New Mexico Permit to Appropriate Water (19-NM-h)
- The first appropriator in time has the right to take and use water; and
- That right continues against subsequent users as long as the appropriator puts the water to beneficial use.
Most of the water in New Mexico has been fully appropriated, however, if an appropriator ceases using water beneficially for four years the water becomes available to other appropriators. NMSA 72-12-8. Surface and groundwater rights are under the jurisdiction of the New Mexico Office of the State Engineer (NMOSE).
Pursuant to NMSA 72-5-1, any person, association or corporation intending to acquire the right to the beneficial use of any waters, must submit an application to NMOSE for a permit to appropriate. “Beneficial use” is defined as the direct use or storage and use of water by man for a beneficial purpose including, but not limited to, agriculture, 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.” NMAC 184.108.40.206(D).
Ground WaterThe water of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries in New Mexico have been declared public and are subject to appropriation for beneficial use. NMSA 72-12-1. The NMOSE has jurisdiction over groundwater after a groundwater basin has been “declared” to have reasonably ascertainable boundaries. Today, over 99% of New Mexico’s groundwater is under NMOSE’s jurisdiction. Most of New Mexico’s groundwater has been fully appropriated, but new appropriations of groundwater still occur.
Permit to Appropriate Water Process
19-NM-h.1 to 19-NM-h.3 – Is the Developer Appropriating Surface Water?
If the developer is appropriating surface water, then they will be required to provide Notice of Intention to Make a Formal Application for Permit to Appropriate Surface Water. The published notice establishes priority of application. The application must be prepared and submitted within one year of the date of filing the notice. NMAC 220.127.116.11.
If NMOSE determines that there is no unappropriated surface water available for the project, then the NMOSE must reject or refuse the notice of intention. NMAC 18.104.22.168(C).
19-NM-h.4 – Application for Permit to Appropriate
The developer is required to submit an Application for Permit to Appropriate on the form provided by NMOSE. Except when a notice of intention is filed, the date of filing of an application for Permit to Appropriate establishes the priority of application. NMAC 22.214.171.124.
The application must include the following information:
- The name and address of the developer;
- 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. NMAC 126.96.36.199.
If the well is to be drilled within the boundaries of a declared groundwater basin, then three copies of an Application for Permit to Appropriate Water must be filed with NMOSE with the necessary filing fee. The date the developer files the application with NMOSE establishes the original priority date of any application, subject to the acceptance of the application and the issuance of a permit by NMOSE. NMAC 188.8.131.52.
Before NMOSE can accept an application, it must conform to the applicable requirements of the statutes and rules and regulations. The description of the well location must be to the nearest 40 acre subdivision, unless otherwise required by NMOSE. The developer must include the following information in the application:
- The particular underground stream, channel, artesian basin, reservoir or lake from which water will be appropriated;
- The beneficial use to which the water will be applied;
- The location of the proposed well;
- The name of the owner of the land on which the well will be located;
- The amount of water applied for;
- The place of the use for which the water is desired; and
- If the use is for irrigation, the description of the land to be irrigated and the name of the owner of the land. NMSA 72-12-3(A).
If the well will be located on privately owned land and the developer is not the owner of the land or the owner or the lessee of the mineral rights under the land, the application must be accompanied by an acknowledged statement executed by the owner of the land that the developer is granted access across the owner’s land to the drilling site and has permission to occupy such portion of the owner’s land as is necessary to drill and operate the well. NMSA 72-12-2.
19-NM-h.5 to 19-NM-h.6 – Review Application Materials for Completeness
NMOSE will review application materials to ensure completeness. If NMOSE determines that the application is defective, it must return the application to the developer with a statement of the changes required. The application must be returned to the developer with a statement of the corrections, amendments, or changes required, within 30 days after its receipt. The developer has 60 days to refile the application from the date of return. NMSA 72-5-3. Submitting the application establishes the priority date for the water right.
The initial review procedures for groundwater rights are the same as those for surface water rights. If the changes are made and the application is refiled with NMOSE within 30 days after the developer has been notified of the changes required, the application must be processed with a priority date the same as the original filing date. NMAC 184.108.40.206.
19-NM-h.7 - Prepare Public Notice of Application
NMOSE will prepare public notice of the application for the developer. The developer is responsible for publishing that notice.
19-NM-h.8 – Provide Public Notice of Application
The developer is required to publish public notice of the application 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 once a week for three consecutive weeks. NMAC 220.127.116.11(C).
The public notice must give all essential facts as to the appropriation, including:
- The places of appropriation and of use;
- Amount of water;
- The purpose for which the water will be used;
- The name and address of the developer; and
- The time when the application must be taken up by NMOSE for consideration.
The developer is required to provide public notice of their application to appropriate groundwater weekly for three consecutive weeks in a newspaper of general circulation within the county in which the well is to be drilled. NMOSE will provide the developer with detailed instructions on the requirements for public notice after the application has been received. NMAC 18.104.22.168.
19-NM-h.9 – Affidavit of Publication
The developer is required to file an affidavit of publication with NMOSE within 60 days of the notice. Failure to file proof of publication with NMOSE will result in the application being cancelled. NMAC 22.214.171.124(C) and NMAC 126.96.36.199.
