TITLE 19 NATURAL
RESOURCES AND WILDLIFE
CHAPTER
27 UNDERGROUND WATER
PART 5 THE USE OF PUBLIC UNDERGROUND
WATERS FOR HOUSEHOLD OR OTHER DOMESTIC USE IN ACCORDANCE WITH SECTION 72-12-1.1
NMSA
19.27.5.1 ISSUING AGENCY: State
Engineer.
[19.27.5.1 NMAC - N, 8-15-2006]
19.27.5.2 SCOPE: The
requirements for the use of public underground waters in accordance with
Section 72-12-1.1 NMSA.
[19.27.5.2 NMAC - N, 8-15-2006]
19.27.5.3 STATUTORY AUTHORITY:
Section 72-12-1 NMSA provides that the water
of underground streams, channels, artesian basins, reservoirs or lakes, having
reasonably ascertainable boundaries, is declared to belong to the public and to
be subject to appropriation for beneficial use.
Section 72-12-1 NMSA further provides for the
limited use of relatively small amounts of public underground waters in the
irrigation of not to exceed one acre of noncommercial trees, lawn or garden,
and for household or other domestic use.
Section 72-12-1.1 NMSA sets
out the requirements for the filing of applications and the issuance of permits
for the use of public underground waters for the irrigation of not to exceed
one acre of noncommercial trees, lawn or garden, and for household or other
domestic use. Section 72-2-8 NMSA gives the state engineer authority to adopt
regulations to implement and enforce any provision of any law administered by
him.
[19.27.5.3 NMAC - N, 8-15-2006]
19.27.5.4 DURATION: Permanent.
[19.27.5.4 NMAC - N, 8-15-2006]
19.27.5.5 EFFECTIVE DATE:
August 15, 2006, unless a later date is cited at the end of a section.
[19.27.5.5 NMAC - N, 8-15-2006]
19.27.5.6 OBJECTIVE: To
update the existing regulations and establish new regulations for the use of
public underground waters for household or other domestic use in accordance
with Section 72-12-1.1 NMSA.
[19.27.5.6 NMAC - N, 8-15-2006]
19.27.5.7 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. 72-12-1.1 domestic well permit: A permit issued for domestic use in
accordance with Section 72-12-1.1 NMSA or its
predecessor statutes. Included in this
definition are 72-12-1.1 domestic well permits that have been adjudicated.
B. 72-12-1.1 domestic well: The point of diversion authorized under a
72-12-1.1 domestic well permit.
C. Administrative guidelines: A
compilation of policies and procedures intended to provide guidance to office
of the state engineer personnel for processing pending and future water rights
applications in a specifically defined geographic area. The administrative guidelines shall not limit
the state engineer's authority to take alternative or additional actions
relating to the management of the water resources of the specifically defined
geographic area as provided by New Mexico statutes, orders of the court, or the
written rules and regulations of the state engineer.
D. Association: A
water users association established under the Sanitary Projects Act (Section
3-29-2(B) NMSA).
E. 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.
F. Domestic use:
The use of water for household purposes or for the irrigation of not to
exceed one acre of noncommercial trees, lawn, garden, or landscaping. Drinking and sanitary uses that are
incidental to the operations of a governmental, commercial, or non-profit
facility are included in this definition.
This definition does not include the use of underground water from a
well used primarily for livestock watering as provided for under Section
72-12-1.2 NMSA.
G. Domestic well management area: A
bounded area overlying a stream-connected aquifer, specifically described by
section, township and range, or by other land survey descriptions, that
requires special water resource protection as determined by the state engineer.
H. Household: A single-family residence
including outbuildings such as guesthouses, barns, and sheds.
I. Hydrologic unit:
A physically definable, continuous and interconnected surface water or
groundwater system. A hydrologic unit
may consist of an aquifer, a group of interconnected aquifers, and any hydrologically connected springs, streams, rivers, lakes or
other surface water bodies.
J. Infrastructure capacity area: An area defined by an association, based on
factors determining the capacity to provide water, including, but not limited
to, the location of existing lines, adequacy of existing infrastructure, the
availability of water and water rights, and as reviewed by and then filed with
the state engineer.
[19.27.5.7 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.8 FEE SCHEDULE: An
application for permit shall be accompanied by one of the following filing
fees:
A. $125 for
an application for a 72-12-1.1 domestic well permit.
B. $75 for an application for permit for replacement
72-12-1.1 domestic well.
C. $125 for
an application for permit for supplemental 72-12-1.1 domestic well.
D. $75 for an application for permit to repair or
deepen a 72-12-1.1 domestic well.
