2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-3 - Application for use of underground water; publication of notice; permit.

A. Any person, firm or corporation or any other entity desiring to appropriate for beneficial use any of the waters described in Chapter 72, Article 12 NMSA 1978 shall apply to the state engineer in a form prescribed by the state engineer. In the application, the applicant shall designate:
(1) the particular underground stream, channel, artesian basin, reservoir or lake from which water will be appropriated;
(2) the beneficial use to which the water will be applied;
(3) the location of the proposed well;
(4) the name of the owner of the land on which the well will be located;
(5) the amount of water applied for;
(6) the place of the use for which the water is desired; and
(7) if the use is for irrigation, the description of the land to be irrigated and the name of the owner of the land.
B. If the well will be located on privately owned land and the applicant is not the owner of the land or the owner or the lessee of the mineral or oil and gas rights under the land, the application shall be accompanied by an acknowledged statement executed by the owner of the land that the applicant 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. This subsection does not apply to the state or any of its political subdivisions. If the application is approved, the applicant shall have the permit and statement, executed by the owner of the land, recorded in the office of the county clerk of the county in which the land is located.
C. No application shall be accepted by the state engineer unless it is accompanied by all the information required by Subsections A and B of this section.
D. Upon the filing of an application, the state engineer shall proceed in accordance with the provisions of Section 1 [72-2-20 NMSA1978] of this 2019 act regarding notice of the application. Any person, firm or corporation or other entity objecting that the granting of the application will impair the objector's water right shall have standing to file objections or protests. Any person, firm or corporation or other entity objecting that the 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; provided, however, that the state or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions shall have standing to file objections or protests.
E. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if the state engineer finds that there are in the underground stream, channel, artesian basin, reservoir or lake unappropriated waters and that the proposed appropriation would not impair existing water rights from the source, is not contrary to conservation of water within the state and is not detrimental to the public welfare of the state, grant the application and issue a permit to the applicant to appropriate all or a part of the waters applied for, subject to the rights of all prior appropriators from the source.
F. If objections or protests have been filed within the time prescribed in the notice or if the state engineer is of the opinion that the permit should not be issued, the state engineer may deny the application without a hearing or, before the state engineer acts on the application, may order that a hearing be held. The state engineer shall notify the applicant of the action by certified mail sent to the address shown in the application.
History:
Laws 1931, ch. 131, § 3; 1941 Comp., § 77-1103; Laws 1943, ch. 70, § 1; 1953 Comp., § 75-11-3; Laws 1967, ch. 308, § 2; 1971, ch. 134, § 3; 1983, ch. 2, § 2; 1985, ch. 201, § 7; 2001, ch. 26, § 2; 2019, ch. 88, § 6.
ANNOTATIONS
Compiler's notes.
— For cases dealing with applications for use of underground water,
see
notes to 72-12-1 NMSA 1978.
Cross references.
— For penalty for using or appropriating water without permit required hereunder,
see
72-12-11 NMSA 1978.
For replacement wells,
see
72-12-22, 72-12-23 NMSA 1978.
For supplemental wells,
see
72-12-24 NMSA 1978.
For applications for the transportation and use of public waters outside the state,
see
72-12B-1 NMSA 1978.
For appeal de novo from decision, act or refusal to act of state executive officer or body in matters relating to water rights,
see
N.M. Const., art. XVI, § 5.
For publication of legal notice,
see
14-11-1 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
The 2019 amendment,
effective July 1, 2019, removed certain notice provisions and directed the state engineer to proceed under the new notice provisions of Section 72-2-20 NMSA 1978; and in Subsection D, deleted "cause to be published in a newspaper that is published and distributed in the county where the well will be located and in each county where the water will be or has been put to beneficial use or where other water rights may be affected or if there is no such newspaper, then in some newspaper of general circulation in the county in which the well will be located at least once a week for three consecutive weeks, a notice that the application has been filed and that objections to the granting of the application may be filed within ten days after the last publication of the notice" and added "proceed in accordance with the provisions of Section 1 of this 2019 act regarding notice of the application".
The 2001 amendment,
effective June 15, 2001, inserted the proviso in Subsection D that requires public notification of a water appropriation in the county of that appropriation.
The 1985 amendment
inserted "or any other entity" preceding "desiring to appropriate for" and substituted "beneficial use" for "irrigation or industrial uses" in the first sentence of the introductory paragraph in Subsection A, inserted "place of the" preceding "use for which" in Subsection A(6), and added the second, third and fourth sentences in Subsection D.
Constitutionality.
— Amendment requiring landowner's permission to use land to operate well was constitutional and valid.
City of Hobbs v. State ex rel. Reynolds
, 1970-NMSC-133, 82 N.M. 102, 476 P.2d 500.
