reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-9 - Fees and costs.

The state engineer shall, by regulations, establish the fees to be paid by applicants and declarants, which fees shall not exceed the reasonable cost of the service to be performed by the state engineer, and the applicant shall pay to the publisher the cost of the necessary advertising.
History:
Laws 1931, ch. 131, § 9; 1933, ch. 122, § 1; 1941 Comp., § 77-1109; 1953 Comp., § 75-11-9; Laws 1965, ch. 124, § 4; 1967, ch. 308, § 4.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
"Reasonable cost".
— Reasonable cost of services to be performed by state engineer involves cost of printing forms, cost of preparing rules and regulations, stenographic work necessary for processing of applications and other instruments, engineering investigations necessary for processing of various applications and instruments and cost of administering rules and regulations formulated for purpose of carrying out provisions of underground water law. 1955 Op. Att'y Gen. No. 55-6090.
Expenditure of fees.
— Fees for service rendered under this law cannot be used to pay costs of its administration, such as inspections, records and materials. 1931 Op. Att'y Gen. No. 31-236.
Reversion.
— Creation by this section as it read prior to 1967 amendment of special fund plus requirement that fees be deposited therein and be employed for specific purpose, without limitation in point of time, would be negated by reversion into general fund. 1958 Op. Att'y Gen. No. 58-134.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 94 C.J.S. Waters § 297.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-11 - [Violations declared misdemeanors; penalty.]

That any person using or appropriating water without a permit, contrary to the provisions of Section 1 of Chapter 70, of the New Mexico Session Laws of 1943, designated as Section 72-12-3 NMSA 1978; or who changes the location of his well or use of the water except as provided and permitted by Section 72-12-7 NMSA 1978; or who appropriates to his own use without a permit from the state engineer forfeited water or water rights under the provisions of Section 72-12-8 NMSA 1978, shall be guilty of a misdemeanor and, on conviction thereof in any court of competent jurisdiction, shall be punished by a fine in a sum of not less than twenty-five dollars ($25.00) nor more than two hundred and fifty dollars ($250.00), for each offense; and each day of continued violation shall constitute a separate offense.
History:
1941 Comp., § 77-1112, enacted by Laws 1943, ch. 70, § 2; 1947, ch. 21, § 1; 1953 Comp., § 75-11-12.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
After-the-fact approval by state engineer does not nullify
provisions of this section.
In re Brown,
1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
When appropriator changes his well location prior to application, publication and hearing, he is guilty of a misdemeanor and liable to prosecution hereunder, regardless of whether such change in location is subsequently approved by state engineer.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 94 C.J.S. Waters § 313.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-12 - License required to drill water well from "underground source.".

It shall be unlawful for any person, firm or corporation to drill or to begin the drilling of a well for water from an underground stream, channel, artesian basin, reservoir or lake (hereinafter referred to as "underground source") the boundaries of which have been determined and proclaimed by the state engineer of New Mexico to be reasonably ascertainable, without a valid, existing license for the drilling of such wells issued by the state engineer of New Mexico in accordance with the provisions of this act [72-12-12 to 72-12-17 NMSA 1978], and the rules and regulations promulgated by him in pursuance hereof. Such licenses shall not be required for the construction of a driven well; provided, that the casing for such well shall not exceed two and three-eighths inches outside diameter.
History:
1941 Comp., § 77-1116, enacted by Laws 1949, ch. 178, § 1; 1953 Comp., § 75-11-13; Laws 1957, ch. 144, § 1.
ANNOTATIONS
Cross references.
— For provision making certain indemnity agreements contained in or affecting agreements pertaining to wells, void,
see
56-7-2 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Section is legitimate exercise of police power of state.
State v. Myers
, 1958-NMSC-059, 64 N.M. 186, 326 P.2d 1075.
State may in exercise of police power require license of any person drilling a well in any area determined by state engineer to be an underground source, boundaries of which have been determined to be reasonably ascertainable.
State v. Myers
, 1958-NMSC-059, 64 N.M. 186, 326 P.2d 1075.
Law reviews.
— 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).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters §§ 149, 150.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-13 - Application; information required; fee; surety bond for drilling operation.

