TITLE
19 NATURAL RESOURCES AND
WILDLIFE
CHAPTER 26 SURFACE
WATER
PART 2 ADMINISTRATION
19.26.2.1 ISSUING
AGENCY: Office of the State Engineer.
[19.26.2.1 NMAC - N,
1/31/2005]
19.26.2.2 SCOPE: The
administration of all natural waters flowing in streams and watercourses, and
supplemental groundwater, within the limits of the state of New Mexico.
[19.26.2.2 NMAC - N,
1/31/2005]
19.26.2.3 STATUTORY
AUTHORITY: Chapter 72, Articles 1, 2, 5, 6, 7 and 9,
NMSA. Section 72-1-1 NMSA provides that
all natural waters flowing in streams and water courses belong to the public
and are subject to appropriation for beneficial use. Section 72-2-1 NMSA gives the state engineer
general supervision of waters of the state and of the measurement, appropriation
and distribution thereof and such other duties as required. Section 72-2-8 NMSA gives the state engineer
authority to adopt regulations and codes to implement and enforce any provision
of any law administered by him and also provides the state engineer with
authority to issue orders necessary to implement his decisions and to aid him
in the accomplishment of his duties.
Section 72-2-9 NMSA gives the state engineer authority over and
supervision of the apportionment of water in this state according to the
licenses issued by him and his predecessors and the adjudications of the
courts. Section 72-9-1 NMSA gives the
state engineer authority to regulate reservoirs, canals, pipelines or other
works and the rights of the owners thereof.
Nothing in these rules shall be construed so as to limit the state
engineer's authority to take lawful alternative or additional actions relating
to the management of surface water resources.
[19.26.2.3 NMAC - N,
1/31/2005]
19.26.2.4 DURATION: Permanent.
[19.26.2.4 NMAC - N,
1/31/2005]
19.26.2.5 EFFECTIVE
DATE:
January 31, 2005, unless a later date is cited at the end of a section.
[19.26.2.5 NMAC - N,
1/31/2005]
19.26.2.6 OBJECTIVE: To establish
standards and procedures implementing the duties of the state engineer as set
forth by statute and further defined by judicial decisions to supervise and
administer the appropriation, allocation, and use of surface water and
supplemental groundwater of the state.
[19.26.2.6 NMAC - N,
1/31/2005]
19.26.2.7 DEFINITIONS: Unless defined
below or in a specific section of these regulations, all other words used
herein shall be given their customary and accepted meaning.
A. Abandonment: The loss of a water right based on the nonuse
of water and the intent by the water right owner to permanently relinquish or
forsake the right.
B. Acequia: An irrigation ditch managed and maintained by
the local community it serves. Acequias
and community ditch associations are considered legal subdivisions of the state
pursuant to Section 73-2-28 NMSA.
C. Acre-foot: A volume of water sufficient to cover one (1)
acre of land one (1) foot deep. One
acre-foot is equal to 43,560 cubic feet or 325,851 gallons.
D. Beneficial use: The direct use or storage and use of water by
man for a beneficial purpose including, but not limited to, agricultural,
municipal, commercial, industrial, domestic, livestock, fish and wildlife, and
recreational uses. Beneficial use shall
be the basis, the measure, and the limit of a water right.
E. Certificate of construction: A document issued by the state engineer which
recognizes that construction of the works has been in accordance with the
permit.
F. Community ditch: An irrigation ditch managed and maintained by
the local community it serves. Acequias
and community ditch associations are considered legal subdivisions of the state
pursuant to Section 73-2-28 NMSA.
G. 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 consumptive
irrigation requirement (CIR) may be numerically determined by subtracting effective
rainfall from the consumptive use.
H. Consumptive use: The quantity of water consumed during the
application of water to beneficial use.
The quantity of water beneficially consumed depends on the requirements
of a particular enterprise and how it applies and consumes the water. The authorized diversion of water that is not
beneficially consumed in the course of water use is not part of the allowable
consumptive use allocation of the water right.
The consumptive use of water by a crop (evapotranspiration) does not
include depletions such as evaporation from canals, ditches or irrigated fields
during surface application, transpiration by vegetation along ditches,
evaporation or leakage from irrigation water pipes, evaporation of sprinkler
spray and drift losses, and evaporation of runoff and seepage from irrigated
fields.
I. Dam: A man-made barrier constructed across a
watercourse or off-channel for the purpose of storage, control, or diversion of
water.
J. Effective rainfall: The average rainfall during the growing
period of a crop that becomes available to help meet the consumptive use of
water by the crop.
K. Duty of water (farm delivery
requirement): The average quantity
of water that is delivered on an annual basis 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 consumptive irrigation requirement of crops
grown on a farm. In practice, the farm
delivery requirement is estimated by dividing the crop irrigation requirement
by the irrigation efficiency.
L. Forty-year planning entity: A municipality, county, state university,
member-owned community water system, special water users’ association, or
public utility supplying water to a municipality or county which is allowed a
water use planning period of not to exceed forty years pursuant to Section
72-1-9 NMSA.
M. Headgate: A mechanism in a dam or ditch that controls
the flow of water through the outlet.
N. Hearing: An administrative proceeding on an order
entered by the state engineer, or the filing of an application, protest,
aggrieval or other pleading, in which parties may present evidence according to
the rules and procedures contained in 19.25.2 NMAC.
O. Historical supply: The average quantity of water historically
available from a specific source at the point of diversion to meet the farm
delivery requirement. Historical supply
is expressed as a percentage of the total farm delivery requirement.
P. Impoundment: Any man made or modified structure or
diversion works intended for the retention or detention of water, including but
not limited to livestock water tanks, sumps, spring boxes, subsurface
excavations, metal tanks, ponds and dams.
Q. Infiltration gallery: Constructed works laid in, adjacent to, or
below a streambed or spring source that intercepts surface water.
R. Irrigation efficiency: The portion of the duty of water, expressed
as a percentage, consumed to meet the crop irrigation requirement.
S. License: A document issued by the state engineer after
final proof of application of water to beneficial use has been filed and
inspection has been completed that confirms the extent of diversion and
beneficial use of water made in conformance with permit conditions.
T. Livestock: All domestic or domesticated animals that are
used or raised on a farm or ranch, including exotic animals in captivity and
includes horses, asses, mules, cattle, sheep, goats, swine, bison, poultry,
ostriches, emus, rheas, camelids and farmed cervidae. Livestock does not
include canine or feline animals.
U. Livestock water impoundment: Any impoundment used exclusively for watering
livestock.
V. Perennial stream: A stream or reach of a stream that flows
continuously throughout the year. Under
extreme conditions such as severe drought some streams considered perennial may
not contain water.
W. Permit: A document issued by the state engineer that
authorizes the diversion of water from a specific point of diversion, for a
particular beneficial use, and at a particular place of use, in accordance with
the conditions of approval. A permit
allows the permittee to develop a water right through the application of water
to beneficial use, in conformance with the permit’s conditions of approval. A
permit in itself does not constitute a water right.
X. Point of diversion: The location of constructed works where water
is diverted from a stream, watercourse, or well.
Y. Project diversion requirement or
off-farm diversion requirement: When
the source of water does not originate on the farm, the project diversion
requirement or off-farm diversion requirement is the average quantity of water
that is diverted from an off-farm source to satisfy the farm delivery
requirement for one calendar year.
Z. Proof of application of water to
beneficial use: A document filed
with the state engineer by a permittee demonstrating the actual beneficial use
to which water has been applied under a permit.
AA. Rate of diversion: The instantaneous measurement of water being
taken from a stream, watercourse, or well.
BB. Spring: A site where surface water flows freely from
the ground under natural conditions. The
flow at land surface may be perennial or intermittent in nature.
CC. Stream system: The surface waters of a river or stream and
all groundwater hydrologically connected to those surface waters.
DD. Surface water: Water found in any watercourse including
impoundments, ponds, lakes, reservoirs, springs, streams and rivers or flows
obtained from an infiltration gallery.
EE. Water right: The legal right to appropriate water for a
specific beneficial use. The elements of
a water right generally include owner, point of diversion, place of use,
purpose of use, priority date, amount of water, periods of use, and any other
element necessary to describe the right.
A permitted or declared right is considered to be a valid water right
only to the extent water has been legally placed to beneficial use.
FF. Watercourse: Any river, creek, arroyo, canyon, draw or wash,
or any other channel having definite banks and bed with visible evidence of the
flow of water.