The 1967 amendment which permitted removal of proceeding for application for use of underground water from jurisdiction of state engineer and placing of such proceeding within original jurisdiction of the courts (since deleted by 1971 rewriting of this section) was unconstitutional as violative of separation of powers doctrine of N.M. Const., art. III, § 1; it was not validated by subsequent constitutional amendment which neither expressly nor impliedly ratified it, nor was it passed in anticipation of the subsequent constitutional amendment.
City of Hobbs v. State ex rel. Reynolds
, 1970-NMSC-133, 82 N.M. 102, 476 P.2d 500;
Fellows v. Shultz
, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
Laws 1927, ch. 182, § 5 (now repealed), providing for administration of act as to any underground waters upon petition signed by ten percent of users of such waters, did not delegate legislative power to petitioners in violation of N.M. Const., art. IV, § 1.
Yeo v. Tweedy
, 1929-NMSC-033, 34 N.M. 611, 286 P. 970.
Interstate usage of water can be controlled to same extent as intrastate usage.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 563 F. Supp. 379 (D.N.M. 1983).
Total ban on interstate transportation of ground water cannot be supported.
— Taken as a whole, New Mexico's scheme of water regulation demonstrates a genuine effort to promote optimum utilization of its diminishing water resources. This effort, which is unquestionably legitimate and highly important, may justify limited, nondiscriminatory burdens on interstate commerce, but cannot support a total ban on the interstate transportation of ground water.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 563 F. Supp. 379 (D.N.M. 1983).
Municipal corporations are embraced in term "any corporation".
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Purpose of notice.
— Principal underlying statutory requirement of application, notice and hearing is to insure that change proposed in application will not impair rights of other appropriators.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Authority of state engineer is limited to public water,
and so far as his denial of an application was based upon finding of impairment of rights of Pecos river appropriators or other (privately owned) drain rights, his action was founded upon an error of law.
Reynolds v. Wiggins
, 1964-NMSC-252, 74 N.M. 670, 397 P.2d 469.
Jurisdiction and duties of state engineer with reference to streams and underground waters relates to public waters, subject to use by prior appropriators.
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Water not already appropriated.
— State engineer can only grant permits to appropriate waters which are not already appropriated.
Templeton v. Pecos Valley Artesian Conservancy Dist.
, 1958-NMSC-131, 65 N.M. 59, 332 P.2d 465.
In determining whether to issue permit
, the state engineer considers the applicant's application and grants it if there are unappropriated waters or if the proposed appropriation would not impair existing water rights from the source, is not contrary to the conservation of water within the state, and is not detrimental to the public welfare of the state.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Claim outside jurisdiction of state engineer.
— Claim of city that it owned appropriative right of such nature that it did not legally require the very permit for which application was made, is not contemplated by this section and for this reason alone could not lawfully have been considered by state engineer.
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
State engineer has authority to approve application subject to conditions.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Power to impose suitable conditions is inherent in broader power to prohibit and may also be expressly covered by portion of this section providing that, under conditions set out, state engineer shall grant application and issue permit to applicant to appropriate "all or a part of the waters applied for."
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Authority to specify method of meeting conditions.
— Having authority to condition approval, state engineer has authority to specify how condition is to be met under statute then in force.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Applicant for underground water permit was not entitled to a post-decision evidentiary hearing.
— Where applicant, after being denied an application for a permit to appropriate underground water from the San Agustin basin in 2007, filed with the state engineer a corrected application for a permit to appropriate the same underground water from the Rio Grande underground water basin in 2014, and where the state engineer denied the 2014 application, adopting the hearing officer's findings that although the 2014 application met the minimum requirements of 72-12-3 NMSA 1978 and was sufficiently different from the previous iteration so as not to be barred under the principle of res judicata, the permit would deprive the public of its right to appropriate water for beneficial use, and where applicant filed a motion for a post-decision hearing pursuant to 72-2-16 NMSA 1978, arguing that it was entitled to an evidentiary hearing, the district court did not err in determining that applicant was not entitled to a post-decision evidentiary hearing, because applicant was provided the necessary and appropriate process in a summary judgment hearing before the state engineer rendered its decision. An applicant is not entitled to an evidentiary hearing in every circumstance; a party only has a statutory right to a post-decision hearing if certain preconditions are met and if an adverse decision was entered without a prior hearing.
Augustin Plains Ranch v. D'Antonio
, 2023-NMCA-001, cert. denied.
District court's decision denying application for permit to appropriate groundwater was supported by the evidence.