Any person desiring to engage in the drilling of one or more wells for underground water within the boundaries of any underground source, as hereinabove defined, shall file an application with the state engineer for a driller's license, setting out his qualifications therefor, the equipment proposed to be used in the drilling of the wells and other information as may be required by the state engineer. A reasonable fee, not to exceed twenty-five dollars ($25.00) shall be imposed by the state engineer. All fees collected under the provisions of this section shall be deposited with the state treasurer, and placed in the general fund. A license shall be issued by the state engineer to any applicant who, in the opinion of the state engineer, having due regard for the interest of the state in the protection of its public waters, is qualified to conduct such drilling operations, but not otherwise. The state engineer shall require a bond in form and with adequate surety to be approved by him in the penal sum of five thousand dollars ($5,000) conditioned that the applicant will comply with the laws of New Mexico in the drilling of all wells to such underground sources, will comply with the rules and regulations of the state engineer and any requirements that may be made by him in connection with the drilling of any individual well for water from such sources.
History:
1941 Comp., § 77-1117, enacted by Laws 1949, ch. 178, § 2; 1953 Comp., § 75-11-14; Laws 1965, ch. 124, § 5.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Law reviews.
— For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-14 - [Suspension or revocation of license; appeal; damage suits.]

Any license issued under the provisions of this act [72-12-12 to 72-12-17 NMSA 1978] may be suspended or revoked by the state engineer upon notice and hearing, in the event that the license shall have violated any condition of the bond maintained by him as a prerequisite for such license. Appeals from the decision of the state engineer may be taken to the district courts of the state in the same manner and with like effect as now provided for other appeals from action of the state engineer. In the event of such breach, the state engineer, on behalf of the state of New Mexico, and any other person injured thereby, is authorized to recover in a civil suit in the district court of the county where the well involved is located, judgment for such damages as may have been sustained by reason thereof. In addition, the state engineer is authorized to recover on behalf of the state of New Mexico a civil penalty in an amount to be determined by the district court in which the action is tried not to exceed $1,000 and judgment for both damages and penalty shall be against the principal and sureties upon said bond.
History:
1941 Comp., § 77-1118, enacted by Laws 1949, ch. 178, § 3; 1953 Comp., § 75-11-15.
ANNOTATIONS
Cross references.
— 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 the state engineer,
see
72-2-1 NMSA 1978.
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).
Law reviews.
— For comment on
Kelley v. Carlsbad Irrigation Dist.,
71 N.M. 464, 379 P.2d 763 (1963), see 3 Nat. Resources J. 340 (1963).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 247.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-15 - [Unauthorized drilling; illegal application of water; injunction or other relief.]

No person owning or controlling lands shall permit the drilling of a well thereon for water from an underground source, as herein defined, by any person other than a driller licensed under the provisions of this act [72-12-12 to 72-12-17 NMSA 1978]. No person shall produce water from an underground source through any well drilled in violation of this act. No person shall apply water from such underground source to land having no valid water right for the purpose to which applied. The state engineer may apply for and obtain an injunction, in the district court of the county in which any well or land affected is situated, against any person, firm or corporation who shall drill or begin the drilling of a well in violation of the provisions of this act, or who shall cause, allow or permit the drilling of a well by a person other than a licensed driller upon land owned or controlled by him, or who shall produce water from any well drilled in violation of this act, or who shall apply water from an underground source, as hereinabove defined, to lands having no valid water right for the purpose to which applied. This provision shall in no wise be construed to affect the existing right of a court of equity in the exercise of its general equity powers to grant relief to the state of New Mexico by injunction or otherwise.
History:
1941 Comp., § 77-1119, enacted by Laws 1949, ch. 178, § 4; 1953 Comp., § 75-11-16.
ANNOTATIONS
Cross references.
— For injunctions,
see
Rules 1-065 and 1-066 NMRA.
For the state engineer,
see
72-2-1 NMSA 1978.
Section is legitimate exercise of police power of state.
State v. Myers
, 1958-NMSC-059, 64 N.M. 186, 326 P.2d 1075;
Thompson Drilling, Inc. v. Romig
, 1987-NMSC-039, 105 N.M. 701, 736 P.2d 979.
State authorized to sue.
— Public waters of this state are owned by state as trustee for the people, and it is authorized to institute suits to protect public waters against unlawful use, or to bring any other action required by its pecuniary interests or for general public welfare.
State ex rel. Reynolds v. Mears
, 1974-NMSC-070, 86 N.M. 510, 525 P.2d 870.
Authority to seek injunction.
— Fact that wells drilled prior to effective date of such act exempt from provisions thereof, does not withdraw or destroy authority conferred upon state engineer to seek injunctive relief to protect or conserve public waters of state; such authority exists independently of any statute.
State ex rel. Reynolds v. Mears
, 1974-NMSC-070, 86 N.M. 510, 525 P.2d 870.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-16 - [Violation of act or rules and regulations; penalty.]

