
19.25.20.116 WATER MASTER DETERMINATION OF IMPAIRMENT
TO GROUNDWATER RIGHTS FROM EXERCISE OF PUEBLO WATER RIGHTS ON PUEBLO LANDS:
A. Within 60 days of receiving notice of a
proposed action (or report of anticipated uses of water) under 19.25.20.114
NMAC, the water master shall
determine if any non-Pueblo groundwater rights will be impaired by a new use or
change in use of water under Pueblo water rights on Pueblo lands. In
making these determinations, the water master shall utilize the hydrologic
model developed by the state of New Mexico and the United States.
B. Notice
of any projected impairment shall be mailed to the affected owner of record by
certified mail. The notice of impairment
shall include a description of the factual or technical basis for the
determination, and any recommended mitigation action such as drilling a
replacement well or obtaining an alternate water supply. The water master shall post a notice of all
projected impairments on the office of the state engineer’s website, together
with the reports on anticipated uses of water submitted by the Pueblos. Notice of all projected impairments shall
also be mailed to the Governor of each Pueblo.
C. An owner of record that is not identified as being impaired by
the uses identified in the Pueblos’ reports on anticipated uses of water may
within 60 days of the posting of the water master’s notice of projected
impairments on the office of the state engineer’s website request in writing a
hearing before the state engineer to demonstrate that their groundwater rights
will be impaired by the Pueblos’ use of their first priority water rights and
may seek reimbursement for the cost of mitigating the impairment from the
mitigation fund in accordance with 19.25.20.118 NMAC.
D. The water master may identify
owners of record that will be impaired in addition to those identified pursuant
to Subsection A of this Section. The
water master shall notify any additional affected owners of record and Pueblos
in accordance with the provisions of this Section. Owners of record of water rights that are
identified pursuant to this Subsection may seek reimbursement for the cost of
mitigating the impairment from the mitigation fund in accordance with
19.25.20.118 NMAC.
[19.25.20.116 NMAC - N, 9/12/2017]
19.25.20.117 CHANGES
TO POINT OF DIVERSION, PURPOSE OR PLACE OF USE OF PUEBLO WATER RIGHTS OR NEW
EXERCISES OFF THAT PUEBLO’S LANDS:
A. By application to the state engineer, a Pueblo may
change the point of diversion, purpose or place of use of its first priority
water rights, including a lease of such rights to non-Pueblos, to a point of
diversion, place or purpose of use off that Pueblo’s lands within the NPT
basin.
(1) Applications to the state engineer
for use of Pueblo first priority water rights off that Pueblo’s lands shall be
governed by applicable statutory provisions and administrative rules.
(2) The water master shall determine if
any Pueblo or non-Pueblo groundwater rights will be impaired by the granting of
an application, and consider any remedies proposed by the Pueblos to reduce
impacts on groundwater rights below the threshold for impairment.
(3) An application shall be denied if the
proposed change will impair Pueblo or non-Pueblo water rights and remedies are
not available to reduce groundwater effects below the level of impairment.
(4) The exercise of a Pueblo’s first
priority water rights on the lands of another Pueblo is not contrary to the
conservation of water within the state or detrimental to the public welfare of
the state. The exercise of a Pueblo’s
first priority water rights on non-Pueblo lands, in and of itself, is not
contrary to the conservation of water in the state or detrimental to the public
welfare of the state.
(5) An approval of a proposed change to a
point of diversion, purpose or place of use off a Pueblo’s land shall be conditioned
to require offsets to avoid interference with Pueblo surface water rights or
non-Pueblo surface water rights entitled to section 4 protection.
(6) Notice
of the approval or denial of an application, and any required offsets, shall be
mailed to the Pueblo tribal council or governor by certified mail, and posted
on the state engineer’s website.
(7) Non-Pueblo water rights eligible for
section 4 protection shall not be curtailed to provide water for the new or
changed exercise of future basin use rights under Pueblo alternative
administration.
B. Applications
to the state engineer for use of a Pueblo’s state law water rights off that
Pueblo’s lands shall be governed by applicable statutes and administrative
rules.