E. $75 for
an application for permit to amend the type of domestic use authorized under a
72-12-1.1 domestic well permit.
F. $200 for an application for permit to
transfer a valid, existing water right into a 72-12-1.1 domestic well permit
pursuant to 19.27.5.10 NMAC.
[19.27.5.8 NMAC - N, 8-15-2006]
19.27.5.9 APPLICATION
FOR A 72-12-1.1 DOMESTIC WELL PERMIT: The following requirements
apply to applications filed for 72-12-1.1 domestic well permits. In addition to the requirements listed in
this section and part, the drilling of a 72-12-1.1 domestic well and the amount
and uses of water permitted are subject to such additional or more restrictive
limitations imposed by a court, or by lawful municipal or county ordinance.
A. Form - content: An application for a 72-12-1.1
domestic well permit shall be prepared on a form prescribed by the state
engineer. An application shall include
the following information: the name and mailing address of the applicant, the
type of domestic use being applied for, the number of households to be served,
the location of the proposed well, the name of the owner of the land on which
the well is to be drilled, the name and license number of the well driller (if
known), the proposed depth of the well, the outside diameter of the well
casing, and other information the state engineer deems necessary. The state engineer may require an application
to be accompanied by a deed or purchase contract and plat of survey on file
with the appropriate county.
B. Well location: The well location shall be
described using universal transverse mercator
(NAD 83), latitude and longitude, or the New Mexico
state plane coordinate system. In
addition, the well location shall be described by the lot and block number of
the lot where the well is to be located (if applicable). An application to drill a well on land owned
by another person, the state of New Mexico, the federal government, or another
entity shall be accompanied by written consent of the landowner.
C. Multiple use well: A
72-12-1.1 domestic well permit may be conditioned to allow the diversion of
water from an existing well previously permitted for livestock, irrigation, or
any other beneficial purpose of use other than domestic use. The diversion of water from a multiple use
well made pursuant to a 72-12-1.1 domestic well permit shall be separately
metered.
D. Amount of water: The drilling of a 72-12-1.1
domestic well and the amount and uses of water permitted are subject to such
additional or more restrictive limitations imposed by a court, or by lawful
municipal or county ordinance. The
maximum permitted diversion of water from a 72-12-1.1 domestic well that is not
subject to additional or more restrictive limitations shall be as follows:
(1) Single household: The
maximum permitted diversion of water from a 72-12-1.1 domestic well permitted
to serve one household shall be 1.0 acre-foot per annum, except in hydrologic
units where applicant can demonstrate to the satisfaction of the state engineer
that the combined diversion from domestic wells will not impair existing water
rights, then the maximum permitted diversion of water from a 72-12-1.1 domestic
well permitted to serve one household shall be 3.0 acre-foot per annum.
(2) Multiple households: The
maximum permitted diversion of water from a 72-12-1.1 domestic well permitted
to serve more than one household shall not exceed 1.0 acre-foot per annum per
household served. The maximum combined
diversion from a 72-12-1.1 domestic well serving three or more households shall
not exceed 3.0 acre-feet per annum. For
a 72-12-1.1 domestic well serving multiple households, the permit holder shall
file documentation with the state engineer listing the number of households
being served by the well, the owner’s contact information for each household
being served, and a description of the legal lot of record for each household
being served. A copy of a well share
agreement may be filed to support the claim that the 72-12-1.1 domestic well is
serving more than one household.
(3) Drinking and
sanitary uses that are incidental to the operations of a governmental,
commercial, or non-profit facility: The
maximum permitted diversion of water from a 72-12-1.1 domestic well permitted
for drinking and sanitary uses that are incidental to the operations of a
governmental, commercial, or non-profit facility shall not exceed 1.0 acre-foot
per annum. The state engineer shall not issue a permit for
this use unless the applicant demonstrates that no alternative water supply is
reasonably accessible or available.
Water may not be used under this type of 72-12-1.1 domestic well permit
for any commercial use such as the manufacture of a product, car wash, water
bottling, concrete batching, or the irrigation of crops grown for commercial
sale.
(4) Transfer
of a valid, existing water right into a 72-12-1.1 domestic well permit: The
applicant for or the owner of a 72-12-1.1 domestic well permit may apply to
transfer a valid, existing consumptive use water right into the 72-12-1.1
domestic well permit in accordance with Sections 72-5-23, 72-5-24, 72-12-3, and
72-12-7 NMSA, as applicable, for the purpose of
increasing the permitted diversion from the 72-12-1.1 domestic well.