Any person violating any provision of this act [72-12-12 to 72-12-17 NMSA 1978] or of the rules and regulations of the state engineer promulgated in pursuance hereof, shall be guilty of a misdemeanor, and upon conviction, shall be fined in a sum of not less than $25.00 nor more than $250.00 for each offense. Each and every day that any such violation shall continue, shall be construed a separate offense for the purpose of this section.
History:
1941 Comp., § 77-1120, enacted by Laws 1949, ch. 178, § 5; 1953 Comp., § 75-11-17.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
No authority to issue emergency permits.
— Authority to issue emergency permits for changes in well locations does not exist under general rule-making power delegated to state engineer in former 75-11-11, 1953 Comp., and this section.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 94 C.J.S. Waters § 313.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-17 - [Repealing and saving clause; bond; maximum.]

Chapter 149 of the 1947 New Mexico Session Laws, and all other acts and parts of acts in conflict herewith are hereby repealed; provided, however, that nothing, in this act [72-12-12 to 72-12-17 NMSA 1978] contained, shall be construed as changing or affecting, or intending to change or affect the right of the state engineer to require full compliance with the provisions of Section 72-13-4 NMSA 1978; and provided further, that in all cases where the application is for the purpose of drilling an artesian well, or to drill a well upon land where an artesian well is situated, the state engineer may elect to require the owner of the land or the driller of such well, as the case may be, to either comply with the provisions of this act, or the provisions of Section 72-13-4 NMSA 1978, as the best interest of the state of New Mexico may require, but in no event shall such owner of the land or the driller of such well, as the case may be, be required to give more than one $5,000 bond.
History:
1941 Comp., § 77-1121, enacted by Laws 1949, ch. 178, § 6; 1953 Comp., § 75-11-18.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Severability.
— Laws 1949, ch. 178, § 7, provided for the severability of the act if any part or application thereof is held invalid.
Temporary provisions.
— Laws 1949, ch. 178, § 8, provided that the provisions of the act shall not apply to wells commenced or drilled prior to the effective date thereof, and shall not affect jurisdiction, rights or liabilities, civil or criminal, in pending cases.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-18 - Underground waters declared to be public.

For the purposes of Sections 72-12-18 through 72-12-21 NMSA 1978, all underground waters of the state of New Mexico are hereby declared to be public waters and to belong to the public of the state of New Mexico and to be subject to appropriation for beneficial use. All existing rights to the beneficial use of such waters are hereby recognized.
History:
1941 Comp., § 77-1122, enacted by Laws 1953, ch. 64, § 1; 1953 Comp., § 75-11-19; 1983, ch. 2, § 4.
ANNOTATIONS
Compiler's notes.
— Sections 72-12-19 and 72-12-21, referred to in this section, were repealed by Laws 1983, ch. 2, § 7. For present provisions,
see
72-12B-1 and 72-12B-2 NMSA 1978.
Cross references.
— For substantially similar provision,
see
72-12-1 NMSA 1978.
Underground waters public.
— Laws 1953, ch. 64, declares all underground waters to be public waters subject to appropriation for beneficial use.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Law reviews.
— For student symposium, "Constitutional Revision - Water Rights," see 9 Nat. Resources J. 471 (1969).
For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 148.
93 C.J.S. Waters § 169.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-19 - Repealed.