— Where plaintiff, a limited liability company formed to obtain water for the Campbell ranch master plan project, a multiple use development consisting of four villages with residential, commercial, and resort elements spread among Bernalillo county, Sandoval county, and Santa Fe county, sought a permit to appropriate groundwater from the Sandia underground water basin, the district court did not err in denying plaintiff's request to appropriate water from the Sandia basin, because testimony that approximately 100 existing wells would be impaired and that predicted higher temperatures and severe droughts were likely to have a negative effect on the supply of water in the next fifty years supported the district court's decision that the magnitude of likely impairment to existing water rights was significant and that the application was contrary to conservation of water.
Aquifer Science, LLC v. Verhines
, 2023-NMCA-020, cert. denied.
District court abused its discretion in applying collateral estoppel to corrected application.
— Where applicant, after being denied an application for a permit to appropriate underground water from the San Agustin basin in 2007, filed with the state engineer a corrected application for a permit to appropriate the same underground water from the Rio Grande underground water basin in 2014, and where the state engineer denied the 2014 application, adopting the hearing officer's findings that although the 2014 application met the minimum requirements of 72-12-3 NMSA 1978 and was sufficiently different from the previous iteration so as not to be barred under the principle of res judicata, the permit would deprive the public of its right to appropriate water for beneficial use, the district court abused its discretion in determining that the 2014 application was barred by collateral estoppel and in denying the application with prejudice, because collateral estoppel is an equitable doctrine, and based on the prior determination that applicant could file a new application that addressed the facial insufficiencies of the 2007 application and the state engineer's policy of allowing corrected applications, it was fundamentally unfair to refuse to assess the facial adequacy of the more detailed 2014 application.
Augustin Plains Ranch v. D'Antonio
, 2023-NMCA-001, cert. denied.
District court exceeded its appellate jurisdiction in dismissing application with prejudice.
— Where applicant, after being denied an application for a permit to appropriate underground water from the San Agustin basin in 2007, filed with the state engineer a corrected application for a permit to appropriate the same underground water from the Rio Grande underground water basin in 2014, and where the state engineer denied the 2014 application, adopting the hearing officer's findings that although the 2014 application met the minimum requirements of 72-12-3 NMSA 1978 and was sufficiently different from the previous iteration so as not to be barred under the principle of res judicata, the permit would deprive the public of its right to appropriate water for beneficial use, and where applicant filed a motion for a post-decision hearing, arguing that it was entitled to an evidentiary hearing, and where the district court determined that the 2014 application was barred by collateral estoppel and dismissed the application with prejudice, the district court exceeded its appellate jurisdiction by examining the merits of the 2014 application. In the appellate capacity, it was not within the province of the district court to act upon the application itself, but to review the decision of the hearing officer for the state engineer.
Augustin Plains Ranch v. D'Antonio
, 2023-NMCA-001, cert. denied.
Consideration of prior appropriations.
— Although state engineer cannot conduct proceeding to adjudicate priorities of water rights, each time a permit is granted, he must consider all prior appropriations to determine whether or not there are any unappropriated waters; to that extent, he is required to consider prior appropriations.
Templeton v. Pecos Valley Artesian Conservancy Dist.
, 1958-NMSC-131, 65 N.M. 59, 332 P.2d 465.
Duty to determine question of impairment.
— In reaching decision in connection with application, state engineer has positive duty to determine whether existing rights would be impaired.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Impairment dependent on facts.
— Whether there is an impairment of existing water rights depends upon the facts of each case.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
No "water right" arises from private property pond.
— Nowhere in Chapter 72, Article 12, is there any indication that a "water right" subject to impairment, and which provides standing to protest another's application for a permit, arises from the mere existence of a pond on private property.
Town of Silver City v. Scartaccini
, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177.
Source of pond water.
— Unless shown otherwise by the person claiming some sort of a private right, the source of pond water, if no surface source is shown, is presumed to be underground water that is shared by other members of the public within the hydrologic model boundary.
Town of Silver City v. Scartaccini
, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177.
Applicants for use of underground water have burden of proving
that unappropriated water is available and that granting of their applications will not impair existing rights.
McBee v. Reynolds
, 1965-NMSC-007, 74 N.M. 783, 399 P.2d 110.
City as applicant for appropriation has burden of proving that its proposed well field would not impair existing rights.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Lowering of wells not necessarily impairment.
— Finding that lowering of wells as result of city's appropriation of water would be of "negligible effect" on surrounding artesian wells did not require determination, as matter of law, that chemical quality of water in protestant's artesian wells would be impaired by lowering of water level in those wells by less than 0.16 feet.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Name on application.
— Application for permit to appropriate public waters need not be in name of particular person or names of all standing to benefit from beneficial use of such waters.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Priority of right.