E. Multiple 72-12-1.1 domestic well permits on a legal lot
of record: An application for a new 72-12-1.1 domestic
well permit where the proposed point of diversion is to be located on the same
legal lot of record as an operational 72-12-1.1 domestic well shall be treated
as an application for a supplemental well pursuant to Subsection B of
19.27.5.11 NMAC.
A legal lot of record is a
parcel of land that is created in a manner consistent with the zoning and
planning laws in place at the time the parcel is created.
F. 72-12-1.1 domestic well permit to accompany a house or other
dwelling constructed for sale: A
person or other entity planning to construct and sell a house or other dwelling
may apply for a 72-12-1.1 domestic well permit to provide water to the
dwelling. The permit holder may use
water under a 72-12-1.1 domestic well permit for activities directly related to
the construction of the dwelling only if the 72-12-1.1 domestic well permit is
specifically conditioned to allow such use of water from the well. Upon sale of the house or dwelling, the
permit holder shall provide the new owner notice in writing of the requirement
to file a change of ownership with the state engineer for the 72-12-1.1
domestic well permit. A copy of the
notice shall be filed at the office of the state engineer along with a copy of
the deed or other instrument of conveyance which conveyed the land upon which
the 72-12-1.1 domestic well is located.
At any one time, a person or other entity may not hold more than ten
72-12-1.1 domestic well permits for a well to accompany a house or other
dwelling constructed for sale. If a person
or other entity holds ten or more such 72-12-1.1 domestic well permits,
additional 72-12-1.1 domestic well permits will be issued as written notices
are filed on existing permits that reduce the number of such permits held by
the person or entity to less than ten.
[19.27.5.9 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.10 [RESERVED]
[19.27.5.10 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.11 OTHER
72-12-1.1 DOMESTIC WELL PERMIT APPLICATIONS: Other
72-12-1.1 domestic well permit applications may be made only as specifically
provided for in this section. Permit
applications made in accordance with this section
require an existing 72-12-1.1 domestic well permit in good standing. Applications shall be prepared on a form
prescribed by the state engineer and the applicant shall be the owner of record
of the 72-12-1.1 domestic well permit.
The description of the well location shall be made in accordance with
Subsection B of 19.27.5.9 NMAC. The publication of a legal notice is not
required for a permit application made in accordance with Subsection A, B, C,
or D of this section. A permit issued
pursuant to Subsections A, B, or C of this section for an existing 72-12-1.1
domestic well permit in good standing will not affect the maximum authorized
diversion amount from the 72-12-1.1 domestic well. No change may be made to the point of
diversion, place of use, or purpose of use authorized under a 72-12-1.1
domestic well permit except as provided for in Subsection E of this section.
A. Application for permit to replace a 72-12-1.1 domestic
well: A permit from the state engineer is required
to drill a replacement 72-12-1.1 domestic well.
The state engineer shall require the well being replaced to be plugged
or capped in accordance with the regulations of the office of the state
engineer. The replacement well shall be
permitted by the state engineer to serve the same authorized legal lot(s) of
record and to serve the same type of domestic use as the 72-12-1.1 domestic
well being replaced. An application shall
include the file number of the well to be replaced, the name and mailing
address of the applicant, the type of domestic use, the location of the
existing well, the proposed location of the replacement well, the name of the
owner of the land on which the replacement well is to be drilled, the name and
license number of the well driller (if known), the proposed depth of the
replacement well, the outside diameter of the replacement well casing, the
reason for replacing the well, and other information the state engineer deems
necessary. The state engineer may
require a meter on a replacement 72-12-1.1 domestic well as a condition of the
new permit.
B. Application for permit for supplemental 72-12-1.1
domestic well: A permit from the state engineer is required
to drill a supplemental 72-12-1.1 domestic well. The total combined diversion from the
72-12-1.1 domestic well and the supplemental well shall not exceed the maximum
diversion amount authorized under the 72-12-1.1 domestic well permit. An application shall include the name and
mailing address of the applicant, the type of domestic use, the state engineer
file number, the location of the existing well, the authorized maximum
diversion amount of the domestic well to be supplemented, the existing capacity
of the well to be supplemented, the proposed location of the supplemental well,
the name of the owner of the land on which the supplemental well is to be
drilled, the name and license number of the well driller (if known), the
proposed depth of the supplemental well, the outside diameter of the
supplemental well casing, and other information the state engineer deems
necessary. The state engineer shall
require the installation of a meter on both the supplemental well and the
72-12-1.1 domestic well being supplemented as a condition of the new permit.
