2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-7 - Change of location of well; change in use on application; temporary change.

A. The owner of a water right may change the location of his well or change the use of the water, but only upon application to the state engineer and upon showing that the change will not impair existing rights and will not be contrary to the 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 such advertisement and hearing as are prescribed in the case of original applications.
B. When the owner of a water right applies for a temporary change of not to exceed one year for not more than three acre-feet of water to a different location or to a different use, or both, the state engineer shall make an investigation and, if the change does not permanently impair any vested rights of others, he shall enter an order authorizing the change. If he finds that the change sought might impair vested rights, he shall order advertisement and hearing as in other cases.
C. 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 or, before he acts on the application, may order that a hearing be held. He shall notify the applicant of his action by certified mail sent to the address shown in the application.
History:
Laws 1931, ch. 131, § 7; 1941 Comp., § 77-1107; Laws 1953, ch. 60, § 1; 1953 Comp., § 75-11-7; Laws 1967, ch. 308, § 3; 1971, ch. 134, § 4; 1985, ch. 201, § 8.
ANNOTATIONS
Cross references.
— For requirements of original appropriation applications,
see
72-12-3 NMSA 1978.
For penalty for unauthorized change of well location,
see
72-12-11 NMSA 1978.
For authorization of drilling of replacement well or supplemental well prior to application and/or publication and hearing under certain emergency situations,
see
72-12-22 to 72-12-24 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 the state engineer,
see
72-2-1 NMSA 1978.
The 1985 amendment
added "and will not be contrary to the conservation of water within the state and will not be detrimental to the public welfare of the state" at the end of the first sentence in Subsection A.
Transfer from surface to groundwater rights.
— As long as the net depletion from groundwater pumping is offset by retirement of surface rights for the system as a whole, there is no new appropriation of basin water and an application to change the diversion point and place and purpose of use from surface water rights to groundwater rights within the same basin is not a new appropriation.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
In a fully-appropriated basin, new depletions do not automatically constitute impairment as a matter of law.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
The state engineer must consider all declared water rights at the move-to location in the impairment analysis or extinguish non-party declarants' water rights.
Montgomery v. Lomos Altos, Inc.
, 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
Constitutionality.
— The 1967 amendment to this section (deleted by the 1971 amendment) providing for district court de novo review of state engineer's decision, was unconstitutional in that it violated separation of powers doctrine of N.M. Const., art. III, § 1, and was not validated by subsequent adoption of N.M. Const., art. XVI, § 5.
Fellows v. Shultz
, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
Section not confiscatory.
— Reasonable limitations on well location changes imposed by this section do not have effect of confiscating vested rights.
State ex rel. Reynolds v. Fanning
, 1961-NMSC-058, 68 N.M. 313, 361 P.2d 721;
State ex rel. Reynolds v. Mitchell
, 1959-NMSC-073, 66 N.M. 212, 345 P.2d 744.
Legislative presumption in enacting Subsection A.
— It is presumed that the legislature was aware of the state's significant body of water law when it enacted Subsection A of this section.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Waters of declared underground water basin belong to public
of state of New Mexico, are subject to appropriation for beneficial use in accordance with applicable law and may be available to supplement established rights to waters of basin under proper circumstances and through following established procedures.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Term "water right" is ambiguous.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
It is presumed that legislature intended term "water right" should be construed
consistently with the state's significant body of law, and if the legislature had intended a different interpretation of "water right" the legislature would have clearly expressed it.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Water right is property right
and inherent therein is right to change place of diversion, storage or use of the water, if rights of other water users will not be injured thereby.
Clodfelter v. Reynolds
, 1961-NMSC-003, 68 N.M. 61, 358 P.2d 626.
Right subject to conditions.
— Although right to change point of diversion or place of use is inherent property right incident to ownership of water rights, it is a right subject to conditions; it cannot impair other existing rights and it may be enjoyed only in accordance with statutory procedure.
Durand v. Reynolds
, 1965-NMSC-118, 75 N.M. 497, 406 P.2d 817.
Effect of statutes restrictive.
— Statutes governing change in point of diversion or change in well location do not grant, but rather, restrict right of appropriator to change point of diversion or well location.
Public Serv. Co. v. Reynolds
, 1960-NMSC-137, 68 N.M. 54, 358 P.2d 621;
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Appropriation of unappropriated waters is not involved
in approval or rejection of application filed pursuant to this section.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Purpose of requirements.