[19.26.2.7 NMAC - N,
1/31/2005]
19.26.2.8 DECLARATION
OF A WATER RIGHT DEVELOPED PRIOR TO MARCH 19, 1907: All water
rights established by beneficial use in New Mexico prior to March 19, 1907,
were recognized and confirmed by the state constitution at the time of its
adoption. Any person, firm or
corporation claiming to be the owner of a water right established prior to
March 19, 1907, from any surface water source may file a declaration on a form
prescribed by the state engineer setting forth the history and continuity of
the beneficial use to which said water has been applied. A declaration may be accompanied by a map
prepared pursuant to 19.26.2.26 NMAC and may be accompanied by deeds, survey
plats, affidavits and other evidence tending to substantiate the claim. If such supporting documents are filed with
the state engineer, they will be filed together with the declaration. The declaration may be filed by the declarant
on his personal information and belief.
No declarations will be accepted for filing within any stream system
where an adjudication court has entered an order or decree that operates to bar
such claims.
A. Form - content: A declaration shall be filed on a form
prescribed by the state engineer. The
declaration shall include the following information: the name and address of the declarant, the
owner of the land on which the water is used, legal descriptions for the point
of diversion and the place of use, the purpose of use, quantity of water used,
periods of use, the date water was first applied to beneficial use and the
continuity thereof, and any other information deemed necessary by the state
engineer. The point of diversion shall be
described using latitude and longitude or the New Mexico state plane coordinate
system. The declarant shall sign the declaration before a notary.
B. Amended declaration: An amended declaration may be filed to
supplement the evidence substantiating the claim or to correct any clerical
errors in the initial declaration. An
amended declaration that changes the purpose of use or amount of water, or that
is filed after an application affecting the declared water right has been
filed, will only be accepted for filing if substantial and specific
documentation supporting the change(s) is filed with the amended
declaration. The state engineer will not
accept an amended declaration after an application affecting the declared
rights has been acted upon by the state engineer in accordance with Subsections
F and H of 19.26.2.12 NMAC or 19.25.2 NMAC.
An amended declaration may be accompanied by deeds, survey plats,
affidavits and other evidence to further substantiate the claim.
C. Filing fee: A fee of $10 must accompany a declaration,
with or without attachments. An amended
declaration requires a fee of $25 with or without attachments. After a declaration has been accepted for
filing, submission of any other document associated with the declaration, which
becomes a part of the permanent water right record, requires a fee of $5.00.
D. Action of the state engineer: Upon receipt of a declaration or amended
declaration a preliminary investigation may be performed by the state
engineer. If this preliminary investigation
reveals deficiencies in the declaration or amended declaration, the declaration
may be returned to the declarant. If the
declaration is accepted for filing by the state engineer, the acceptance does
not constitute validation of the right claimed.
The declaration may be recorded by the declarant in the office of the
county clerk of the county wherein the diversion works are located.
[19.26.2.8 NMAC - N,
1/31/2005]
19.26.2.9 NOTICE
OF INTENTION TO FILE APPLICATION FOR PERMIT TO APPROPRIATE SURFACE WATER: A notice of
intention to file an application for permit to appropriate surface water may be
filed for the purpose of establishing priority of application. The application shall be prepared and filed
within one year of the date of filing of the notice. A notice of intention to file an application
for permit to appropriate surface water, automatically expires at the end of
one year if an application as described in the notice of intention is not
filed.
A. Form - content: A notice of intention to file application for
permit to appropriate surface water shall be filed on a form prescribed by the
state engineer. A notice of intention
shall include the following information:
the name and address of the applicant, the use to which the water will
be applied, the amount of water required for the proposed use, legal
descriptions for the point of diversion and the place of use, the method of
conveyance, and the annual water use schedule.
The point of diversion shall be described using latitude and longitude
or the New Mexico state plane coordinate system. If a notice lacks any of this information, it
may be returned for completion.
B. Filing fee: A fee of $25 must accompany the notice of
intention to file an application.
C. Rejection of notice of intention: When the state engineer is of the opinion
that there is no unappropriated surface water available, the notice of
intention shall be rejected or refused.
[19.26.2.9 NMAC - N,
1/31/2005]
19.26.2.10 APPLICATION
FOR PERMIT TO APPROPRIATE SURFACE WATER: Any appropriation of surface water initiated
on or after March 19, 1907 requires a valid permit issued by the state
engineer. Any person, firm, corporation,
public or private, or any other entity intending to appropriate surface water
shall file an application on a form prescribed by the state engineer. Except where a notice of intention is filed,
the date of filing of an application for permit to appropriate establishes the
priority of application. Application
maps (see 19.26.2.25 NMAC), preliminary surveys, design data and additional
information shall be included with an application to provide all essential
facts relating to the request.
A. Form - content: An application to appropriate surface water shall
be filed on a form prescribed by the state engineer. The application shall include the following
information: the name and address of the
applicant, the proposed use, the annual diversion of water requested for the
proposed use, legal descriptions of the point of diversion and the place of
use, the method of conveyance, the annual diversion schedule, and other
information the state engineer may deem necessary. The point of diversion shall be described
using latitude and longitude or the New Mexico state plane coordinate system.
B. Filing fee: An application to appropriate surface water
shall be accompanied with filing fees as follows:
(1) $25 for a rate of
diversion amount not to exceed five (5) cubic feet of water per second;
(2) $25 plus $5 for each
additional cubic foot per second over five (5) cubic feet per second, unless
the appropriation is for power generation purposes and the amount of water
diverted is returned to the river bed in substantially undiminished quantity,
in which case, the filing fee shall be $25 plus $1 for each additional cubic
foot per second required;
(3) $10 for each one
thousand (1000) acre-feet, or fraction thereof, of storage capacity if the
request is primarily for storage of excess and flood water;
(4) For a canal or other
water conduit, $25 where the capacity does not exceed fifty (50) cubic feet of
water per second, and $10 for each additional fifty (50) cubic feet per second
or fraction thereof.
(5) Additional required
fees for examining plans and specifications for dams and for inspection of dam
sites are described in 19.25.12 NMAC.
[19.26.2.10 NMAC - N,
1/31/2005]
19.26.2.11 CHANGES
TO DECLARED, PERMITTED, LICENSED OR ADJUDICATED RIGHTS: Any change in
point of diversion, place of use, or purpose of use of declared, permitted,
licensed, or adjudicated surface water rights may be made only upon issuance of
a permit by the state engineer. The owner
of record of a water right must be the applicant or co-applicant on an
application. An access agreement shall
accompany an application if the applicant is not the owner of the land on which
a new point of diversion is proposed.
A. Application for permit to change
point of diversion: A permit from
the state engineer is required to change any point of diversion. A point of
diversion may be changed within a stream system without losing the priority of
the right if such change can be made without detriment to existing surface
water rights or impairment to existing ground water rights, and is not contrary
to the conservation of water within the state nor detrimental to the public
welfare of the state.
(1) Form - content: The owner of
record of a water right shall file an application on a form prescribed by the
state engineer. An application shall
include the following information: the
name and address of applicant, the pertinent state engineer file numbers, the
source of water supply for the move-from point of diversion, the source of
water supply for the move-to point of diversion, the priority date of the water
right, the diversion amount, the consumptive use amount, the purpose of use,
the reason for change, the legal description of the place of use, the location
of the present point of diversion, the location of proposed point of diversion,
and other information the state engineer deems necessary. The locations of the move-from and move-to points
of diversion shall be described using latitude and longitude or the New Mexico
state plane coordinate system. An application for a change in point of
diversion of a water right into or out of an acequia or community ditch shall
include the documentary evidence required by Subsection F of 19.26.2.11 NMAC.
(2) Filing fee: A fee of $100
must accompany each application.
B. Application for permit to change
place and/or purpose of use: A
permit from the state engineer is required to change the place and/or purpose of
use of all or any part of a water right.
If the applicant is not the landowner, written consent by the owner of
the land upon which water rights are appurtenant must accompany the
application. Water rights may be
transferred within a stream system without losing the priority of the right if
such change can be made without detriment to existing surface water rights or
impairment to existing ground water rights, and is not contrary to the
conservation of water within the state nor detrimental to the public welfare of
the state. For applications proposing to
change the purpose of use, only the consumptive use established and available
at the move-from location may be considered for transfer to the new purpose of
use. In the context of permits and
declarations, only that amount of water that has been legally placed to actual
beneficial use may be considered for a change in place and or purpose of use.