C. Application for permit to repair or deepen a 72-12-1.1
domestic well: A permit from the state engineer is required
to repair or deepen a 72-12-1.1 domestic well.
A permit to repair a 72-12-1.1 domestic well is required for any type of
repair work involving the use of a drill rig.
A permit is not required for work on pumping equipment. An application shall include the state engineer
file number of the 72-12-1.1 domestic well to be deepened or repaired, the name
and mailing address of the permit holder, the location of the well, the name
and license number of the well driller (if known), a description of the work to
be performed, the proposed depth (if the application is for deepening the
well), and other information the state engineer deems necessary. The state engineer may require a meter on a
72-12-1.1 domestic well to be repaired or deepened as a condition of the new
permit.
D. Application for permit to amend the type of domestic use of a 72-12-1.1 domestic well permit: A permit from the state engineer is required
to amend the type of domestic use between single household, multiple household,
or drinking and sanitary uses that are incidental to the operations of a
governmental, commercial, or non-profit facility. An application shall include the state
engineer file number of the 72-12-1.1 domestic well permit, the name and
mailing address of the applicant, the current authorized type of domestic use,
the proposed type of domestic use, and other information deemed necessary by
the state engineer. The state engineer
may require a meter on a 72-12-1.1 domestic well as a condition of the new
permit when the type of domestic use is changed.
E. Change in point of diversion or alternate point of
diversion: The point of diversion of
a permitted, declared, or adjudicated 72-12-1.1 domestic well may be changed
only:
(1) pursuant to a water rights settlement
approved by the state engineer and a court, for those wells drilled prior to a date
specified and in a manner specifically authorized by the settlement, where such
settlement requires the plugging of each 72-12-1.1 domestic well for which the
point of diversion is changed and prohibits the drilling of new 72-12-1.1
domestic wells within the specifically described exclusive service area; or
(2) pursuant to
72-12-7 NMSA by an owner of a 72-12-1.1 domestic well
located within the infrastructure capacity area of an association, to change
the point of diversion into a well owned and operated by an association in
accordance with the following provisions:
(a)
the change in point of diversion shall be made upon application to the
state engineer and upon a showing that the change will not impair existing
rights and will not be contrary to conservation of water within the state and
will not be detrimental to the public welfare of the state; the application may
be granted only after notice and opportunity for hearing are provided as prescribed
by Subsection D of Section 72-12-3 NMSA;
(b)
an association that allows the point of diversion of a domestic well to
be changed to that of an association’s well shall file with the state engineer
at the time of application a map depicting the boundaries of the association’s
infrastructure capacity area and updated maps of any expansion of the
boundaries of the association’s infrastructure capacity area, if not already on
file;
(c)
only domestic wells located within the boundaries of the infrastructure
capacity area of the association that were permitted prior to the time the
association files its infrastructure capacity area boundaries or an update of
those boundaries with the state engineer may have their points of diversion
changed to the association’s point of diversion;
(d)
once the association files its infrastructure capacity area map or
updated map with the state engineer, the state engineer shall issue permits
only for new domestic wells to be located on property from which no domestic
well point of diversion has been previously changed; exceptions will be
considered only if necessitated by public health, safety and welfare concerns;
(e)
an association shall be listed as co-applicant
on the application.
[19.27.5.11 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.12 CHANGE
OF OWNERSHIP: In the event of any
change of ownership of a 72-12-1.1 domestic well permit the new owner shall
file a change of ownership form with the state engineer in accordance with
Section 72-1-2.1 NMSA. If the new owner fails to file a change of
ownership in a timely manner the state engineer may cancel the 72-12-1.1
domestic well permit. The state engineer
may provide written notice to a new owner of a 72-12-1.1 domestic well permit
of the requirement to file change of ownership.
[19.27.5.12 NMAC - N, 8-15-2006]
19.27.5.13 ACTION OF THE STATE ENGINEER: The
state engineer shall act on all applications that are properly filed.
A. Rejection
of application: The state engineer may reject an application
for a 72-12-1.1 domestic well permit when the proposed 72-12-1.1 domestic well
is to be located in an area where a restriction on the use of water or the
drilling of new wells has been imposed by a court. The state engineer may reject an application
for a 72-12-1.1 domestic well permit when the proposed 72-12-1.1 domestic well
is to be located in an area of water quality concern where a prohibition on or
a recommendation against the drilling of new wells has been established by a
government entity.
B. Approval of application - conditions of approval: The
state engineer may set forth conditions of approval for a 72-12-1.1 domestic
well permit, which may include any of the following:
(1) The casing shall not exceed 7 inches outside diameter except under
specific conditions in which reasons satisfactory to the state engineer are
shown.