[19.25.20.117 NMAC - N, 9/12/2017]
19.25.20.118 MITIGATION FUND:
A. The
New Mexico finance authority shall administer the mitigation fund. The unavailability of funds shall not affect
the rights of the Pueblos to utilize their water rights.
B. Money
in the mitigation fund may only be expended to mitigate the effects of
impairment to non-Pueblo groundwater rights as determined in accordance with
19.25.20.116 NMAC, including reimbursement to non-Pueblo water rights owners of
record for the cost to drill a replacement well or to obtain an alternative
water supply.
C. An
owner of record that is eligible for reimbursement from the mitigation fund
pursuant to 19.25.20.116 NMAC may request reimbursement from the mitigation
fund for the costs of mitigating the impairment. To request reimbursement, an owner of record
shall:
(1) Within 30 days of the receipt of the
notice of impairment or a favorable decision pursuant to 19.25.20.116 NMAC,
notify the state engineer in writing of their intent to request reimbursement;
and
(2) Within 90 days of the notification to
the state engineer of their intent to request reimbursement, submit to the
state engineer a proposal for mitigation of the impairment and estimated cost
of the mitigation with supporting documentation. The state engineer may grant an extension of
time to submit a mitigation proposal and estimated cost for good cause
shown. The state engineer may request
additional information as needed.
D. Within
60 days of receipt of the mitigation proposal and supporting documentation, the
state engineer shall approve or disapprove of the mitigation proposal and
estimated cost, and notify the owner of record of the determination by
certified mail. The state engineer may
rely on the documentation submitted by the owner of record or other information
available to the office of the state engineer.
If the state engineer disapproves a mitigation proposal or cost
estimate, the owner of record may request a hearing within 30 days of the
notice of disapproval.
E. Within
90 days of completion of an approved mitigation proposal, the owner of record
shall submit an accounting of the amount paid by the owner to mitigate the
impairment of their water right.
F. Within
30 days of receipt of the accounting, the state engineer shall direct the New
Mexico finance authority to reimburse the owner of record for the mitigation
costs, and notify the owner of record of the amount of reimbursement by
certified mail. The state engineer may
limit the reimbursement to the amount of the approved estimate. An owner of
record that is aggrieved by the state engineer’s determination the
amount of reimbursement from the mitigation fund may request a hearing within
30 days of the notice of the amount of reimbursement.
G. The New Mexico finance authority shall make expenditures
from the fund in accordance with this Section and to pay for the
finance authority’s reasonable costs of administering the fund.
H. Payments from the mitigation fund shall be contingent
upon the New Mexico finance authority receiving sufficient appropriations. Nothing in this rule establishes or creates
any liability or responsibility on the part of the state to pay mitigation
costs for impairment to non-Pueblo groundwater right owners of record as a
result of new or changed Pueblo uses of water from any source other than the
mitigation fund, nor shall the state have any liability or responsibility to
make any payments if the balance in the fund is insufficient to cover those
costs.
I. If the New Mexico finance authority
determines that the mitigation fund balance is insufficient to reimburse the
amount required to mitigate the effects of an
impairment, the finance authority shall promptly notify that water right owner
of record and the state engineer.
Reimbursement shall be paid if and when sufficient amounts are available
in the fund, subject to the provisions of this Section.
J. Money remaining in the fund at the end of any fiscal year shall not revert to the general
fund but shall accrue to the
mitigation fund and shall be used solely for the purposes set forth in this
Section.
[19.25.20.118 NMAC - N, 9/12/2017]
19.25.20.119 PRIORITY ADMINISTRATION:
A. The
water master may implement priority administration in the NPT water master
district. Priority administration may be
initiated by the state engineer as a result of the state engineer’s independent
determination that priority administration is necessary, as provided by
19.25.13.43 NMAC, and in response to a request for
priority administration by a water right owner of record, Pueblo, the United
States as trustee for the Pueblos, or the interstate stream commission.
B. The
forms of priority administration applicable in the NPT are described in
Subsection C of 19.25.13.7 NMAC, which include direct flow administration,
storage water administration, depletion limit administration, and alternative
administration. Depletion limit
administration and alternative administration are the two forms of administration
applicable when the exercise of groundwater rights is causing a surface water
owner of record to not receive the water to which the surface water right owner
of record is entitled.