(1) Form - content: The owner of
record of a water right shall file an application on a form prescribed by the
state engineer. The application shall
include the following information: the name and address of applicant, the
pertinent state engineer file numbers, the source of water supply, the priority
date of the water right, the location of the point(s) of diversion, the present
diversion amount, the present consumptive use amount, the present purpose of
use, the reason for change, the legal description of the present place of use,
the proposed diversion amount, the proposed consumptive use amount, the
proposed purpose of use, the legal description of the proposed place of use and
other information the state engineer deems necessary. The point of diversion shall be described
using latitude and longitude or the New Mexico state plane coordinate
system. An application for a change in
place and/or purpose of use of a water right into or out of an acequia or
community ditch shall include the documentary evidence required by Subsection F
of 19.26.2.11 NMAC.
(2) Filing fee: A fee of $100
must accompany each application.
(3) Appurtenance: No irrigation
right shall be assigned or transferred apart from the land, and title to land
may not be transferred apart from appurtenant water rights, except in the
manner specifically provided in Sections 72-1-2, 72-5-22, and 72-5-23 NMSA.
C. Application for permit to drill and
use a well to supplement a surface water right: Within declared underground water basins an
application for a permit from the state engineer is required to drill a well
and use the groundwater to supplement any part of a surface water right. Surface water rights may be supplemented with
groundwater provided that groundwater is available for appropriation and such
change can be made without impairment to existing water rights, is not contrary
to conservation of water within the state, and is not detrimental to the public
welfare of the state. In the context of
declared, permitted, licensed, or adjudicated surface water rights, only that
amount of water that has been historically and legally placed to beneficial use
from the surface source may be supplemented with groundwater. In no event shall the combined diversion from
the surface source and supplemental well exceed the historical supply. Upon approval of a supplemental well, the
state engineer shall require metering and reporting of diversions from both
sources.
(1) Form - content: The owner of
record of a water right shall file an application on a form prescribed by the
state engineer. An application shall
include the following information: the name and address of applicant, the
pertinent state engineer file numbers, the source of surface water supply, the
priority date of the surface water right, the location of the surface water
point of diversion, the diversion amount, the consumptive use amount, the purpose of use, the legal
description of the place of use, the reason for the supplemental well, the
location of the proposed well, and other information the state engineer deems
necessary. The proposed supplemental
well shall be described using latitude and longitude or the New Mexico state
plane coordinate system. If an application
lacks any of this information, it may be returned to the applicant for completion.
(2) Filing fee: A fee of $100
must accompany an application.
(3) Emergency supplemental wells:
Emergency authorization to drill and use a well to supplement a primary
surface water rights is not authorized in statute and will not be considered.
D. Emergency change in point of
diversion, storage or use of an existing water right: Written authorization from the state engineer
is required for an emergency change in point of diversion, storage, or use of
water. Emergency authorization may be
requested upon the filing of an application and an affidavit showing that an
emergency exists in which the delay caused by awaiting publication or hearing
would result in crop loss or other serious economic loss. The state engineer may grant the
authorization if he determines, after preliminary review, that no foreseeable
detriment will occur to existing water rights of other ownership. Within thirty (30) days of an authorization
granted by the state engineer, if notice of the application has not already
been published, the applicant shall publish the notice in accordance with
19.26.2.12 NMAC. The emergency
authorization shall continue in effect as conditioned in the emergency
authorization or until the state engineer enters a final decision on the
application, whichever occurs first. The
emergency authorization will be revoked upon violation of any condition of the
emergency authorization. Issuance of the
authorization does not obligate favorable consideration by the state engineer
on the pending application. A request
for an emergency change in the point of diversion or place or purpose of use of
a water right into or out of an acequia or community ditch shall include the
documentary evidence required by Subsection F of 19.26.2.11 NMAC.
E. Return flow credit: Surface water return flow is that percentage
of the total diversion of surface water that has been applied to beneficial use
pursuant to a water right or permit and returned to the same surface water stream
from which it was appropriated. In no
instance may a return flow credit allow an increase in the authorized
consumptive use amount, impair existing water rights, be contrary to the
conservation of water within the state, or be detrimental to the public welfare
of the state. A permit from the state
engineer is required to receive return flow credit. An application for return flow shall be
accompanied by a return flow plan. Upon
review of a return flow application and plan, the state engineer may request
additional information, correction, clarification, modification, or other
revision as deemed necessary. The
permittee has the final burden of demonstrating return flow. The state engineer may approve an application
for return flow if the permitted, licensed, or adjudicated consumptive use
amount is not increased, the return flow does not violate any applicable
standards, regulations, or permits promulgated pursuant to the New Mexico Water
Quality Act, or the federal Clean Water Act, and the requirements of 19.26.2.12
NMAC have been satisfied.
(1) Form - content: An
application shall be filed on a form prescribed by the state engineer. An application shall include the following
information: the name and address of applicant, the pertinent state engineer
file numbers, the source of water supply, the priority date of the water right,
the location of point of diversion, the authorized diversion amount, the
authorized consumptive use amount, the purpose of use, the legal description of
the place of use, the proposed diversion amount, the location of the return
flow back to the source, the measurement technique employed to quantify the
total diversion, the measurement technique employed to quantify the return
flow, proof of any applicable New Mexico environment department or other
discharge permits, and other information the state engineer deems
necessary. The location of the point of
diversion and the location of return flow back to the source shall be described
using latitude and longitude or the New Mexico state plane coordinate system.
(2) Filing fee: A fee of $100
must accompany an application.
(3) Return flow plan: The
permittee shall demonstrate any return flow claimed by submitting a return flow
plan acceptable to the state engineer.
The actual timing and amount of return flows shall be demonstrated by
acceptable field measurement. The plan
shall describe the hydrologic conditions and must substantiate the return flow
sought by a method acceptable to the state engineer.
(4) Monitoring, reporting and continuing jurisdiction: All approved permits for return flow
credit shall require monitoring and annual reporting. The state engineer shall retain jurisdiction
over all return flow credit permits and may revise return flow credits as
deemed appropriate. The amount of return
flow credit may be administered on a year-to year basis. Return flow credits shall not accrue and may
not be carried over to the following year.
In the event of changes in established patterns of water use,
appropriately revised return flow plans may be required in order to receive
continued consideration for return flow credit.
F. Additional application requirements
for water rights associated with acequias or community ditches: In addition to the requirements of
Subsections A, B, C, and D of 19.26.2.11 NMAC, an application for a change,
including an emergency 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 and Sections 73-3-1 through 73-3-11 NMSA, shall
include the documentary evidence of the applicant’s compliance with the
requirements of Section 72-5-24.1 NMSA.
The documentary evidence shall include a copy of the applicant’s written
request to the commissioners of the acequia or community ditch for approval of
the proposed change, together with the evidence that the request was delivered
to the commissioners by certified mail; and one of the following:
(1) documentary evidence
provided by the commissioners of the acequia or community ditch showing that
the applicant has complied with all applicable requirements duly adopted by the
acequia or community ditch pursuant to Sections 73-2-21 or 73-3-4.1 NMSA; or
(2) an affidavit provided
by the commissioners of the acequia or community ditch stating that the acequia
or community ditch has not adopted any requirements pursuant to Sections
73-2-21or 73-3-4.1 NMSA; or
(3) an affidavit provided
by the applicant stating that the acequia failed to make a decision in response
to the applicant’s written request for approval of the proposed change within
one hundred and twenty (120) days after the applicant mailed the request to the
commissioners by certified mail.
G. Additional changes requiring permit: Any other change requiring a permit from the
state engineer not specifically covered by this section shall conform generally
to this section and the rules and regulations of the office of the state
engineer.
[19.26.2.11 NMAC - N,
1/31/2005]
19.26.2.12 APPLICATION
PROCESSING: This section describes the process in which
applications filed pursuant to 19.26.2.10 or 19.26.2.11 NMAC will be processed.
A. Return of application: The state engineer may return an application
to the applicant, with a statement of corrections required, if the application
is found to be faulty or incomplete. If
the application is returned to the state engineer with the necessary
information within sixty (60) days from the date the application is returned by
the state engineer, the original filing date of the application shall be
retained.
B. Rejection of application: When, after preliminary review of the
information provided by the applicant, the state engineer is of the opinion
that there is no unappropriated surface water available, or that the approval
of the application would be contrary to the conservation of water within the
state or detrimental to the public welfare of the state, or that the applicant
has not complied with the applicable requirements of Section 72-5-24.1 NMSA,
then the application shall be rejected.