(2) The well shall be set back a minimum of 50 feet from any existing well
of other ownership.
(3) If artesian water is encountered, all rules and regulations pertaining
to the drilling and casing of artesian wells shall be complied with except under
specific conditions in which reasons satisfactory to the state engineer are
shown.
(4) The well shall be constructed by a driller licensed in the state of New
Mexico. A licensed driller shall not be
required for the construction of a driven well when the outside diameter of the
casing does not exceed two and three-eighths (2⅜) inches.
(5) Pursuant to Section 72-8-1 NMSA, the permittee shall allow the state engineer and his representatives entry upon private property for the performance
of their respective duties, including access to the well for meter reading and
water level measurement.
(6) The drilling of the well and amount and uses of water permitted are
subject to such limitations as may be imposed by the courts or by lawful
municipal and county ordinances which are more restrictive than the conditions
of this permit and applicable state engineer regulations.
(7) This permit authorizes the drilling of a
well to accompany a house or other dwelling being constructed for sale. Water may only be diverted for activities
directly related to the construction of the dwelling that the well will
serve. Upon sale of the house or
dwelling, the permit holder shall provide the new owner notice in writing of
the requirement to file a change of ownership with the state engineer for the
72-12-1.1 domestic well permit. A copy
of the notice shall be filed at the office of the state engineer along with a
copy of the deed or other instrument of conveyance which conveyed the land upon
which the 72-12-1.1 domestic well is located.
This condition shall automatically expire when the office of the state
engineer accepts a change of ownership for filing in the name of the new owner
intending to divert water from the well.
No water may be diverted from the 72-12-1.1 domestic well by the new
owner until a change of ownership has been recorded at the office of the state
engineer.
(8) The
permit holder shall ensure that a well record has been filed with the state
engineer no later than twenty days after the completion of the well drilling.
(9) Any diversion of water made in excess of
the authorized maximum diversion amount in any calendar year shall be repaid with
twice the amount of the over-diversion during the following calendar year. Repayment shall be made by either: (a)
reducing the diversion during the following calendar year from the 72-12-1.1
domestic well that is the source of the over-diversion; or (b) acquiring or
leasing a valid, existing consumptive use water right in an amount equal to the
repayment amount and submitting to the state engineer for his approval a plan
for the proposed repayment during the following calendar year. The plan for the proposed repayment shall be
on a form prescribed by the state engineer.
(10) The
permit is subject to cancellation for non-compliance with the conditions of
approval or if otherwise not exercised in accordance with the terms of the permit.
(11) The right to divert water under this permit
is subject to curtailment by priority administration as implemented by the
state engineer or a court.
(12) A
72-12-1.1 domestic well permit shall automatically expire unless the well is
completed and the well record is filed with the state engineer within one year
of the date of issuance of the permit.
C. Metering requirements: When
a metering device is required by the state engineer on a 72-12-1.1 domestic
well, the totalizing meter shall be installed before the first branch of the
discharge line from the well. The meter
installation shall be in accordance with the specifications adopted by the
state engineer. The holder of the
72-12-1.1 domestic well permit shall file a meter installation and inspection
report with the office of the state engineer, documenting the make, model,
serial number, date of installation, and initial reading of the meter prior to
diversion of water. Pumping records for
the 3 proceeding calendar months shall be submitted to the appropriate state
engineer district office on or before the 10th of January, April,
July, and October of each year unless a different reporting period has been
established in the conditions of approval of the permit.
(1) The state engineer shall require a meter on each new 72-12-1.1 domestic
well permitted:
(a) within a domestic well management area;
(b) when a metering requirement is imposed by the courts;
(c) for drinking and sanitary domestic use that is incidental to
the operations of a governmental, commercial, or non-profit facility;
(d) for multiple households domestic use;
(e) as a supplemental
72-12-1.1 well; the 72-12-1.1 domestic well being supplemented shall also
require a meter; and
(f) as a multiple use well such that the diversion of water for domestic use
is separately metered.
(2) The state engineer may require a meter on a new 72-12-1.1 domestic
well:
(a) permitted for single household
domestic use;
(b) permitted to accompany a residence or other dwelling
constructed for sale;
(c) as a condition of a permit to repair or deepen a 72-12-1.1 domestic well;
(d) as a condition of a permit to amend the type of domestic use
of a 72-12-1.1 domestic well permit; or
(e) as
a condition of a permit to transfer a valid, existing water right to a
72-12-1.1 domestic well permit in accordance with subsection E of 19.27.5.14 NMAC.