— Landowner who lawfully began developing underground water right and completed it with reasonable diligence acquired a water right with priority date as the initiation of his work even though the lands involved were placed within declared artesian basin before work was finished and water put to beneficial use.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Damage suit.
— Water right owner is not restricted to hearing before the state engineer and appeal therefrom as exclusive remedy against impairment of his right by another; he has legal right to seek protection of or redress, including damages, for impairment of his water rights by another without first exhausting all administrative procedures available to him.
Tevis v. McCrary
, 1963-NMSC-084, 72 N.M. 134, 381 P.2d 208,
appeal after remand
, 1965-NMSC-051, 75 N.M. 165, 402 P.2d 150.
Water rights separate property of wife.
— Evidence in divorce action supported conclusion that certain property, including water rights stemming from permits issued by state engineer to appropriate underground water, perfected by the drilling of wells, were separate property of the wife and not community property.
Paschall v. Paschall
, 1968-NMSC-100, 79 N.M. 257, 442 P.2d 569.
Estancia Basin.
— Because the Estancia Basin is a declared basin, applicant, who wished to appropriate water from the basin, had to apply for a permit to appropriate water.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
"Description" of land contemplated by section is legal description
and survey would be necessary. 1958 Op. Att'y Gen. No. 58-95.
Purpose of notice.
— Intention of this law is to give interested persons ten days after publication of notice in which to file protests to filed applications. 1937 Op. Att'y Gen. No. 37-1684.
Application not required for slight variation in place of use.
— State engineer need not require application and publication of notice of change of place of use of underground waters when description of land actually irrigated varies only slightly from that shown on original application; however, should there be substantial variation or should acreage irrigated be noncontiguous to that shown on original application, then another application should be required. 1961 Op. Att'y Gen. No. 61-73.
Determination of substantiality of variation.
— Duty of state engineer to enforce statutes carries with it responsibility to determine whether variation is substantial enough to require new application; in exercise of this responsibility, state engineer must use reasonable discretion. 1961 Op. Att'y Gen. No. 61-73.
Appropriation determined case by case.
— There is no statutory authority for state engineer to "declare" that no unappropriated water exists in an underground basin; under present law, the engineer must, and does, determine whether unappropriated water exists on a case by case basis. 1973 Op. Att'y Gen. No. 73-23.
Consideration of prior appropriations.
— Each time application for permit to appropriate underground water is lodged before state engineer, he has duty to consider all prior appropriations to determine whether or not there are unappropriated waters. 1973 Op. Att'y Gen. No. 73-23.
Applicants for use of underground water have burden of proof
. — Burden is upon applicant to demonstrate that unappropriated water exists or that no impairment of existing rights would be caused. 1973 Op. Att'y Gen. No. 73-23.
Appropriation procedure unlawful.
— The state engineer's water rights dedication practice and procedure imposing a condition on the groundwater permit requiring that at some future time the applicant acquire and retire a specified amount of surface water rights in the related stream system is unlawful because it precludes full consideration of public welfare and water conservation resulting in an impairment of existing water rights at the time the new conditional water right is approved, since the rights are not identified until the permit is issued, preventing public notice and comment. 1994 Op. Att'y Gen. No. 94-07.
Nonconsumptive appropriation to be approved.
— Even if no unappropriated water exists in an underground reservoir, an application for a new appropriation must nevertheless be approved, provided that it involves a nonconsumptive use of water, i.e., one that causes no net depletion of water in the reservoir and, therefore, does not impair existing rights. 1973 Op. Att'y Gen. No. 73-23.
Law reviews.
— For essay, "Water, Theology, and the New Mexico Water Code," see 48 Nat. Resources J. 227 (2008).
For student article, "Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes," see 50 Nat. Resources J. 255 (2010).
For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).
For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
For note, "New Mexico State Engineer Issues Orders on Mine Dewatering," see 20 Nat. Resources J. 359 (1980).
For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).
For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Reasonable Groundwater Levels Under the Appropriation Doctrine: The Law and Underlying Economic Goals," see 21 Nat. Resources J. 1 (1981).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "Centralized Decisionmaking in the Administration of Groundwater Rights: The Experience of Arizona, California and New Mexico and Suggestions for the Future," see 24 Nat. Resources J. 641 (1984).
For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J. 911 (1985).
For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).
For article, "A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands," see 29 Nat. Resources J. 347 (1989).
For note, "The Milagro Beanfield War Revisited in
Ensenada Land & Water Ass'n v. Sleeper:
Public Welfare Defies Transfer of Water Rights," see 29 Nat. Resources J. 861 (1989).
For article, "The Administration of the Middle Rio Grande Basin: 1956-2002," see 42 Nat. Resources J. 939 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters §§ 152, 153.
93 C.J.S. Waters § 180.