The state engineer shall decline to order the publication of notice of
any such application.
C. Publication: After receipt of an acceptable application,
the state engineer will issue a notice for publication to the applicant. The notice issued by the state engineer shall
be published once a week for three (3) consecutive weeks in a newspaper of
general circulation - as prescribed by the state engineer – for every county
affected. The notice will also be placed
on the state engineer web-site (www.ose.state.nm.us). Only notices issued by the state engineer
pursuant to Section 72-5-4 or Section 72-12-3 NMSA shall be valid. Prior to publication, the applicant shall
ensure that the notice provides all essential facts pertaining to the
application, including the location of the point(s) of diversion, the amount
and timing of the diversion of water, the place of use, and the purpose for
which the water is to be used. The
applicant shall ensure the accuracy of publication of the notice in the
newspaper. The responsibility for
publication and all expenses associated with publication or republication shall
be borne by the applicant. An affidavit
of the publication shall be filed with the state engineer within sixty (60)
days of the notice being issued to the applicant by the state engineer. Failure to file an affidavit of publication
within the stated time shall result in the filing date of the application being
postponed to the date the last affidavit is filed.
D. Amended notice and republication: If publication of the notice is defective,
the state engineer may order republication.
If an amendment is made to an application after publication of the
original notice that changes the location of the point of diversion, requests a
larger diversion amount or a larger consumptive use of water or changes the
place or purpose of use of the water, the state engineer shall issue an amended
notice and require the publication of the amended notice. Any republication cost or cost to publish an
amended notice shall be paid by the applicant.
An amended notice shall be published in accordance with the requirements
of Subsection C of 19.26.2.12 NMAC.
E. Protest to application: Any person, firm, corporation or other entity
objecting that the granting of the application will impair the objector’s water
rights shall have standing to file objections or protests. Any person, firm, corporation or other entity
objecting that granting of the application will be contrary to the conservation
of water within the state or detrimental to the public welfare of the state and
showing that the objector will be substantially and specifically affected by
the granting of the application shall have standing to file objections or
protests. Pursuant to Section 72-5-5.1
NMSA, standing shall be afforded for those asserting legitimate concerns
involving public welfare and conservation of water in a manner which avoids
unduly burdening the administrative and judicial process. All objections and protests shall set forth
the grounds for asserting standing. All
objections or protests failing to meet the above criteria for standing will not
be recognized as valid protests. The
state of New Mexico or any of its branches, agencies, and political
subdivisions shall have standing to file objections or protests. The state engineer will mail one copy of the
objections or protests to the applicant.
(1) Filing deadline: All objections and protests must be
filed with the state engineer not later than ten (10) calendar days after the
date of the last publication of the notice.
If the final day for filing a protest falls on a weekend or a state of
New Mexico recognized holiday, protests received on the next business day shall
be deemed timely. All objections or
protests filed after the ten-day period will not be recognized as valid
protests.
(2) Filing an objection or protest by facsimile: Objections or protests may
be filed via facsimile no later than 5:00 p.m. (mountain time) of the tenth
calendar day after the date of last publication of notice, provided the
original objections or protests are mailed and postmarked within twenty-four
(24) hours after transmission of the facsimile.
If the original objections or protests are not mailed and postmarked within
twenty-four (24) hours of transmission, the protest will be deemed untimely,
and will not be recognized by the state engineer as a valid protest.
(3) Hearing before the state engineer:
The state engineer encourages the parties to resolve the objection or
protest. If the applicant and protestant
cannot reach agreement by which the protest can be withdrawn, the matter shall
proceed to hearing as described in 19.25.2 and 19.25.4 NMAC, unless the state
engineer determines that the application should be denied, in which case the
state engineer may deny the application prior to holding a hearing.
F. Action of the state engineer -
protested application:
(1) Denial of application: The
state engineer may deny a protested application, prior to or after holding a
hearing, if the state engineer determined one or more of the following:
(a)
No water right exists.
(b)
Granting the application would be detrimental to or impair existing
water rights.
(c)
Granting the application would be contrary to the conservation of water
within the state.
(d)
Granting the application would be detrimental to the public welfare of
the state.
(e)
For a new appropriation, available information indicates that there is
no unappropriated surface water.
(2) Permits - conditions of approval:
The state engineer may approve a protested application after holding a
hearing and may impose reasonable conditions of approval.
G. Withdrawal of application: An applicant may request in writing that an
application be withdrawn. A withdrawn
application is not subject to reinstatement, although the applicant may refile
the application or a similar application at a later date. A copy of the withdrawn application remains
part of the public record. A protested
application may not be withdrawn and refiled for the purpose of removing a
standing protest. When a protested
application is withdrawn and the same or similar application is filed within
one calendar year of the withdrawal date, the state engineer will attempt to
notify the previous protestant(s) of the refiled application. The withdrawal of an application that is
currently in the hearing process before the state engineer may only be
withdrawn pursuant to 19.25.2 NMAC.
H. Action of the state engineer -
unprotested application: After
receipt of an affidavit of publication for an application to which no timely
protest was received or remains, the state engineer will act on the
application.
(1) Denial of application: The
state engineer shall deny an application if the state engineer makes any of the
five determinations listed in Paragraph 1 of Subsection F of 19.26.2.12 NMAC.
(2) Permits - conditions of approval:
The state engineer may approve an application and may impose reasonable
conditions of approval including measurement at the point of diversion. The state engineer retains jurisdiction of
all permits.
I. Request
to set aside decision for reconsideration or hearing: Upon receipt of notice from the state
engineer of the decision on an application, if the permittee is aggrieved by
any of the conditions of approval, the permittee may within thirty (30)
calendar days of such receipt request in writing that the decision be set aside
for the purpose of reconsideration or hearing. The state engineer may issue an order
setting aside all or part of his decision for the purpose of reconsideration or
hearing. That part of the permit which
is set aside shall revert to application status and may not be exercised.
(1) State engineer order to set aside
decision for the purpose of reconsideration: At the request of the permittee, the state
engineer may issue an order setting aside all or part of his decision for the
purpose of reconsideration. If
additional information is to be submitted for reconsideration, the order shall
specify the time allowed for submission.
Failure to submit information within the specified time shall result in
reinstatement of the original decision.
Upon receipt of notice from the state engineer of the decision on a
reconsideration of an application, if the permittee is aggrieved by the
decision, the permittee may within thirty (30) calendar days of such receipt
request in writing that the decision be set aside for the purpose of hearing in
accordance with 19.25.2 and 19.25.4 NMAC.
(2) State engineer order to set aside
decision for the purpose of hearing:
At the request of the permittee, the state engineer shall issue an order
setting aside all or part of his decision for the purpose of hearing. After the state engineer issues an order
setting aside all or part of his decision for the purpose of hearing in
accordance with 19.25.2 and 19.25.4 NMAC.
[19.26.2.12 NMAC - N,
1/31/2005]
19.26.2.13 PERMITS: Upon state
engineer approval an application becomes a permit. A permit allows the permittee to place water
to beneficial use in accordance with the permit conditions of approval.
A. Construction of works and proof of
completion: No works for the
storage, diversion, or carriage of water may be constructed or substantially
modified except in accordance with the permit conditions of approval. Any such construction or modification must be
supervised by a professional engineer, registered in the state of New Mexico,
unless the state engineer in his discretion expressly waives this
requirement. On or before the date set
in the permit for the completion of works, the permittee shall notify the state
engineer that work has been completed by filing with the state engineer proof
of completion of works.
(1) Form - content: The
permittee shall submit proof of completion of works on a form prescribed by the
state engineer. The form shall include
the following information: the name and address of the permittee, the pertinent
state engineer file number(s), the source of water supply, the name of the
stream system, the location of point of diversion, a description of the
constructed works - including diversion dams, storage dams, main canals,
headgates, pipelines, flumes, reservoirs, and laterals, the date the
construction of works was completed, a description of rights-of-way, and other
information the state engineer deems necessary.
The point(s) of diversion shall be described using latitude and longitude
or the New Mexico state plane coordinate system. If the proof of completion form filed by the
permittee lacks any of this information, it may be returned for completion.
(2) Filing fee: A fee of $25
must accompany a proof of completion of works.