D. Well setbacks: All new 72-12-1.1 domestic
wells shall be set back a minimum of 50 feet from an existing well of other
ownership unless a variance has been granted by the state engineer. The state engineer may grant a variance for a
replacement well or to allow for maximum spacing of the well from a source of
groundwater contamination. All 72-12-1.1
domestic wells shall be set back from potential sources of contamination in accordance
with the rules and regulations of the New Mexico environment department.
E. Well identification tag: The
state engineer may require that a 72-12-1.1 domestic well be tagged with a well
identification tag. If a well tag is
required, the tag shall be affixed in plain view and the permit holder shall be
responsible for maintaining the well identification tag.
F. Permit expiration: Each 72-12-1.1 domestic well
permit shall be conditioned by the state engineer to require the 72-12-1.1
domestic well be completed and a well record be filed with the state engineer
within one year of the date of issuance of the permit. A 72-12-1.1 domestic well permit shall
automatically expire unless the well is completed and the well record is filed
with the state engineer within one year of the date of issuance of the
permit. No extension of time shall be
granted by the state engineer, and if a 72-12-1.1 domestic well permit expires,
a new permit shall be obtained and the appropriate fee paid.
G. Well record: The well driller shall keep a
record of each well drilled as the work progresses. The well driller shall file a complete well
record with the state engineer and the permit holder no later than twenty (20)
days after completion of the well drilling.
A well log shall be filed for each hole drilled, including a drill hole
that does not encounter water. It is the
responsibility of the permit holder to ensure that the well record for the
72-12-1.1 domestic well has been properly filed with the state engineer.
[19.27.5.13 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.14 DOMESTIC
WELL MANAGEMENT AREA: As hydrologic conditions require, the state
engineer may declare all or part of a stream connected aquifer as a domestic
well management area to prevent impairment to valid, existing surface water
rights. The
additional protection of mined aquifers is managed by the state engineer
through the declaration of a critical management area and the development of
administrative guidelines for the critical management area.
A. Administrative guidelines: The state engineer shall develop
administrative guidelines for each declared domestic well management area. The administrative guidelines will be based
on the hydrologic conditions of the domestic well management area and the
valid, existing water rights located therein.
The administrative guidelines shall set forth the maximum diversion
amounts and other additional restrictions that will be conditioned on new
72-12-1.1 domestic well permits issued within the management area. Administrative guidelines for a domestic well
management area and accompanying maps shall be available at each district
office of the state engineer. The
administrative guidelines shall also be posted on the office of the state
engineer web-site (www.ose.state.nm.us).
B. Declaration of domestic well management area: The state engineer shall hold a public
meeting within the geographic area of a proposed domestic well management area
before he declares the area and adopts the administrative guidelines. Notice of the public meeting and a copy of
the draft administrative guidelines for the domestic well management area shall
be posted at the appropriate district office a minimum of 30 days prior to the
date of the meeting. Notice of the
public meeting and of the draft administrative guidelines will be published in
a newspaper of general circulation in the area being declared once a week for
three consecutive weeks, with final publication occurring not less than 10 days
before the date of the public meeting.
Persons who are or may be affected by the proposed declaration of the
domestic well management area may appear and comment. Written public comments on the proposed
domestic well management area and the administrative guidelines shall be filed
with the office of the state engineer on or before the date of the public
meeting. The additional restrictions and
maximum diversion amounts established for new 72-12-1.1 domestic well permits
in the draft administrative guidelines shall be adopted by the state engineer
on an interim basis. The interim period
shall start on the day the draft administrative guidelines are posted for
public inspection and shall end on the day the state engineer adopts the
administrative guidelines or otherwise signs an order canceling the interim
period. Any changes made to the
administrative guidelines during the interim period, including a change in the
geographic area of a domestic well management area, shall be applied
retroactively to each new 72-12-1.1 domestic well permit issued within the
domestic well management area during the interim period.
C. Amount of water:
Except as otherwise provided or restricted in Paragraph (2) of
Subsection C, and Subsections D and E of this section, the maximum diversion of
water from a new 72-12-1.1 domestic well within a domestic well management area
shall not exceed 0.25 acre-foot per annum.
The state engineer may establish a maximum diversion amount for a new
72-12-1.1 domestic well in a domestic well management area that is less than 0.25 acre-foot per annum.
(1) Single household: The maximum permitted diversion of water from
a new 72-12-1.1 domestic well permitted to serve one household shall not exceed
0.25 acre-foot per annum.
