RAPID/Roadmap/19-NM-f

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New Mexico Permit for Temporary Water Use (19-NM-f)

Developers desiring to appropriate water for less than a year, in an amount less than three acre-feet, are exempted from the general water appropriation process and instead only have to abide by the requirements outlined in NMSA 72-12-3. The statute excepts temporary (and limited) use for specific purposes, including any highways and roads or drilling operations designed to discover or develop the natural resources of New Mexico. Geothermal energy development projects fall within this exception so long as the amount of use and period of use conform to the requirements in NMSA 72-12-1.3.


Permit for Temporary Water Use Process

19-NM-f.1 to 19-NM-f.3 - Application for Permit to Use Underground Waters in Accordance with 72-12-1.3

A developer desiring to use underground public water in an amount that does not exceed three acre-feet for a definite period of one year or less may submit a Application for Permit to Use Underground Waters in Accordance with 72-12-1.3. The use under this type of permit is restricted to prospecting, mining, construction of public works, highways and roads, or drilling operations designed to discover or develop the natural mineral resources of the state. NMSA 72-12-1.3. Generally, applications must include:

  • The name and address of the applicant (and landowner, if different);
  • The well location coordinates;
  • The consumptive use amount;
  • The purpose of use;
  • The pertinent state engineer file numbers; and
  • The driller name and license number.

The NMOSE will only substantively review complete applications. The NMOSE will return incomplete applications to applicants, along with a brief statement addressing the deficiencies. The developer has 60 days from receipt of the defective notice by the NMOSE to refile. However, if the developer refiles within 30 days of defective notice, the NMOSE processes the application with the priority of the original (defective) application. NMAC 19.27.1.11.

19-NM-f.4 - Will the Proposed Use Permanently Impair any Existing Water Rights of Others?

Upon receipt of a complete application, the State Engineer will review the facts and determine if the proposed use will permanently impair any existing water rights of others. If the State Engineer determines the use will not permanently impair existing water rights of others, the State Engineer will grant the permit. If the State Engineer finds impairment, the developer is required to go through the advertisement and (potential) hearing process. NMSA 72-12-1.3.

19-NM-f.5 to 19-NM-f.6 - Provide Public Notice of Application

After a determination of impairment, the NMOSE will publish public notice of the application once a week for three consecutive weeks in a newspaper published and distributed in each county affected by the diversion and in each county where the water will be or has been put to beneficial use. NMSA 72-12-3.D.

Any person, firm, corporation or other entity may object to the granting of an application if it will impair their water rights or if it will be contrary to the conservation of water within the state or detrimental to the public welfare of the state. The protestant must show that they will be substantially and specifically affected by the granting of the application. All objections and protests must be filed within 10 business days following publication of the final notice. NMSA 72-12-3.D.

19-NM-f.7 to 19-NM-f.9 - Have any Protests been Filed on the Application

Any person, firm, corporation or other entity alleging that the granting of the application will impair the objector’s water rights must have standing to file objections or protests. NMAC 19.27.1.14. All protests must set forth the grounds for asserting standing. In addition, all protests must be filed with the NMOSE not later than 10 calendar days after the date of the last publication of the notice. NMAC 19.27.1.14.

Where the public comment period expires and the NMOSE did not receive any protests, the state engineer will issue a Permit to Use Underground Waters in Accordance with Sections 72-12-1.3 so long as the state engineer finds that:

  • There are unappropriated waters;
  • The proposed appropriation would not impair existing water rights from the source;
  • The appropriation is not contrary to the conservation of water within the state; and
  • The appropriation is not detrimental to the public welfare of the state.

NMSA 72-12-3.E.

19-NM-f.10 to 19-NM-f.12 - Is a Hearing Necessary?

The NMOSE encourages the developer to negotiate with any protestant to resolve any protests. If the developer and protestant are unable to reach an agreement, then the matter may proceed to a formal hearing.

The NMOSE may determine prior to the hearing that the application should be denied. The NMOSE may deny a protested Application for Permit to Use Underground Waters in Accordance with 72-12-1.3 prior to or after holding a hearing if they determine one or more of the following:

  • No water right exists;
  • Granting the application would be detrimental to or impair existing water rights;
  • Granting the application would be contrary to the conservation of water within the state;
  • Granting the application would be detrimental to the public welfare of the state;
  • For a new appropriation, available information indicates that there is no unappropriated surface water.

NMSA 72-12-3.F.

19-NM-f.13 to NM-19-f.16 - Does NMOSE Approve the Application?

If the NMOSE denies the application, the process ends. However, even in the case of a hearing, the NMOSE may decide to approve the application. The State Engineer will issue a Permit to Use Underground Waters in Accordance with Sections 72-12-1.3 so long as the State Engineer finds that:

  • There are unappropriated waters;
  • The proposed appropriation would not impair existing water rights from the source;
  • The appropriation is not contrary to the conservation of water within the state; and
  • The appropriation is not detrimental to the public welfare of the state.

NMSA 72-12-3.E.

The state engineer may attach conditions to the permit as part of approval and the developer must abide by any such conditions.




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