ANNOTATIONS
Repeals.
— Laws 1983, ch. 2, § 7, repeals 72-12-19 NMSA 1978, relating to the removal of underground waters from the state, effective February 22, 1983. For present provisions, see 72-12B-1 and 72-12B-2 NMSA 1978.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-20 - When appropriation without permit allowed.

No permit and license to appropriate underground waters for in-state use shall be required except in basins declared by the state engineer to have reasonably ascertainable boundaries.
History:
1941 Comp., § 75-1121, enacted by Laws 1953, ch. 64, § 3; 1953 Comp., § 75-11-21; 1983, ch. 2, § 5.
ANNOTATIONS
Cross references.
— For appropriation of underground waters with reasonably ascertainable boundaries,
see
72-12-1 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Declaration of basin.
— Until a basin is declared by state engineer, he cannot exercise jurisdiction in connection with its underground waters.
McBee v. Reynolds
, 1965-NMSC-007, 74 N.M. 783, 399 P.2d 110.
Law reviews.
— 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 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 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).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 327.
93 C.J.S. Waters § 170.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-21 - Repealed.

ANNOTATIONS
Repeals.
— Laws 1983, ch. 2, § 7, repeals 72-12-21 NMSA 1978, relating to the enforcement of 72-12-18 to 72-12-21 NMSA 1978, effective February 22, 1983. For present provisions, see 72-12B-1 and 72-12B-2 NMSA 1978.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-22 - Replacement well within one hundred feet.

A. The owner of a water right may drill and use a replacement well drilled within one hundred feet of the original well, prior to application to the state engineer, and the publication and hearing set out in Section 72-12-3 NMSA 1978, if:
(1) the well is drilled into the same and only the same underground stream, channel, artesian basin, reservoir or lake as the original well; and
(2) the appropriation is of the same amount of water allowed by his water right in the original well; and
(3) an emergency situation exists in which the delay caused by application, publication and hearing would result in crop loss or other serious economic loss; and
(4) he files application, or notifies the state engineer office of these facts and the location of the proposed replacement well by registered letter, prior to drilling; provided that he shall file application for a permit within thirty days after drilling begins.
B. The owners of other water rights who claim to be injured by the drilling of a replacement well under these circumstances, may not enjoin the drilling of such a well or the use of the water from the well, but are limited to an action at law to recover damages, and to their right to protest the granting of a permit.
History:
1953 Comp., § 75-11-23, enacted by Laws 1959, ch. 41, § 1.
ANNOTATIONS
Cross references.
— For change of well location, generally,
see
72-12-7 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 90.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-23 - Replacement well over one hundred feet from original well.

A. The owner of a water right may drill and use a replacement well drilled over one hundred feet from his original well upon making application but without waiting for the completion of the publication and hearing set out in Section 72-12-3 NMSA 1978 if:
(1) the well is drilled into the same and only the same underground stream, channel, artesian basin, reservoir or lake as the original well; and
(2) the appropriation is of the same amount of water allowed by his water right in the original well; and
(3) an emergency situation exists in which the delay caused by publication and hearing would result in crop loss or other serious economic loss; and
(4) the state engineer, after a preliminary investigation, finds the change does not impair existing water rights, and grants him a permit authorizing the drilling and use of the replacement well prior to the publication and hearing.
B. When the preliminary investigation by the state engineer causes him to reasonably believe that the drilling and use of a replacement well may impair existing rights, then no permit shall be issued until after publication and hearing.
History:
1953 Comp., § 75-11-24, enacted by Laws 1959, ch. 41, § 2.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-24 - Supplemental well.