(3) Unsafe or defective construction: Upon submission of a proof of completion of
works, the state engineer will order the inspection of the works after notice
to the permittee. At any time before or
after issuance of a certificate of construction, the state engineer may order
the inspection of the works after notice to the permittee. If the state engineer determines after
inspection that the works for the storage, diversion, or carriage of water are
unsafe or do not comply with the permit conditions of approval, the state
engineer may require the permittee to make necessary changes within a
reasonable time.
(4) Certificate of construction:
Upon completion of the works to the satisfaction of the state engineer,
the state engineer will issue a certificate of construction, which shall
describe the constructed works, the location of the point(s) of diversion, the
capacities of the works for the storage, diversion, or carriage of water, and
certify the adequacy of the works for the permitted uses.
B. Proof of application of water to
beneficial use: Upon applying water
to beneficial use as provided by the permit, on or before the due date set by
the permit, the permittee shall file with the state engineer proof of
application of water to beneficial use.
The beneficial use of water must be in accordance with the permit
conditions of approval. Once a proof of
application of water to beneficial use has been filed, the water right shall be
limited to the amount of water that has been put to beneficial use, and no
further development of the water right may occur.
(1) Form - content: The
permittee shall submit proof of application of water to beneficial use on a
form prescribed by the state engineer.
The form shall include the following information: the name and address
of permittee, the pertinent state engineer file number(s), the source of water
supply, the name of the stream system, the location of the point(s) of
diversion, the location of the place of use, the purpose of use to which the
water is being beneficially applied, the annual diversion of water, the method
of conveyance, the annual diversion schedule, and other information the state
engineer may deem necessary. The
point(s) of diversion shall be described using latitude and longitude or the
New Mexico state plane coordinate system.
If the form filed by the permittee lacks any of this information, it may
be returned for completion.
(2) Filing fee: A fee of $25
must accompany a proof of application of water to beneficial use.
(3) Survey plat: A survey shall
be conducted in accordance with the requirements of 19.26.2.26 NMAC of the
diversion works and place of use of the water by a surveyor or professional
engineer registered in the state of New Mexico. The permittee shall submit a
plat of the survey with the proof of beneficial use.
C. Application for extension of time: When a permittee is unable to construct the necessary
works or apply water to beneficial use within the time authorized, the
permittee may file with the state engineer an application for extension of
time. The application shall state all
reasons for the request for additional time, describe the works which have been
completed, the extent of application of water to beneficial use under the
permit at the time of the request, and a plan setting forth the dates when the
project will be completed or when the total amount of water to be appropriated
under the permit will be applied to beneficial use. The application may be accompanied by
affidavits, photographs of works completed, or other information supporting the
request. The state engineer may grant an
extension of time upon a proper showing of due diligence or reasonable cause
for delay, or upon the state engineer finding that it is in the public interest
to allow additional time. Financial
inability of the permittee to proceed with a project is not a sufficient reason
for granting an extension of time.
Failure of the permittee to provide a proper showing of due diligence or
reasonable cause for delay as described in Section 72-5-28 NMSA, shall result
in denial of the extension of time.
Denied requests for extension of time may be appealed as provided in
Subsection I of 19.26.2.12 NMAC. The
water right established shall be limited by that amount of water lawfully
applied to beneficial use pursuant to the terms of the permit. Failure to file proof of beneficial use
within the time allotted by the state engineer shall result in cancellation of
the permit.
(1) Term: An extension of time
may be granted for a period not to exceed three (3) years. Except as provided in Subsections F and G of
19.26.2.19 NMAC, no extensions of time shall be granted which in combination
extend the time allowed by the permit beyond ten (10) years from the initial
date of approval of the application, unless the state engineer in his
discretion expressly waives this limitation pursuant to Section 72-5-14
NMSA. For applications for extension of
time for filing proof of completion of works, the state engineer may upon the
request of the applicant allow additional time for the completion of works
equal to the time during which work was prevented by acts of God, operation of
law, or other causes beyond the control of the applicant. For applications for new appropriations
pursuant to Subsection G of 19.26.2.19 NMAC, and for application for water
rights transferred pursuant to Subsection F of 19.26.2.19 NMAC, no extensions
of time shall be granted which in combination extend the time allowed by the
permit beyond forty (40) years from the date the application was filed at the
office of the state engineer.
(2) Form - content: The permittee
shall submit an application for extension of time on a form prescribed by the
state engineer. The form shall include
the following information: the name and address of the permittee, the pertinent
state engineer file number(s), the reason(s) for requesting additional time
under which to complete constructed works or apply water to beneficial use, a
plan setting forth the dates when the project will be completed or when the
total amount of water to be appropriated under the permit will be applied to beneficial
use, a description of the works which have been completed and the extent of
application of water to beneficial use under the permit at the time of the
request, and other information the state engineer may deem necessary. If an application lacks any of this
information, it may be returned for completion.
The application may be accompanied by affidavits, photographs of works
completed, or other information supporting the request.
(3) Filing fee: A fee of $50
must accompany an application for extension of time.
D. License to appropriate: After notice to the permittee, the state
engineer or his designee may perform a field inspection of the permittee’s
application of water to beneficial use.
Upon application of water to beneficial use in accordance with the
permit conditions of approval the state engineer will issue a license to
appropriate water, which shall define the extent and conditions of use under
which the water right has been established.
A license to appropriate shall recognize a water right only to the
extent water has been applied to beneficial use under the conditions of the
permit, and shall not recognize any diversion of water that exceeds the permit
conditions of approval. A license may be
revoked for failure to comply with the terms of the license.
E. Cancellation of permit: The state engineer may cancel a permit upon
failure of a permittee to comply with the permit conditions of approval or any
applicable provisions of 19.26.2 NMAC or Chapter 72 NMSA. The state engineer may also cancel a permit
upon request from the permittee. Upon
final cancellation of a permit, the water subject to the permit reverts to the
public.
[19.26.2.13 NMAC - N,
1/31/2005]
19.26.2.14 LIVESTOCK
WATER IMPOUNDMENTS: A permit is required to impound surface water
for watering livestock. If the proposed
impoundment is created by a dam that exceeds ten feet in height measured from
the lowest point on the downstream toe to the dam crest, or exceeds ten
acre-feet in storage capacity, the applicant shall comply with the
applicable dam construction requirements in 19.25.12 NMAC. Watering of livestock does not include the
impoundment of surface or groundwater in any amount for fishing, fish
propagation, recreation, or aesthetic purposes.
A. Form - content: An application for permit for livestock water
impoundment shall be filed on a form prescribed by the state engineer. The
application shall include the following information: the name and mailing
address of the applicant, owner of land on which the livestock water
impoundment will be constructed, proof of permission from land owner (if other
than applicant) to construct a livestock water impoundment, name of the
livestock water impoundment, location of the livestock water impoundment using
public land survey system, latitude and longitude, or the New Mexico state
plane coordinate system, name of the watercourse, maximum depth of the
livestock water impoundment, height of dam and height of spillway from the
lowest natural ground surface on the downstream side to the dam crest, surface
area and storage capacity of the impoundment at lowest spillway elevation, map
illustrating location of proposed livestock water impoundment and source of
water, type of stock, amount of stock, other sources of water locally available
for stock watering, and any other information deemed necessary by the state
engineer. If an application lacks any of
this information, it may be returned to the applicant for completion.
B. Filing fee: A fee of $10 must accompany the application
for a livestock water impoundment.
C. Return or rejection of an
application: After reviewing each
application, the state engineer will notify the applicant if any deficiencies
are found with the application. The applicant will be given an opportunity to
correct any deficiencies noted in the application. All deficiencies noted by
the state engineer shall be corrected prior to acceptance and action on the
proposed application for livestock water impoundment.
D. Action of the state engineer: The state engineer shall approve an
application if, after review, the state engineer is of the opinion that the
proposed use qualifies as a livestock water impoundment by meeting the
following requirements: the impoundment is not fed by or located on a perennial
stream, the impoundment is used for stock watering, and the capacity of
impoundment is 10 acre-feet or less. The
state engineer may take into account the maximum amount of water required per
livestock unit and shall take into account regional and climatic conditions
that affect consumption. The state
engineer may impose reasonable conditions of approval. An application may be
denied if the state engineer is of the opinion that the proposed impoundment does
not qualify as a livestock water impoundment.
A permit to appropriate water must be obtained pursuant to Section
19.26.2.10 or 19.26.2.11 NMAC if the proposed impoundment is located on or fed
by a perennial stream or if the capacity of the impoundment exceeds 10
acre-feet.