C. Sections
2.4.4.5, 3.1.7.2 and 4 of the settlement agreement constitute Pueblo
alternative administration that has been accepted by the state engineer as
between the Pueblos’ first priority rights and the water rights of the
non-Pueblo settlement parties. Section 4.1.2 of the settlement agreement
constitutes alternative administration that has been accepted by the state
engineer of the Pueblo of Tesuque’s existing basin use rights.
D. Non-settlement
parties’ water rights shall only be curtailed under Pueblo alternative
administration to the extent such curtailment would occur without the
settlement agreement.
E. Non-settlement
parties seeking priority administration shall have the same rights and benefits
that would be available without the settlement agreement.
[19.25.20.119 NMAC - N, 9/12/2017]
19.25.20.120 ESSENTIAL INDOOR HOUSEHOLD USES NOT
SUBJECT TO CURTAILMENT: Essential indoor household uses from
domestic wells shall not be curtailed under priority or Pueblo alternative
administration. Essential indoor
household uses include drinking, cooking, indoor cleaning, sanitary, and
cooling purposes, and exclude all uses made outside of a building.
[19.25.20.120 NMAC - N, 9/12/2017]
19.25.20.121 ALTERNATIVE ADMINISTRATION OF THE PUEBLO
OF TESUQUE’S EXISTING BASIN USE RIGHTS: Under
alternative administration of the first priority of the Pueblo of Tesuque’s existing
basin use rights, the curtailment of non-Pueblo surface water rights entitled
to protection under section 4 of the settlement agreement whose points of
diversion on the Rio Tesuque are upstream from the Pueblo of Tesuque’s southern
boundary (“upstream acequias”), shall be limited to
the extent necessary to provide a diversion amount by the Pueblo of Tesuque
from the Rio Tesuque for irrigation of 71 acres of Pueblo land (71 acres x 4.65
AFA/Y=330.15 AFY). To ensure that the
Pueblo of Tesuque receives the 330.15 AFY, the Pueblo of Tesuque and the
upstream acequias have agreed that:
A. Upstream acequias may
proceed with lawful diversions if, for a period of more than 48 hours:
(1) the USGS 08302500 Tesuque Creek
Above Diversions gage indicates a flow of 3 cubic feet per second (“cfs”) or more, or
(2) the USGS
No.08308050 Rio Tesuque Below Diversions gage, at or near the Pueblo’s southern
boundary, indicates a flow of 1.5 cfs or more.
B. Upstream acequias shall
reduce or cease their diversions as specified by the water master if the USGS
08302500 Tesuque Creek Above Diversions gage indicates a flow of less than 3 cfs and the USGS No. 08308050
Rio Tesuque Below Diversions gage, at or near the Pueblo’s southern boundary
indicates a flow of less than 1.5 cfs but more than
0.8 cfs.
C. Upstream
acequias will cease all diversions and will allow all
water in the Rio Tesuque to flow down to the Pueblo boundary if for a period of
48 hours, the USGS 08302500 Tesuque Creek Above Diversions gage indicates a flow
of less than 1.5 cfs, or the USGS No. 08308050 gage,
at or near the Pueblo’s southern boundary, indicates a flow of less than 0.8 cfs.
[19.25.20.121NMAC - N, 9/12/2017]
19.25.20.122 IDENTIFICATION AND REPORTING OF
NON-PUEBLO IRRIGATED ACREAGE WHICH MAY NO LONGER BE ELIGIBLE FOR SECTION 4 PROTECTION:
A. The
water master shall each year compile a list of non-Pueblo lands with surface
water irrigation rights that were not irrigated in the past calendar year and
that may no longer be eligible for section 4 protection.
B. The
list shall include the names and addresses of the current owners of record as
they are shown in subfile orders and the records of
the office of the state engineer, a description of the location and amount of
the non-irrigated acreage, and the number of consecutive years that the acreage
has not been irrigated.
C. This
list shall be made available for review on the state engineer’s website and at
the district VI office of the water rights division of the office of the state
engineer, and shall be provided to each Pueblo and the United States by July 1
of the following year.