A. The owner of a water right may drill and use a supplemental well upon making application but prior to the publication and hearing set out in Section 72-12-3 NMSA 1978, if:
(1) the supplemental well is drilled into the same and only the same underground stream, channel, artesian basin, reservoir or lake as the well being supplemented; and
(2) the supplemental well does not increase the appropriation of water to an amount above the existing water rights; and
(3) an emergency situation exists in which the delay caused by publication and hearing would result in crop loss or other serious economic loss; and
(4) the state engineer, after a preliminary investigation, finds that the supplemental well does not impair existing water rights, and grants him a permit authorizing the drilling and use of the supplemental well prior to publication and hearing.
B. If the preliminary investigation by the state engineer causes him to reasonably believe that the drilling and use of a supplemental well may impair existing rights, then no permit shall be issued until after publication and hearing.
History:
1953 Comp., § 75-11-25, enacted by Laws 1959, ch. 41, § 3.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Filing by agent.
— Intent of this section is to provide procedure for determining whether proposed changes injuriously affect rights of others rather than to limit right of owners of water right seeking to change point of diversion to act only in person and not through a designated agency.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Application, filed by nonprofit corporation which limited membership to property owners residing within boundaries of underground water basin who owned valid water rights therein, for supplementation of such water rights as well as partial change of point of diversion, was neither inoperative nor invalid, nor did application cast any cloud on title to lands upon which supplemental wells were to be drilled.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Ownership of location of proposed change not required.
— Ownership of land to which point of diversion is to be changed is not condition precedent to right to apply for authority to effect such change.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Right of entry necessary for drilling.
— Under statutory procedure for filing applications before state engineer for change of point of diversion and supplementation of existing water rights, filing did not authorize applicant to enter upon land of another to sink wells or to construct canals or ditches; such right could not be exercised without lawful right of entry.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 90.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-25 - Declaration of basin; nonpotable deep aquifers.

A. An undeclared underground water basin having reasonably ascertainable boundaries that consists of an aquifer, the top of which aquifer is at a depth of two thousand five hundred feet or more below the ground surface at any location at which a well is drilled and which aquifer contains only nonpotable water, is subject to state engineer administration in accordance with Sections 72-12-25 through 72-12-28 NMSA 1978.
B. If the state engineer declares the type of underground water basin described in Subsection A of this section, all appropriations of nonpotable water from that basin for:
(1) oil and gas exploration and production, prospecting, mining, road construction, agriculture, generation of electricity, use in an industrial process or geothermal use shall remain subject to Sections 72-12-25 through 72-12-28 NMSA 1978; and
(2) all other uses shall be subject to Sections 72-12-1 through 72-12-24 NMSA 1978.
C. "Nonpotable water", for the purpose of Sections 72-12-25 through 72-12-28 NMSA 1978, means water containing not less than one thousand parts per million of dissolved solids.
History:
1953 Comp., § 75-11-37, enacted by Laws 1967, ch. 86, § 1; 2009, ch. 35, § 1.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
The 2009 amendment,
effective March 30, 2009, added the title of the section; in Subsection A, added "undeclared" before "underground basin"; deleted "shall include" and added "that consists of"; changed "twenty-five hundred feet" to "two thousand five hundred feet"; added "only" before "nonpotable water"; and added the phrase at the end of sentence that subjects the aquifer to state engineer administration; and added Subsection B.
Law reviews.
— For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
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).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-26 - [Proposal to drill wells or recomplete existing wells; notice; depth and location.]

Any person proposing to drill wells or recomplete existing wells to appropriate waters referred to in Section 1 [72-12-25 NMSA 1978] of this act shall file a notice of intention to drill or recomplete with the office of the state engineer in such form as the engineer shall prescribe, and shall publish a notice in a newspaper of general circulation in the county in which the proposed wells will be located, once a week for three consecutive weeks, stating the location and the proposed depth of such wells, the purpose for which the water shall be used and an estimate of the volume of water to be used. Said wells shall not be drilled or recompleted prior to ten days after the last publication of such notice.
History:
1953 Comp., § 75-11-38, enacted by Laws 1967, ch. 86, § 2.
ANNOTATIONS
Cross references.
— For publication of legal notice,
see
14-11-1 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Law reviews.
— 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).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 94 C.J.S. Waters § 345.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-27 - [Information required by state engineer; metering of water produced; quarterly analysis.]

The state engineer may require pertinent data to be filed with respect to each well, and may require water produced therefrom to be metered and the volume thereof reported, together with quarterly reports reflecting an analysis of the water so produced.
History:
1953 Comp., § 75-11-39, enacted by Laws 1967, ch. 86, § 3.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Law reviews.
— For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 4.
93 C.J.S. Waters § 186.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-28 - [Relief from impairment of existing water rights due to nonpotable water; parties to action.]