(2) Multiple
household: The maximum
permitted diversion of water from a 72-12-1.1 domestic well permitted to serve
more than one household shall not exceed 0.25 acre-foot per annum per household
served. The maximum combined diversion
from such a 72-12-1.1 domestic well shall not exceed 3.0 acre-feet per annum. For a 72-12-1.1 domestic well serving
multiple households, the permit holder shall file documentation with the state
engineer listing the number of households being served by the well, the owner’s
contact information for each household being served, and a description of the
legal lot of record for each household being served. A copy of a well share agreement may be filed
to support the claim that the 72-12-1.1 domestic well is serving more than one
household.
(3) Drinking
and sanitary uses that are incidental to the operations of a governmental,
commercial, or non-profit facility:
The maximum permitted diversion of water from a 72-12-1.1 domestic well
permitted for drinking and sanitary uses that are incidental to the operations
of a governmental, commercial, or non-profit facility shall not exceed 0.25 acre-foot per annum.
The state engineer shall not issue a permit for this use unless the
applicant demonstrates that no alternative water supply is reasonably
accessible or available. Water may not
be used under this type of permit for any commercial use such as the
manufacture of a product, car wash, water bottling, concrete batching, or
irrigation of crops grown for commercial sale.
D. Transfer of a valid, existing water right to a 72-12-1.1
domestic well permit: The
applicant for a new 72-12-1.1 domestic well permit or the holder of an existing
72-12-1.1 domestic well permit may apply to transfer a valid, existing
consumptive use water right into the 72-12-1.1 domestic well permit in
accordance with Subsection E of 19.27.5.14 NMAC. Only
a valid, existing, consumptive use water right located within the domestic well
management area may be transferred.
E. Application for permit to transfer a
valid, existing water right into a 72-12-1.1 domestic well permit - maximum
diversion of water from the 72-12-1.1 domestic well not to exceed one acre-foot
per annum: The
applicant for or the owner of a 72-12-1.1 domestic well permit may apply to
transfer a valid, existing consumptive use water right into the 72-12-1.1
domestic well permit for the purpose of increasing the maximum diversion of
underground water up to an amount of water not to exceed one acre-foot per
annum. The water right to be transferred
shall be from the same hydrologic unit that will be impacted by the diversion
of water from the 72-12-1.1 domestic well.
The determination of whether a proposed transfer of a water right is
occurring within the same hydrologic unit shall be made by the office of the
state engineer. For a 72-12-1.1 domestic
well permit located within a domestic well management area or other geographic
area specifically defined in a state engineer order or administrative
guidelines, only a valid, existing consumptive use water right located within
the domestic well management area or other specifically defined geographic area
may be transferred.
(1) Form - content: Applications shall be prepared 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 number(s), 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 to be
retired, the consumptive use amount to be transferred, the move-from purpose of
use, the legal description of the move-from place of use, the location of the
move-from point of diversion, the location of move-to point of diversion, and
other information the state engineer deems necessary. An application for a change in point of
diversion or place or purpose of use of a water right into or out of an acequia or community ditch subject to Sections 73-2-1
through 73-2-68 NMSA or 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.
(2) Well location: The description of the well location shall be
made in accordance with Subsection B of 19.27.5.9 NMAC.
(3) Transfer process: Consistent with the issuance of a 72-12-1.1
domestic well permit pursuant to Section 72-12-1.1 NMSA,
public notice is not required nor protest allowed for an application for permit
to transfer a valid, existing consumptive use water right into a 72-12-1.1
domestic well permit for the purpose of increasing the maximum diversion of
underground water up to an amount of water not to exceed one acre-foot per
annum. However, with such transfer
applications, documentation shall be provided by the applicant, pursuant to
Section 72-5-24.1 NMSA. In all other respects, the application for
such a transfer shall be processed in a manner consistent with Section 72-12-3 NMSA and no change may be made to the point of diversion,
place of use, or purpose of use authorized under such a permit except as
provided for in Subsection E of 19.27.5.11 NMAC.
[19.27.5.14 NMAC - N, 8-15-2006; A,
10-31-2011]
19.27.5.15 ENFORCEMENT: The
holder of a 72-12-1.1 domestic well permit is subject to possible fines and
remedial action including cancellation of the permit for any failure to comply
with the terms and conditions of the 72-12-1.1 domestic well permit or any
applicable provision of 19.27.5 NMAC or Chapter 72 NMSA.