E. Proof of construction: No works may be constructed or modified
except in accordance with the permit conditions of approval. Upon completion of
a livestock water impoundment, a statement of completion of construction shall
be filed with the state engineer on a form prescribed by the state engineer.
Said statement of completion shall be filed within one year of approval or the
permit shall automatically expire. An
expired permit shall not be subject to reinstatement.
F. Declaration of existing livestock
water impoundments: Any person, firm
or corporation claiming to be the owner of a water right established prior to
March 19, 1907, from any surface water source, may file a declaration on a form
prescribed by the state engineer pursuant to 19.26.2.8 NMAC. Any person, firm or corporation claiming to
be the owner of a livestock water impoundment where the impoundment was created
after March 19, 1907 but before May 19, 2004, may file a declaration of
existing livestock water impoundment, provided the storage capacity is less
than ten acre-feet. The declaration
shall set forth the history and continuity of the beneficial use to which said
water has been applied. A declaration
may be accompanied by a map prepared pursuant to 19.26.2.26 NMAC and may be
accompanied by deeds, survey plats, affidavits and other evidence tending to
substantiate the claim. If such
supporting documents are filed with the state engineer, they will be filed
together with the declaration. The
declaration may be filed by the declarant on his personal information and
belief. No declarations will be accepted
for filing within any stream system where an adjudication court has entered an
order or decree that operates to bar such claims.
(1) Form - content: A
declaration of livestock water impoundment shall be filed on a form prescribed
by the state engineer. The declaration shall include the following information:
the name and mailing address of the declarant, owner of land on which the
livestock water impoundment is located, proof of permission from land owner(if
other than declarant) to construct a livestock water impoundment, name of the
livestock water impoundment, location of the livestock water impoundment using
public land survey system, latitude and longitude, or the New Mexico state
plane coordinate system, name of the watercourse, maximum depth of the
livestock water impoundment, height of dam and height of spillway from the
lowest natural ground surface on the downstream side to the dam crest, surface
area and storage capacity of the impoundment at lowest spillway elevation, map
illustrating location of the livestock water impoundment and source of water,
type of stock, amount of stock, other sources of water, quantity of water used,
the date of construction, the date water was first applied to beneficial use
and the continuity thereof, and any other information deemed necessary by the
state engineer. The declarant shall sign
the declaration before a notary. If a
declaration lacks any of this information, it may be returned to the declarant
for completion.
(2) Filing fee: A fee of $10
must accompany the declaration for a livestock water impoundment.
[19.26.2.14 NMAC - N,
1/31/2005]
19.26.2.15 PONDS
AND OTHER IMPOUNDMENTS: A permit is required to capture or store surface water in an impoundment. An application to capture and store surface
water shall be filed pursuant to 19.26.2.10 NMAC or 19.26.2.11 NMAC unless the
impoundment of water is authorized as a livestock watering impoundment under
19.26.2.14 NMAC. A permit to appropriate
water is required for an impoundment created by constructed works, sand and
gravel operations, or mining operations, including excavations that fill with
water. Dams exceeding 10 feet in height or that can store in excess of 10
acre-feet shall meet the requirements of 19.25.12 NMAC.
A. Form - content: An application for an impoundment shall be
filed pursuant to the requirements of 19.26.2.10 NMAC or 19.26.2.11 NMAC. In addition to the information required for
an application filed under 19.26.2.10 NMAC or 19.26.2.11 NMAC, an application
for a pond or other impoundment shall also include: the name of the proposed
impoundment, the location of the impoundment using public land survey system,
latitude and longitude, or the New Mexico state plane coordinate system, the
maximum depth of the impoundment, the perimeter of the impoundment, the maximum
surface area, the estimation of annual evaporative losses, the slope(s) of the
interior basin, the outlet conduit size and slope, a table showing the stage,
surface area and storage capacity of the impoundment, and the time to empty the
impoundment.
B. Flood control: No permit to appropriate water is required
for an impoundment when the primary purpose of the impoundment is flood
control, provided the outlet drains the impoundment
(from the spillway crest) in 96 hours.
The water shall not be detained in
the impoundment in excess of 96 hours unless the state engineer has
issued a waiver to the owner of the impoundment.
[19.26.2.15 NMAC - N,
1/31/2005]
19.26.2.16 [RESERVED]
19.26.2.17 CHANGE
OF OWNERSHIP: In the event of any changes of ownership
affecting the title to a declaration, permit, license, or adjudicated water
right, the new owner shall file a change of ownership form with the state
engineer. The new owner shall file a
separate change of ownership for each declaration, permit, license, or
adjudicated water right of record filed with the state engineer. Upon acceptance by the state engineer for
filing, the new owner shall record a copy of the change of ownership form filed
with the state engineer with the clerk of the county in which the declaration,
permit, license, or adjudicated water right is located.
A. Form - content: The new owner shall file a change of ownership
in duplicate on a form prescribed by the state engineer. A change of ownership shall include the
following information: the name of the
owner of record, the name and address of the new owner, the state engineer file
number, the diversion amount, the consumptive use amount, the purpose of use,
the legal description of the place of use, the priority date(s), and any other
information the state engineer deems necessary.
The new owner shall sign each form before a notary. If a change of ownership form lacks any of
this information, it may be returned for completion.
B. Filing fee: A fee of $5 must accompany a change of
ownership form.
C. Proof of ownership: The new owner shall attach to the change of ownership
form a copy of a warranty deed or other instrument of conveyance that has been
duly recorded with the clerk of the county in which the declaration, permit,
license, or adjudicated water right is located.
The warranty deed or other instrument of conveyance shall show the
ownership of the declaration, permit, license, or adjudicated water right in
the name of the new owner. The state
engineer will not accept for filing a change of ownership form that is not accompanied
by a recorded instrument of conveyance.
(1) Acceptable
instruments of conveyance for the purposes of this section include, but are not
limited to, warranty deeds, special warranty deeds, quitclaim deeds, personal
representative’s deeds, special master’s deeds, and tax deeds, where such
instruments unconditionally convey present title to the declaration, permit,
license, or adjudicated water right.
(2) Real estate
installment sales contracts or memoranda of such contracts, mortgages, instruments
conveying security interests, or other documents that do not on their face
unconditionally convey present title to the declaration, permit, license, or
adjudicated water right are not acceptable instruments of conveyance for the
purposes of this section.
D. Effect: A change of ownership form filed with the
state engineer notifies the state engineer that a change in ownership has been
effected by a legal instrument of conveyance.
Acceptance of a change of ownership form by the state engineer for filing
does not constitute approval by the state engineer of either the validity of
the conveyance or the validity of the right conveyed.
E. Appurtenance: Except as otherwise provided by written
contract between the owner of the land and the owner of a ditch, reservoir, or
other works for the storage or conveyance of water, all surface waters
appropriated for irrigation purposes are appurtenant to the land upon which
they are used by operation of Sections 72-1-2 and 72-5-23 NMSA. No irrigation water right appurtenant to the
land irrigated shall be assigned or conveyed apart from the land unless it is
expressly severed from the land in the manner provided by law.
[19.26.2.17 NMAC - N,
1/31/2005]
19.26.2.18 LEASE
OF WATER RIGHTS: An owner of a
water right may lease all or any part of their right for a period not to exceed
ten (10) years pursuant to Section 72-6-3 NMSA except that a water right may be
leased for a period not to exceed forty years by a forty year planning entity
as provided in Section 72-1-9 NMSA.
Transfers of agricultural water to municipal/industrial use pursuant to
Section 73-10-48 NMSA will be covered by rules and regulations promulgated
pursuant to the statute. Prior to the
use of water pursuant to a lease, if the proposed point of diversion or place
or purpose of use differs from that of the owner’s water right in any respect,
a permit must be obtained from the state engineer for the term of the
lease. The procedure for filing an
application shall be the same as described in 19.26.2.11 NMAC. The amount of water that an owner/lessor may
use during the term of a lease shall be reduced by the amount of water so
leased. Upon termination of such a
lease, the point of diversion and place and purpose of use subject to the lease
shall revert to the owner’s original point of diversion and place and purpose
of use. Renewal of a lease shall require
a new application, unless a longer period has been previously applied for,
advertised, and approved by the state engineer.
[19.26.2.18 NMAC - N, 1/31/2005]
19.26.2.19 WATER DEVELOPMENT PLANS: A forty-year planning entity shall be allowed
a water use planning period, not to exceed forty years, to acquire and hold
water rights pursuant to Section 72-1-9 NMSA.