Any person may bring an action in the district court of the county in which any such well is situated for damages or for injunctive relief with respect to any claimed impairment of existing water rights due to an appropriation of nonpotable water under this act [72-12-25 to 72-12-28 NMSA 1978].
When such suit has been filed, the court shall order the joinder of the state engineer as a party thereto on the motion of any party, and if so joined the court shall direct the state engineer to present such evidence bearing upon the issues of the case as is reasonably available to him.
History:
1953 Comp., § 75-11-40, enacted by Laws 1967, ch. 86, § 4.
ANNOTATIONS
Cross references.
— For provision excluding aquifer containing nonpotable water at depth of 2,500 feet or more from underground water basins,
see
72-12-25 NMSA 1978.
Severability.
— Laws 1967, ch. 86, § 5, provided for the severability of the act if any part or application thereof is held invalid.
Rights vested prior to the water code are subject to forfeiture.
— Water rights that vested prior to the adoption of the New Mexico constitution are not immune from statutory forfeiture or common law abandonment.
State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist.
, 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.
Where landowners were the owners of land that had been acquired in1881 by United States patents; the landowners claimed that the land had been irrigated prior to 1881 and that the date of appropriation was at least 1881; and although portions of the property had been farmed and irrigated prior to 1956, after 1956 the land was not farmed and water has not otherwise been put to beneficial use on any of the land, the landowner's water rights were subject to forfeiture and common law abandonment.
State ex rel. Office of the State Engineer v. Elephant Butte Irrigation Dist.
, 2012-NMCA-090, 287 P.3d 324, cert. denied, 2012-NMCERT-008.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 256.
Measure of damages for interference with percolating waters, 35 A.L.R. 1222, 55 A.L.R. 1385, 109 A.L.R. 395.
Measure and element of damages for pollution of well or spring, 76 A.L.R.4th 629.
93 C.J.S. Waters § 169.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-1 - Short title.

This act [72-12A-1 to 72-12A-13 NMSA 1978] may be cited as the "Mine Dewatering Act."
History:
Laws 1980, ch. 148, § 1.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
For article, "Groundwater Rights: Definition and Transfer," see 27 Nat. Resources J. 653 (1987).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 53A Am. Jur. 2d Mines and Minerals § 357 et seq.
93 C.J.S. Waters § 47.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-2 - Purpose of act.

A. The legislature hereby determines that:
(1) the production of minerals in New Mexico at times requires the diversion and associated treatment of large quantities of water;
(2) the diversion of water to permit mineral production is affected with a public interest;
(3) existing principles of prior appropriation, beneficial use and impairment of water rights, when applied to the diversion of water to permit mineral production, may cause severe economic hardship and impact to persons engaged in mineral production, to the owners of water rights and to the citizens of New Mexico;
(4) such hardship and impact are threats to the public health, safety and welfare and can be averted or minimized through the operation of the Mine Dewatering Act; and
(5) state regulation in matters relating to the diversion of water to implement mineral production is necessary to avert or minimize such threats to the public health, safety and welfare.
B. The purpose of the Mine Dewatering Act is to promote maximum economic development of mineral resources while ensuring that such development does not impair existing water rights.
History:
Laws 1980, ch. 148, § 2.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-3 - Definitions.

As used in the Mine Dewatering Act:
A. "declared underground basin" means an underground stream, channel, artesian basin, reservoir or lake, the boundaries of which have been determined and proclaimed by the state engineer to be reasonably ascertainable;
B. "mine dewatering" means the diversion and discharge of ground water developed by mining activities by means of depressurizing wells, mine shaft pumping or by other means necessary to displace water from an area of mining operations or proposed mining operations, but does not include in situ leaching;
C. "plan of replacement" means a detailed plan for the replacement of water;
D. "replacement of water" means the furnishing of a substitute water supply, the modification of existing water supply facilities, the drilling of replacement wells, the assumption of additional operating costs, the procurement of documentation establishing a waiver of protection by owners of affected water rights, artificial recharge or any other reasonable means to avoid impairment of water rights; and
E. "substitute water supply" means a supply of water adequate in quality and made available at a point of diversion or use in a sufficient quantity to prevent impairment of an affected water right and may include water produced by mine dewatering.
History:
Laws 1980, ch. 148, § 3.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-4 - Right of replacement.