19-NM-h.10 – Comment on Application
Any person, firm, corporation or other entity may object to the granting of an application if it will impair their water rights or will be contrary to the conservation of water within the state or detrimental to the public welfare of the state. The objector must show that they will be substantially and specifically affected by the granting of the application. NMAC 188.8.131.52(E). All objections and protests must be filed within 10 business days following publication of the final notice. NMAC 184.108.40.206(E)(1) and NMAC 220.127.116.11.
19-NM-h.11 – Have any Protests been Filed on the Application?
Any person, firm, corporation or other entity objecting that the granting of the application will impair the objector’s water rights must have standing to file objections or protests. NMAC 18.104.22.168(E) and NMAC 22.214.171.124. All objections and protests must set forth the grounds for asserting standing. All objections and protests must be filed with NMOSE not later than 10 calendar days after the date of the last publication of the notice. NMAC 126.96.36.199(E)(1) and NMAC 188.8.131.52.
19-NM-h.12 to 19-NM-h.14 – Is a Public Hearing Necessary?
NMOSE encourages the developer to negotiate with any objector to resolve any protests. If the developer and objector are unable to reach an agreement, then the matter may proceed to a public hearing.
NMOSE may determine prior to the hearing that the application should be denied, or may approve the application subject to conditions resulting from the objections. NMAC 184.108.40.206(E)(3). NMOSE may deny a protested application for appropriation of surface water 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; or
- For a new appropriation, available information indicates that there is no unappropriated surface water.
19-NM-h.15 – Does NMOSE Accept the Application?
NMOSE may accept a proposed appropriation if it is not contrary to the conservation of water within the state and is not detrimental to the public welfare. NMSA 72-5-6.
19-NM-h.16 – Provide Notice of the Decision on Application
NMOSE is required to provide notice of decision on an application to the developer.
19-NM-h.17 – Permit for Appropriation of New Water Right
Once the NMOSE approves an application, the application becomes a permit. The permit allows the developer to place water to beneficial use in accordance with the permit conditions of approval. NMAC 220.127.116.11.
19-NM-h.18 – Did the Developer Appropriate Surface Water?
If the developer has appropriated a surface water right, then they may be required to establish a Water Replacement Plan.
19-NM-h.19 to 19-NM-h.21 – Is a Water Replacement Plan Necessary?
The developer may be required to establish a Water Replacement Plan to offset surface water depletions attributable to the developer’s use of their water right. Replacement Plans are required when the developer’s water right is subject to the priority of a different water right. The developer may work in conjunction with the owner of the priority water right to develop the Water Replacement Plan. The developer should seek the assistance of NMOSE to determine whether such a Replacement Plan is necessary for the project. NMAC 19.25.13(C)(3)(d). NMOSE may approve a Replacement Plan that is based on the adopted generalized hydrologic analysis. Any approved Replacement Plan must provide sufficient replacement water to fully offset depletions to surface waters caused by the developer’s project. NMAC 19.25.13.
The application for approval of a Water Replacement Plan must contain the following information:
- The name and address of the developer;
- The location, amount, and priority date of the developer’s existing administrable water right;
- Each source of replacement water and the amount of historic consumptive use related to the water right that is the source of replacement water, to be established by documentation satisfactory to NMOSE;
- An estimate of the amount of water to be diverted by the developer;
- A map acceptable to NMOSE showing the source and point of diversion of the replacement water and the location of the proposed use;
- A copy of an agreement between the developer and the owner of water to be used as replacement water, or other documentation demonstrating to NMOSE’s satisfaction that the developer has a legal entitlement to a source of water to be used as replacement water;
- The expected duration of the plan; and
- Any other information that NMOSE deems necessary. NMAC 18.104.22.168.
19-NM-h.22 – Provide Notice of Replacement Plan Approval
NMOSE is required to publish public notice of approval of any Replacement Plan within 30 days of approval. NMAC 22.214.171.124. NMOSE must hear any objections to the Water Replacement Plan. NMOSE may establish conditions for Replacement Plan approval based on valid objections.
19-NM-h.23 – Proceed with Use of Water Under Permit Conditions
Once the developer has obtained the required permit, and an approved Replacement Plan as necessary, they may begin to use water under permit conditions.
19-NM-h.24 – Proof of Application of Water to Beneficial Use
The developer must file with NMOSE Proof of Application of Water to Beneficial Use on or before the due date set by the permit. NMAC 126.96.36.199(B). The beneficial use of water must be in accordance with the permit conditions of approval. Once a the developer files a Proof of Application of Water to Beneficial Use, the water right must be limited to the amount of water that has been put to beneficial use, and no further development of the water right may occur. NMAC 188.8.131.52(B).
If the developer is unable to construct the necessary works or apply the water to beneficial use within the time frame provided in the permit, then they may request an extension of time from NMOSE. NMAC 184.108.40.206(C). The application requesting additional time must state the reasons for the request, 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. An extension of time may be approved for no longer than 3 years. NMAC 220.127.116.11(C).
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