A water development plan may be filed at any time. If a plan is not already on file, a water
development plan shall be filed with an application to appropriate water or
transfer a water right where the water right will be held unused or undeveloped
pursuant to the plan.
A. Planning
period: The water rights of a
forty-year planning entity subject to this section shall be based upon the
reasonably projected additional needs for water within forty years set out in a
water development plan. The
implementation of the plan shall not exceed a forty-year period from the date
the forty-year planning entity files with the state engineer an application to
change the place or purpose of use of a water right pursuant to the plan or an
application for a new appropriation pursuant to the plan.
B. Water development plan - content: A water development plan shall include the
following information: the name and
address of the owner of record of the water rights subject to the plan, a
summary of all water rights subject to the plan, the place and purpose of use of
the identified water rights, the historical and current water use, the
historical and existing population served by the identified water rights,
reasonable population projections, implemented water conservation measures,
planned water conservation measures, a summary of the per capita water use
including a comparison with the per capita water use of other similar
forty-year planning entities, reasonably projected additional needs - taking
into account the variability of surface water supply and the sustainability of
groundwater supply - for water within forty years, and any other information
the state engineer deems necessary. If a
development plan lacks any of this information, it may be returned to the
forty-year planning entity for completion.
C. Filing fee: A fee of $100 must accompany a water
development plan.
D. Return of plan: The state engineer may return the plan to the
forty-year planning entity, with a statement of corrections required, if it is
found to be faulty or incomplete.
E. Approval of plan: Upon review of the plan, if the state
engineer finds the plan to be reasonable, the plan and projected needs of the
planning entity will be approved by the state engineer. Notification of the approval shall be given
to the planning entity.
F. Water
rights held pursuant to plan: For
permits for water rights acquired by forty-year planning entities pursuant to a
forty-year plan, the state engineer may grant extensions of time which in combination
extend the time allowed by the permit up to forty (40) years from the date of
the application where:
(1)
the planning entity acquires and holds the water right pursuant to a
water development plan approved by the state engineer; and
(2)
upon acquisition of the water right it files with the state engineer an
application to change the place or purpose of use of the water right pursuant
to the water development plan; and
(3)
the quantity of water associated with the water right, together with the
quantity of water associated with the other water rights and permits held
pursuant to the plan, does not exceed the reasonably projected additional needs
for water within forty years set out in the plan.
G. Permits
for new appropriations held pursuant to plan: For permits for new appropriations for
forty-year planning entities, the state engineer may grant extensions of time
which in combination extend the time allowed by the permit up to forty (40)
years from the date of the application where:
(1)
the application is filed and the permit will be held pursuant to a water
development plan approved by the state engineer; and
(2)
the quantity of water authorized in the permit, together with the
quantity of water associated with the water rights and other permits held
pursuant to the plan, does not exceed the reasonably projected additional needs
for water within the forty years set out in the plan.
[19.26.2.19 NMAC - N, 1/31/2005]
19.26.2.20 FORFEITURE
AND ABANDONMENT OF A WATER RIGHT: A water right may be lost for nonuse in two
ways. First, the right may be forfeited
pursuant to Section 72-5-28 NMSA or Section 72-12-8 NMSA. Alternatively, the right may be
abandoned. Abandonment is a judicial
doctrine.
A. Forfeiture: All or any part of a water right is subject
to forfeiture when a person entitled to the use of water fails to apply water
to beneficial use for a period of four or more consecutive years. If the state engineer determines that a water
right is subject to forfeiture, the water right owner will be sent a notice and
declaration of nonuse by certified mail.
If failure to apply water to its associated beneficial use persists for
one year after receipt of notice and declaration of nonuse given by the state
engineer the water right will be forfeited and the unused water shall revert to
the public. The requirement for an issuance of a notice and declaration of
nonuse by the state engineer shall not apply to water that has reverted to the
public by operation of law prior to June 1, 1965 (see Sections 72-5-28 and
72-12-8 NMSA). Periods of non-use for
the following reasons shall not be applied towards the four or more consecutive
year period required for a water right to be subject to forfeiture:
(1) Despite the diligent
effort on the part of the water right owner, circumstances beyond the control
of the water right owner have prevented the application of water to beneficial
use.
(2) The state engineer
has granted an extension of time in which to apply water to beneficial use.
(3) The water is part of
a state engineer approved water development plan (see 19.26.2.19 NMAC).
(4) The water right owner
is on active duty in the armed forces of the United States of America.
(5) The water right is
acquired and placed in a state engineer approved water conservation program.
(6) The water right is
appurtenant to irrigated farm lands which have been placed under the acreage
reserve or conservation reserve program provided by the Food Security Act of
1985, P.L. 99-108.
B. Abandonment: Common law abandonment of a water right
requires both the nonuse of water by a person entitled to such use and the
intent to abandon the right. Whether or
not a court would determine that a water right has been abandoned depends on
the facts and circumstances in each particular case. The intent to abandon the right may be
express or may be inferred from the acts of the water right owner. In
making such determination, the state engineer is not adjudicating a right, but
merely making a threshold administrative determination of the validity and
existence of the underlying water right.
Nonuse for an unreasonable period of time establishes a
presumption of abandonment and prima facie evidence of the intention to abandon
the right. To rebut a presumption of
abandonment a person must establish not merely their expressions of desire or
hope or intent, but some fact or condition excusing the period of nonuse.
[19.26.2.20 NMAC - N,
1/31/2005]
19.26.2.21 - 19.26.2.24 [RESERVED]
19.26.2.25 APPLICATION
MAPS:
An application for appropriation, change in point of diversion or change
in place and/or purpose of use shall require a map delineating the proposal
described in the application. The map
shall include a description of all lands, point(s) of diversion, place(s) of
use, accurate locations of canals and streams, and other relevant features
included in the application. In general,
maps accepted by the state engineer are:
irrigation and conservancy district maps, maps prepared by a licensed
professional surveyor or engineer, and state engineer hydrographic survey
maps. Plan drawings and maps prepared
with the aid of a computer shall be submitted with a copy of the digital data
files in a format acceptable to the state engineer.
[19.26.2.25 NMAC - N,
1/31/2005]
19.26.2.26 FORMAT
FOR PLAN DRAWINGS, PROOF OF BENEFICIAL USE AND DECLARATION MAPS: All plan
drawings, proof of beneficial use maps, and declaration maps filed with the
state engineer shall meet the requirements listed below. Proof of beneficial
use maps and declaration maps shall be prepared by either a licensed
professional surveyor or licensed professional engineer in the state of New
Mexico. Plan drawings and maps prepared
with the aid of a computer shall be submitted with a copy of the digital data
files in a format acceptable to the state engineer.
A. Map quality: Plan drawings and maps shall be made from
actual field or photogrammetric surveys of an accuracy acceptable to the state
engineer. Plan drawings and maps shall
be prepared with permanent black ink on mylar.
All original signatures, dates, and acknowledgments appearing on the
sheet(s) shall be in permanent ink. If
more than one sheet is required, each shall be numbered in sequence (example:
Sheet 1 of 3). Plan drawings and maps
shall always be rolled - never folded - for transmittal.
B. Scale and size: Mylar sheets
shall be twenty-four (24) inches by thirty-six (36) inches with one (1) inch
margins on all sides unless otherwise specified by the state engineer. The scale(s) used on the drawings may vary
according to requirements and space available to show all necessary data in
detail clearly in feet and decimals.
Detailed dimensions of structures, headgates, drops, etc. shall be given
in feet and 1/10th of a foot or inches.
C. Map details: The following
information is required on declaration and proof of beneficial use maps.
(1) Title sheet: The following
title shall be placed on and made a part of the first sheet:
MAP
of the
(name of system: ditch, ditch & reservoir,
irrigation, power, etc.)
,
Applicant/Declarant/Permit Holder
State Engineer File
Number(s):
Located in County, State of New Mexico.
Scale of Map: 1 inch = feet.
The undersigned,
,
whose address is: ,
Zip Code , County of , State of .
(2) Location of point of diversion:
The location of the point of diversion on the stream, whether supplying
water to direct diversion to a ditch or to an off-channel reservoir, shall be
identified on the drawings as follows:
The headgate, which is the
point of diversion from (river, creek, spring, arroyo) from which the
works derive their water supply, is located as follows (latitude) and (longitude) or X = and Y = ,
(New Mexico state plane coordinate system), NAD .
(3) Acreage irrigated, to be irrigated, or retired: Acreage irrigated or retired from irrigation
shall be clearly indicated on the maps.