— Principal underlying statutory requirements 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;
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Issue of impairment.
— Issue in proceedings hereunder is whether approval of application would impair existing rights, which issue state engineer has positive duty to determine.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
The question of impairment of existing rights is a matter which must generally depend upon each application, and to attempt to define the same would lead to severe complications.
U.S. v. Plains Elec. Generation & Transmission Coop.
, 1988-NMCA-011, 106 N.M. 775, 750 P.2d 475.
Legislature did not intend to qualify term "impairment"
by adding "substantial" thereto.
Heine v. Reynolds
, 1962-NMSC-002, 69 N.M. 398, 367 P.2d 708.
Impairment dependent on facts.
— Whether there is an impairment of existing water rights depends upon facts of each case.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Distinction between holders and owners.
— The legislature was aware of the distinction between holders of permits and owners of water rights.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
The absence of any reference to permit holders in Subsection A of this section is compelling evidence that the legislature did not intend to allow permit holders who had not yet applied any water to beneficial use to be considered owners of a water right.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Where plaintiff took the initial step to obtain a water right, and had a right to appropriate water, her permits alone do not establish that she is the owner of a "water right" as that term is used in Subsection A of this section.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Burden on applicant to prove negative impairment.
— Applicant has burden of proving that granting of its application would not impair existing rights of others.
In re City of Roswell
, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796;
Spencer v. Bliss
, 1955-NMSC-066, 60 N.M. 16, 287 P.2d 221;
In re Hobson
, 1958-NMSC-114, 64 N.M. 462, 330 P.2d 547;
Heine v. Reynolds
, 1962-NMSC-002, 69 N.M. 398, 367 P.2d 708;
Durand v. Reynolds
, 1965-NMSC-118, 75 N.M. 497, 406 P.2d 817;
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Engineer's duty to determine issue.
— State engineer had positive duty to determine if existing rights would be impaired; and having found that they would be, there was no necessity under this section to further determine degree or amount of impairment.
Durand v. Reynolds
, 1965-NMSC-118, 75 N.M. 497, 406 P.2d 817;
Heine v. Reynolds
, 1962-NMSC-002, 69 N.M. 398, 367 P.2d 708.
Public policy strongly discourages application of estoppel against state engineer
where the waters of the State are involved.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Delay alone would not constitute due process violation.
— Where plaintiff complains that it took five years for the state engineer to deny her applications, and another three years for the district court to decide her appeal, delay alone would not constitute a due process violation entitling her to have her applications granted.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Degree of impairment immaterial.
— District court was under no duty to find degree of impairment which would result if application were granted as once it determined that applicant had failed to prove there would be no impairment to existing rights, it had duty to deny application.
In re City of Roswell
, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796.
Change in water class creates inference of impairment.
— Although it is clear that all factors must be considered on a case-by-case basis, a change in water quality from Dregne and Maker class 1 to class 2 (or from class 2 to class 3) that would result from the granting of a permit creates a strong inference of impairment.
Stokes v. Morgan
, 1984-NMSC-032, 101 N.M. 195, 680 P.2d 335.
Minimal increase in salinity not necessarily impairment.
— New withdrawals which cause a minimal acceleration in the rate of saltwater intrusion or a minimal increase in salinity do not constitute impairment as a matter of law.
Stokes v. Morgan
, 1984-NMSC-032, 101 N.M. 195, 680 P.2d 335.
Proof of no impairment.
— A showing of no impairment may be founded on two separate bases: (1) the proposed increase in pumping will not significantly accelerate the rate of intrusion of poor quality water, or (2) the quality of intruding water is still good enough to be used for existing purposes.
Stokes v. Morgan
, 1984-NMSC-032, 101 N.M. 195, 680 P.2d 335.
Lowering of wells.
— Finding that lowering of wells as result of city's appropriation of water would be of "negligible effect" 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.
Lowering of water table.
— Lowering of water table does not necessarily constitute impairment of water rights of adjoining appropriators, as whether there is impairment depends upon facts of each case.
In re City of Roswell
, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796.
Denial justified on finding of impairment.
— Where finding of impairment of existing rights was supported by substantial evidence, state engineer was justified in denying applicants' applications.
Durand v. Reynolds
, 1965-NMSC-118, 75 N.M. 497, 406 P.2d 817.
Procedure requisite for well location change.