In all cases involving an appropriation of water for beneficial use or mine dewatering, the right of replacement is granted to any person whose appropriation or mine dewatering would otherwise impair existing water rights. Application for replacement of water shall be made to the state engineer. In all cases, replacement of water shall be at the sole expense of the applicant and subject to such rules, regulations and conditions as the state engineer may reasonably prescribe.
History:
Laws 1980, ch. 148, § 4.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-5 - Mine dewatering; jurisdiction of the state engineer.

A. Mine dewatering is neither an appropriation of water nor waste, but is governed by the provisions of the Mine Dewatering Act. No water rights may be established solely by mine dewatering.
B. The provisions of Sections 6 through 10 [72-12A-6 to 72-12A-10 NMSA 1978] of the Mine Dewatering Act shall not apply to mine dewatering initiated prior to the effective date of that act nor to dewatering occurring after the effective date of that act from a mine whose shaft construction was initiated prior to the effective date of that act with the intent to penetrate the aquifer from which the water is withdrawn.
C. Nothing in the Mine Dewatering Act shall prevent emergency mine dewatering necessary to avert or mitigate flooding situations.
History:
Laws 1980, ch. 148, § 5.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-6 - Mine dewatering prohibited; exceptions.

No person shall engage in mine dewatering in a declared underground basin without a valid, existing mine dewatering permit issued by the state engineer in accordance with the provisions of the Mine Dewatering Act and the rules and regulations that may be promulgated by him in pursuance hereof.
History:
Laws 1980, ch. 148, § 6.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-7 - Application for permit; plan of replacement; approval.

A. Any person desiring to engage in mine dewatering in a declared underground basin shall apply to the state engineer for a permit on forms prescribed by him.
B. The state engineer shall require notice of the application and shall thereafter proceed to consider the application in accordance with existing administrative law and procedure governing the appropriation of ground water.
C. The state engineer shall, if he finds that the mine dewatering would not impair existing water rights, grant the application and issue a mine dewatering permit.
D. If the state engineer finds that the mine dewatering would impair existing water rights, he shall notify the applicant of the impaired right or rights. The applicant may appeal such determination or proceed to file a plan of replacement. If appeal results in a judicial determination of impairment, the applicant may thereafter proceed to file a plan of replacement.
E. The applicant may submit a plan of replacement to the state engineer upon application for a mine dewatering permit or at any time thereafter.
F. Upon submission of a plan of replacement, the state engineer shall require notice of the plan and shall thereafter proceed to consider the application in accordance with existing administrative law and procedure governing the appropriation of ground water. If the state engineer finds that the plan of replacement prevents impairment of affected water rights, he shall grant the application and issue a mine dewatering permit contingent upon implementation and maintenance of the plan of replacement provided that implementation and maintenance of the plan of replacement to provide a substitute water supply to the owner of land not subject to condemnation pursuant to Section 12 [72-12A-12 NMSA 1978] of the Mine Dewatering Act shall be required only insofar as permitted by the owner.
G. The approval of the plan of replacement may authorize the use of water produced by mine dewatering as a substitute water supply and, if so authorized, the applicant shall possess a water right in the amount and for the use specified. No additional permit shall be required for such use.
H. In the event the applicant fails to submit a plan of replacement after notification of impairment or if the state engineer finds that the plan of replacement does not provide protection against impairment of existing water rights, he shall deny the application without prejudicing the rights of the applicant to amend or supplement the plan of replacement.
I. The filing for or issuance of a mine dewatering permit shall not preclude the filing for or issuance of a permit to appropriate water.
History:
Laws 1980, ch. 148, § 7.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-8 - Plan of replacement; standards for approval.

A. In reviewing a proposed plan of replacement and in considering terms and conditions which may be necessary to avoid impairment, the state engineer shall consider the characteristics of the aquifer in question, known withdrawals and their effects on water levels and water quality, the duration, quantity and area of impact of the proposed mine dewatering, the present and future discharge from, recharge to and storage of water in the aquifer, any artificial recharge to the aquifer and all other relevant facts.
B. The state engineer may adopt rules and regulations to implement and enforce the Mine Dewatering Act.
History:
Laws 1980, ch. 148, § 8.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-9 - Plan of replacement; implementation and maintenance; amendment.