Cross-hatching the subject area on the location map is preferred. A written description of the location of the
acreage, acceptable to the state engineer, shall be provided.
D. Orientation and date: The direction of north and the basis of
bearings shall be shown on all maps. The
date that field surveys are made or the date of the aerial photography used
shall be shown on the maps.
E. Vicinity map: A vicinity map of sufficient scale and size to
locate the pertinent area shall be shown on the maps and/or plan drawings.
F. Surveyor’s certification and seal: A licensed professional surveyor preparing
maps shall place on the first sheet the certificate shown below and the
certificate shall be signed. The
surveyor’s license number and the seal impression shall accompany the
certificate.
State of New Mexico )
) ss.
County of )
I, , hereby certify that I am licensed
professional surveyor and that the accompanying maps were prepared by me or
under my direction, and that the same are true and correct to the best of my
knowledge and belief.
Licensed Professional
Surveyor
License Number:
Date Submitted:
G. Engineer’s certification and seal: A licensed professional engineer preparing
maps, plan drawings, or specifications shall place on the first sheet of the
map or plan drawings and the first page of the specifications the certificate
shown below and the certificate shall be signed. The engineer’s license number and the seal
impression shall accompany the certificate.
State of New Mexico )
) ss.
County of )
I, , hereby certify
that I am a licensed professional engineer, qualified in (agricultural, civil, geological etc.) engineering
and that the accompanying (maps, drawings or specifications) were
prepared by me or under my direction, and that the same are true and correct to
the best of my knowledge and belief.
Licensed Professional
Engineer
License Number:
Date Submitted:
H. Owner’s certificate: An owner’s certificate shall be placed on the
first sheet of the plan drawings and shall be signed by the owner and
acknowledged by a notary public.
State of New Mexico )
) ss.
County of )
I, , being first duly sworn, upon my oath, state
that I have read and examined the accompanying drawings and statements,
(consisting of sheets) and know the contents thereof and
representations thereon, and all that is shown hereon is done with my free
consent and in accordance with my wishes and state that the same are true to
the best of my knowledge and belief.
Owner
Subscribed and sworn to
before me this day of ,
20
Notary Public
My commission expires (SEAL)
If a claimant is a
corporation, political subdivision or other governmental entity the following
shall be used:
State of New Mexico )
) ss.
County of )
I, , being first duly sworn, upon my oath, state
than I am the (officer) of ,
a corporation duly organized under the laws of the State of , and
that the accompanying drawings and statements, ( consisting of sheets) were made under authority of the Board
of Directors of said Corporation, and that, in their behalf, I have read and examined
the statements and representations thereon and all that is shown hereon is done
with their free consent and in accordance with their wishes and state that the
same are true to the best of my knowledge and belief.
Representative, Title
Subscribed and sworn to
before me this day of , 20 .
Notary Public
My commission expires (SEAL)
I. State engineer’s certificate: A certificate form for the state engineer
approval shall be placed on the first sheet of the maps, plan drawings, and the
specifications. This certificate is to
be signed by the state engineer after all necessary corrections or additions,
if any, have been made.
State of New Mexico )
) ss.
County of )
I hereby certify that the
accompanying (map, plans, specifications) have been duly
examined by me and accepted for filing on the day of , 20 .
State Engineer
J. Reproduction fees: Copies of maps and plan drawings on record with
the state engineer may be purchased at a cost of fifteen dollars ($15) for each
sheet.
[19.26.2.26 NMAC - N,
1/31/2005]
19.26.2.27 LIBERAL
CONSTRUCTION: This part shall be liberally construed to
carry out its purpose.
[19.26.2.27 NMAC - N,
1/31/2005]
19.26.2.28 SEVERABILITY: If any portion
of this part is found to be invalid, the remaining portion of this part shall
remain in force and not be affected.
[19.26.2.28 NMAC - N,
1/31/2005]
HISTORY OF 19.26.2 NMAC:
Pre-NMAC History: The material in
this part is a compilation of previous filings with the New Mexico State
Supreme Court Law Library (SCLL) and with the State Records Center and Archives
(SRC) pertaining to the administration of surface water as follows:
Manual of Revised Rules,
Regulations and Requirements for Filing Claims to Water Rights under Laws of
1907 as amended; in force after June 14, 1913.
Filed 6/27/91 (SRC);
Manual of Revised Rules,
Regulations and Requirements for Filing Applications for Permit to Appropriate
Water under Laws of 1907 as amended; in force after April 14, 1915. Filed 6/27/91 (SRC);
Manual of Revised Rules,
Regulations and Requirements Under Laws Affecting the Public Waters; Revised
Manual in Effect May 1, 1918. Filed
6/27/91 (SRC);
Manual of Revised Rules,
Regulations, Requirements and Instructions Under Law Affecting the Public
Waters; Revised Manual in effect May 1, 1918.
Filed 6/27/91 (SRC);
Manual of Rules and
Regulations for Proceeding Before the State Engineer Under the Laws Affecting
the Surface Waters of the State of New Mexico; Revised April, 1941. Filed 6/27/91 (SRC);
Order No. 32. Amendment to Rules and Regulations Governing
the Appropriation and Use of Surface Waters of the State of New Mexico, Revised
January 1951. Filed 7/12/52 (SCLL) and
6/27/91 (SRC);
Manual of Rules and
Regulations Governing the Appropriation and Use of Surface Waters of the State
of New Mexico; Revised August 1953.
Filed 6/27/91 (SRC);
Order No. 61. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 5/31/56 (SCLL) and 6/27/91 (SRC);
Order No. 62. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 7/20/56
(SCLL) and 6/27/91 (SRC);
Order No. 68. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 3/10/57
(SCLL) and 6/27/91 (SRC);
Order No. 76. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 7/2/59
(SCLL) and 6/27/91 (SRC);
Order No. 89. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed February 12, 1962 (SCLL) and 6/27/91 (SRC);
Order No. 140. In the Matter of the Revision of Article VII
of the Manual of Rules and Regulations of the State Engineer Governing the
Appropriation and Use of Surface Waters of the State of New Mexico. Filed 7/7/87 (SRC).
History of Repealed
Material:
The
following rules and orders are repealed effective January 31, 2005. They have been replaced by 19.26.2 NMAC,
Administration, effective January 31, 2005.
Manual of Revised Rules,
Regulations and Requirements for Filing Claims to Water Rights under Laws of
1907 as amended; in force after June 14, 1913.
Filed 6/27/91 (SRC);
Manual of Revised Rules,
Regulations and Requirements for Filing Applications for Permit to Appropriate
Water under Laws of 1907 as amended; in force after April 14, 1915. Filed 6/27/91 (SRC);
Manual of Revised Rules,
Regulations and Requirements Under Laws Affecting the Public Waters; Revised
Manual in Effect May 1, 1918. Filed
6/27/91 (SRC);
Manual of Revised Rules,
Regulations, Requirements and Instructions Under Law Affecting the Public
Waters; Revised Manual in effect May 1, 1918.
Filed 6/27/91 (SRC);
Manual of Rules and
Regulations for Proceeding Before the State Engineer Under the Laws Affecting
the Surface Waters of the State of New Mexico; Revised April, 1941. Filed 6/27/91 (SRC);
Order No. 32. Amendment to Rules and Regulations Governing
the Appropriation and Use of Surface Waters of the State of New Mexico, Revised
January 1951. Filed 7/12/52 (SCLL) and
6/27/91 (SRC);
Manual of Rules and
Regulations Governing the Appropriation and Use of Surface Waters of the State
of New Mexico; Revised August 1953.
Filed 6/27/91 (SRC);
Order No. 61. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 5/31/56 (SCLL) and 6/27/91 (SRC);
Order No. 62. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 7/20/56 (SCLL) and 6/27/91 (SRC);
Order No. 68. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 3/10/57
(SCLL) and 6/27/91 (SRC);
Order No. 76. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed 7/2/59
(SCLL) and 6/27/91 (SRC);
Order No. 89. Order amending the Rules and Regulations
Revised August 1953 Governing the Appropriation and Use of Surface Waters of
the State of New Mexico; Filed February
12, 1962 (SCLL) and 6/27/91 (SRC);
Order No. 140. In the Matter of the Revision of Article VII
of the Manual of Rules and Regulations of the State Engineer Governing the
Appropriation and Use of Surface Waters of the State of New Mexico. Filed 7/7/87 (SRC).