D. After
four consecutive years of non-use, the water master shall provide written
notice to the owner of record that the water right may no longer be eligible
for section 4 protection if the water right is not put
to beneficial use within one year, subject to the exceptions described in
Subsection C of 19.25.20.123 NMAC.
E. If
the water right is not put to beneficial use for more than five consecutive
years the irrigation water right is no longer eligible for section 4
protection, unless the owner of the water right demonstrates that (1) such
non-use is due to circumstances beyond the control of the water right owner and
(2) that the water could not be placed to beneficial use by the owner’s
diligent efforts.
[19.25.20.122 NMAC - N, 9/12/2017]
19.25.20.123 VOLUNTARY ALTERNATIVE ADMINISTRATION:
A. In
addition to Pueblo alternative administration, voluntary alternative administration may be accepted by the water
master if the criteria below are met.
Voluntary alternative administration may include shortage sharing, such
as, but not limited to, percentage division or pro rata allocation, rotation of
water use, and reduced diversions. The
owners of record of administrable water rights subject to priority
administration may request that the water master implement a voluntary form of
alternative administration by submitting a written plan to the water master
that includes:
(1) an agreement
by the owners of record to the terms and conditions of the plan;
(2) the name,
address and phone number, and electronic mail address, if applicable, of the
person designated as the contact person for the owners of record, or in the
case of an acequia, the mayordomo
of the ditch;
(3) a description of the water rights
included in the plan, the proposed operation of the plan, the specific steps
required of the water master to administer the plan, and requirements for
reporting the progress of the plan to the water master; and
(4) a demonstration,
through accurate analysis using analytic tools acceptable to the water master,
that the implementation of the plan will:
(a) economically
and satisfactorily apportion the
available water supply among owners of record who have agreed to the
alternative administration plan;
(b) not impair the administrable water rights of
owners of record who are not participating in, or have not agreed to, the
alternative administration plan;
(c) not be contrary to conservation of water in
the State; and
(d) not be
detrimental to the public welfare of the State.
B. The water master shall not implement an alternative
administration plan if:
(1) other owners
of record of administrable water rights that may be affected by the alternative
administration plan object to its implementation, unless the water master
determines that the objection is without merit;
(2) one or more
owners of record of the administrable water rights subject to the plan rescinds
his agreement in writing; or
(3) the water
master cannot adequately administer or supervise the alternative administration
plan in a manner that ensures that the plan will:
(a) economically
and satisfactorily apportion the
available water supply among owners of record who have agreed to the
alternative administration plan;
(b) not impair the administrable water rights of
owners of record who are not participating in, or have not agreed to, the
alternative administration plan;
(c) not be contrary to conservation of water in
the State; and
(d) not be
detrimental to the public welfare of the State.
C. Periods
of time during which non-Pueblo acreage with an appurtenant water right is not
irrigated because of the implementation of an alternative administration plan
shall not be counted as part of any period of non-use that may support a
determination that the water right is no longer eligible for protection under
section 4.
D. Nothing
in this Section prevents the water master from exercising his authority and
duties set forth in Section 19.25.20.101 NMAC.
[19.25.20.123 NMAC - N, 9/12/2017]
19.25.20.124 APPORTIONMENT OF WATER BY ACEQUIAS: Upon notice to the water master of an agreement between acequias taking water from the same source or river for the
apportionment and distribution of water for their respective ditches in
accordance with Section 73-2-47 NMSA 1978, the water master may recognize the
agreement as a form of voluntary alternative administration under this rule.
[19.25.20.124 NMAC - N, 9/12/2017]
19.25.20.125 ALLOCATION OF WATER BY THE BUREAU OF
RECLAMATION, POJOAQUE VALLEY IRRIGATION DISTRICT: Nothing in this rule shall be construed as an assertion by the state
engineer of jurisdiction over the process used by the United States bureau of
reclamation, the Pojoaque Valley irrigation district, and the Pueblos to
allocate storage water prior to release from Nambé
reservoir to members of the Pojoaque Valley irrigation district and the
Pueblos.
[19.25.20.125 NMAC - N, 9/12/2017]
HISTORY
OF 19.25.20 NMAC: [RESERVED]