A. Upon approval of replacement, the permittee shall implement the plan with all deliberate speed and within such time as will prevent impairment of existing water rights.
B. If the owner of a water right protected by a plan of replacement asserts that the permittee has failed or refused to implement or maintain the plan, such owner shall file a written notice with the state engineer specifying the manner or method by which the permittee has failed or refused to implement or maintain the plan. Upon the filing of such notice, the state engineer may require the permittee to show cause why the permit should not be suspended or terminated.
C. If the owner of a prior water right not previously protected by a plan of replacement asserts that his water right is or may be impaired by the permittee's mine dewatering, such owner shall file a written notice with the state engineer specifying the manner or method by which the permittee's mine dewatering is or may impair his water right. Upon the filing of such notice, the state engineer may require the permittee to show cause why the permit should not be suspended or terminated pending submission or amendment of a plan of replacement to provide protection against the claimed impairment.
History:
Laws 1980, ch. 148, § 9.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-10 - Appeal to the district court; procedure.

The decision, act or refusal to act of the state engineer shall be final in all cases unless appeal is taken to the district court within thirty days as provided by Section 72-7-1 NMSA 1978. In the event of appeal of a decision approving the application, no stay order shall issue; provided however, the court may, upon proper showing, require the giving of security by the applicant, in such sum as the court deems proper for the payment of such costs and damages as may be incurred or suffered by any person affected by the order, provided further, that for good cause shown to be recited in the order made, the court or judge may waive the furnishing of security.
History:
Laws 1980, ch. 148, § 10.
ANNOTATIONS
Cross references.
— For procedures governing administrative appeals to the district court,
see
Rule 1-074 NMRA.
For scope of review of the district court,
see
Zamora v. Village of Ruidoso Downs, 120 N.M. 778, 907 P.2d 182 (1995).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-11 - Remedies.

A. The state engineer, when he has reasonable cause to believe that mine dewatering is being or may be conducted contrary to the provisions of the Mine Dewatering Act, may seek injunctive relief to decrease or terminate such activity which relief may be granted or denied in accordance with existing legal and equitable principles.
B. No private cause of action for a temporary restraining order or preliminary or permanent injunction shall be available to any person whose water rights are affected or may be affected by mine dewatering conducted by persons subject to the provisions of Sections 6 through 10 [72-12A-6 to 72-12A-10 NMSA 1978] of this act. The procedures and remedies in the Mine Dewatering Act are exclusive for all such persons.
History:
Laws 1980, ch. 148, § 11.
ANNOTATIONS
Law reviews.
— For comment, "New Mexico's Mine Dewatering Act: The Search for Rehoboth," see 20 Nat. Resources J. 653 (1980).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12A - Mine Dewatering › Section 72-12A-12 - Eminent domain; entry on lands; purpose.

A. The United States, the state of New Mexico or any person, firm, association or corporation, may exercise the right of eminent domain to take and acquire land and right-of-way for the construction, maintenance and operation of water wells, reservoirs, canals, ditches, flumes, aqueducts, pipelines or other works necessary for the replacement of water; any such right-of-way for canal, ditch, pipeline or other means for the conveyance of water shall in all cases be so located as to do the least damage to private or public property consistent with proper use and economical construction. Such land and right-of-way shall be acquired in the manner provided by law for the condemnation and taking of private property in the state of New Mexico for railroad, telegraph, telephone and other public uses and purposes. The engineers and surveyors of the United States, the state and any person, firm or corporation shall have the right to enter upon the lands and waters of the state and of private persons and of public and private and public corporations, for the purpose of making hydrographic surveys and examinations and surveys necessary for selecting and locating suitable sites and routes for reservoirs, canals, pipelines and other waterworks, subject to responsibility for any damage done to such property, in making such surveys.
B. The power of eminent domain for the replacement of water is necessary to accomplish maximum beneficial use of the waters of this state.
C. Nothing in this section shall be construed to authorize the taking of any state or federal land including land held in trust, except as may be provided by law.
History:
Laws 1980, ch. 148, § 12.