— Owner cannot change location of well used to irrigate tract with vested right without following statutory procedure.
State ex rel. Reynolds v. Mitchell
, 1959-NMSC-073, 66 N.M. 212, 345 P.2d 744.
No authority to condition change of place of use of private water.
— The state engineer, in granting a permit for a change of place of use, and after determining that the change of place of use will not impair existing rights, may not apply conditions which require that sewage effluent resulting from the use of the water must be returned to a natural water course, because the effluent is private water.
Reynolds v. City of Roswell
, 1982-NMSC-133, 99 N.M. 84, 654 P.2d 537.
Application to change use properly denied.
— Where person had two permits to appropriate water but never put the water to beneficial use, and then filed applications to change the use from irrigation to subdivision use, the state engineer properly denied her requests, reasoning the failure to put the water to beneficial use meant that there was no "water right" to be changed.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Emergency permit not authorized.
— State engineer has neither express nor implied authority to issue emergency permit for change in well location.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Prior hearing contemplated.
— Section contemplates application, notice, hearing and approval prior to change in well location.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Unauthorized change misdemeanor.
— Where appropriator changes well location prior to application, publication and hearing he is liable to prosecution under Section 72-12-11 NMSA 1978, whether or not such change in location is subsequently approved by state engineer.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
Water right forfeited after illegal change in well location.
— Unauthorized change in well location is a misdemeanor and if owner of vested water right changed location of his well after August 21, 1931, without following statutory procedure, and thereafter irrigated from new well for four consecutive years, it resulted in legal forfeiture of his water right.
State ex rel. Reynolds v. Fanning
, 1961-NMSC-058, 68 N.M. 313, 361 P.2d 721.
Unauthorized change in well location is a misdemeanor and where owner of 40-acre vested water right changed location of his well after date basin was declared, without following statutory procedure, and thereafter irrigated from new well for four consecutive years, it resulted in legal forfeiture of his water right.
State ex rel. Reynolds v. Mitchell
, 1959-NMSC-073, 66 N.M. 212, 345 P.2d 744.
Subsequent approval cures defect.
— When appropriator has unlawfully changed well location without following statutory procedure, subsequent determination by state engineer, after notice and hearing, that rights of other water users will not be impaired, cures original defect in procedure.
In re Brown
, 1958-NMSC-113, 65 N.M. 74, 332 P.2d 475.
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.
State engineer initially, and district court on appeal de novo, had authority to approve the appellant's application subject to conditions necessary to prevent impairment of existing rights.
In re City of Roswell
, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796.
State engineer has authority to specify how conditions he imposes are to be met.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
Ownership of proposed location.
— This section and Section 72-12-24 NMSA 1978 do not intimate that ownership of land to which point of diversion is to be changed is 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.
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 on land not owned by the members was not constructive trespass, nor did such filing cast any cloud on title to land 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.
Right of entry required for construction.
— Filing of application for drilling wells 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.
Agent for owners.
— Fact that nonprofit corporation, membership in which was limited to property owners residing within boundaries of underground water basin who owned valid water rights therein, did not own any water rights, did not affect corporation's capacity to act as agent in behalf of member owners.
Coldwater Cattle Co. v. Portales Valley Project, Inc.
, 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
Procedure requisite for well location change.
— State engineer may not allow replacement well to be drilled within 200 feet of original well without following notice procedure as set forth in this section. 1959 Op. Att'y Gen. No. 59-05.
Commingling of waters.
— In order to commingle waters, applicant would have to file application for change of place of use of both artesian well and shallow well; state engineer could approve applications subject to such conditions as reasonably were necessary to insure that there would not be increased use of water from either aquifer. 1959 Op. Att'y Gen. No. 59-60.
Law reviews.
— For article, "The Energy-Water Nexus: Socioeconomic Considerations and Suggested Legal Reforms in the Southwest," see 50 Nat. Resources J. 563 (2010).
For comment on
Mathers v. Texaco, Inc.,
77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).
For note, "Common Law Remedies for Salt Pollution," see 15 Nat. Resources J. 353 (1975).
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, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "The Political Economy of Institutional Change: A Distribution Criterion for Acceptance of Groundwater Rules," see 25 Nat. Resources J. 867 (1985).
For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J. 911 (1985).
For article, "Transfer of Water Rights," see 29 Nat. Resources J. 457 (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).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 332.
93 C.J.S. Waters § 188.