A. Diversion of water in excess of the authorized maximum
diversion amount: The holder of a 72-12-1.1 domestic well
permit who diverts water in excess of the authorized maximum diversion amount
in any calendar year shall repay twice the amount of the over-diversion during
the following calendar year. Repayment
shall be made by either:
(1) reducing
diversions during the following calendar year from the 72-12-1.1 domestic well
that is the source of the over-diversion; or
(2) acquiring or
leasing a valid, existing consumptive use water right in an amount equal to the
repayment amount and submitting to the state engineer for his approval a plan
for the proposed repayment during the following calendar year on a form
prescribed by the state engineer; such repayment water shall be derived from
either:
(a) reduction of the consumptive use
associated with the actual average historic use of a valid, existing water
right with an irrigation purpose of use, by fallowing of a specific tract of
land that has been consistently historically irrigated; or
(b) reduction of the
diversion and associated historical average consumptive use of a valid water
right with a purpose of use other than irrigation.
B. Active water resource management: In any water district or subdistrict
declared by the state engineer in accordance with Section 72-3-2 NMSA, and for which district or subdistrict
the state engineer has adopted final district specific regulations in
accordance with 19.25.13.10 and 19.25.13.23 NMAC, the
water master shall have authority to curtail out-of-priority outdoor domestic
uses consistent with the district or subdistrict
specific rules.
C. Cancellation of permit: The state engineer may cancel a 72-12-1.1
domestic well permit upon failure of a permit holder to comply with any permit
condition of approval or any applicable provision of 19.27.5 NMAC or Chapter 72 NMSA. The state engineer may cancel a 72-12-1.1
domestic well permit and proceed with enforcement action if a permit holder
diverts water in excess of the authorized maximum amount and fails to repay the
over-diversion in a time and manner acceptable to the state engineer.
[19.27.5.15 NMAC - N, 8-15-2006; A, 10-31-2011]
19.27.5.16 APPEAL PROCESS: In
accordance with Section 72-2-16 NMSA, if, without
holding a hearing, the state engineer enters a decision, any person aggrieved
by the decision is entitled to a hearing, if a request for a hearing is made in
writing within thirty days of receipt of notice of the decision from the state
engineer. Hearings shall be held before
the state engineer or his appointed examiner pursuant to 19.25.2 NMAC. No appeal
shall be taken to the district court until the state engineer has held a
hearing and entered his decision in the hearing.
[19.27.5.16 NMAC - N, 8-15-2006]
19.27.5.17 LIBERAL CONSTRUCTION: This
part shall be liberally construed to carry out its purpose.
[19.27.5.17 NMAC - N, 8-15-2006]
19.27.5.18 SEVERABILITY: If
any portion of 19.27.5 NMAC is found to be invalid,
the remaining portion of 19.27.5 NMAC shall remain in
force and not be affected.
[19.27.5.18 NMAC - N, 8-15-2006]
HISTORY OF
19.27.5 NMAC:
Pre NMAC History: The
material in this part was derived from that previously filed with the State
Records Center and Archives.
SE-66-1, Rules and
Regulations Governing Drilling of Wells and Appropriation and Use of Ground
Water in New Mexico, Article 1-15, Applications Not Requiring Publication and
Notice - Domestic and Livestock Use - Amount; Article 1-16, Retention of Old
Well for Domestic Use - Requirements, originally filed with the Supreme Court
Law Library 11/1/66. Filed with the State
Records Center 6/27/91.
Amendment 21 to
SE-66-1, Article 1-15, Applications Not Requiring Publication of Notice;
1-15.1, Qualified Applicant; 1-15.2, Amount of Water; 1-15.3, Purpose of Use;
1-15.4, Multiple Residential Use; 1-15.5, Well to be Drilled for Buildings or
Dwelling Units Constructed For Sale; 1-15.7, Permits Requiring Installation of
a Meter; 1-15.8, Limitations Under Court Decrees; Article 1-16, Retention of
Old Well for Domestic Use - Requirements; filed with the State Records Center
7/29/83.
History of Repealed Material:
SE-66-1, Rules and
Regulations Governing Drilling of Wells and Appropriation and Use of Ground
Water in New Mexico, Article 1-15, Applications Not
Requiring Publication of a Notice; 1-15.1, Qualified Applicant; 1-15.2, Amount
of Water; 1-15.3, Purpose of Use; 1-15.4, Multiple Residential Use; 1-15.5,
Well to be Drilled for Buildings or Dwelling Units Constructed For Sale;
1-15.7, Permits Requiring Installation of a Meter; 1-15.8, Limitations Under
Court Decrees; Article 1-16, Retention of Old Well for Domestic Use -
Requirements, filed 7/29/83 - Repealed 8/15/2006.