2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-1 - Underground waters declared to be public; applications for livestock watering, domestic and temporary uses of water.

The water of underground streams, channels, artesian basins, reservoirs or lakes, having reasonably ascertainable boundaries, is declared to belong to the public and is subject to appropriation for beneficial use. By reason of the varying amounts and time such water is used and the relatively small amounts of water consumed in the watering of livestock; in irrigation of not to exceed one acre of noncommercial trees, lawn or garden; in household or other domestic use; and in prospecting, mining or construction of public works, highways and roads or drilling operations designed to discover or develop the natural resources of the state, application for any such use shall be governed by the provisions of Sections 72-12-1.1 through 72-12-1.3 NMSA 1978.
History:
Laws 1931, ch. 131, § 1; 1941 Comp., § 77-1101; 1953, ch. 61, § 1; 1953 Comp., § 75-11-1; Laws 1959, ch. 193, § 1; 1998, ch. 50, § 1; 2001, ch. 207, § 2; 2003, ch. 298, § 1.
ANNOTATIONS
Compiler's notes.
— The references to "this act" properly refer to Laws 1953, ch. 61, compiled as this section, which added all of the section following the first sentence. It is probable, however, that reference to Laws 1931, ch. 131 the provisions of which are presently compiled as 72-12-1 to 72-12-10 NMSA 1978, was intended.
Cross references.
— For definition of "acre-foot,"
see
72-5-19 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 2003 amendment,
effective June 20, 2003, substituted "livestock watering, domestic and temporary uses of water" for "use to state engineer; hearings" in the section heading and rewrote the section substituting the statutory references at the end of the section for former Subsections A and B.
The 2001 amendment,
effective June 15, 2001, inserted "provided that permits for domestic water use within municipalities shall be conditioned to require the permittee to comply with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978; and" in Subsection A.
The 1998 amendment,
effective May 20, 1998, rewrote the section to the extent that a detailed comparison would be impracticable.
Municipality may prohibit domestic wells.
— The city has the authority to prohibit the drilling of domestic wells under its home rule authority. This authority is not preempted by existing state law.
Smith v. City of Santa Fe
, 2006-NMCA-048, 139 N.M. 410, 133 P.3d 866,
aff'd
, 2007-NMSC-055, 142 N.M. 786, 171 P.3d 300.
Section is not void for vagueness
and uncertainty.
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007,
appeal dismissed
, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Act is merely declaratory of law already existing,
in its classification of underground streams, artesian basins and reservoirs with reasonably certain boundaries as public and subject to appropriation.
Pecos Valley Artesian Conservancy Dist. v. Peters
, 1945-NMSC-029, 50 N.M. 165, 173 P.2d 490,
appeal after remand
, 1948-NMSC-022, 52 N.M. 148, 193 P.2d 418.
Laws 1927, ch. 182, § 1 (now repealed), declaring underground waters, boundaries of which may be reasonably ascertained, to belong to the public, and to be subject to appropriation for beneficial use, was not subversive of vested rights of owners of lands overlying such waters, since it was declaratory of existing law.
Yeo v. Tweedy
, 1929-NMSC-033, 34 N.M. 611, 286 P. 970.
Stream and underground water rights identical.
— Although appropriators' rights regarding streams and underground waters may be secured under different administrative procedures, substantive rights obtained are identical; likewise, jurisdiction and duties of state engineer relating to streams and underground waters are the same.
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
All water owned by state.
— All water within state, whether above or beneath surface, belongs to state, which authorizes its use; there is no ownership in corpus of water, but use thereof may be acquired, basis of such acquisition being beneficial use.
State ex rel. Erickson v. McLean
, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.
Waters reaching underground basin public.
— When artificial or natural flow of surface water, through percolation, seepage or otherwise, reaches underground reservoir and thereby loses its identity as surface water, such waters become public under provisions of this section and are subject to appropriation in accordance with applicable statutes.
Kelley v. Carlsbad Irrigation Dist.
, 1966-NMSC-121, 76 N.M. 466, 415 P.2d 849.
There is no law permitting storing of private waters in established underground water basins; when waters, either artificial surface waters or natural surface waters, reach established underground water basin by percolation, seepage or otherwise, they become public waters.
State ex rel. Reynolds v. King
, 1958-NMSC-016, 63 N.M. 425, 321 P.2d 200.
Prior to statutes, well-defined and constant stream in subterranean channel was protected to the owner as much as though it ran through natural channel on surface.
Keeney v. Carillo
, 1883-NMSC-005, 2 N.M. 480.
Waters in underground basin not transferable.
— One having water right in surface flow, which has been lost to underground reservoir, can neither transfer his surface right nor change his point of diversion to underground reservoir.
Kelley v. Carlsbad Irrigation Dist.
, 1966-NMSC-121, 76 N.M. 466, 415 P.2d 849.
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).
Beneficial uses may include recreation, fish and wildlife purposes.
— The holding of Jicarilla Apache Tribe v. U.S., 657 F.2d 1126 (10th Cir. 1981), does not broadly stand for the proposition that using San Juan Chama Project water for recreation, fish and wildlife purposes is not "beneficial" under federal and state law.
Rio Grande Silvery Minnow v. Keys
, 333 F.3d 1109 (10th Cir. 2003).
Protection of endangered species is a beneficial use.
— Diverting San Juan Chama Project water to prevent jeopardy to an endangered species of minnow is a "beneficial" use under New Mexico law.
Rio Grande Silvery Minnow v. Keys
, 333 F.3d 1109 (10th Cir. 2003).
Valley fill as reservoir.
— Valley fill from which billions of gallons of water are pumped annually for irrigation is container of water which was aptly called reservoir or lake by legislature.
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007,
appeal dismissed
, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Nonrechargeable basins.
— New Mexico's water laws, although primarily designed for application to waters whose supply is constantly being renewed, is applicable to nonrechargeable basins, such as the Lea county underground water basin.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
It would be impossible for state engineer to perform duties imposed upon him by law, without attempting to determine and fix a time estimated as economic life of nonrechargeable basin, and fact that determined and fixed time is less than perpetuity, did not take away powers imposed upon state engineer by law to supervise the basin.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
"Reasonably".
— Qualifying word "reasonably" is used in this section in the sense of "sufficiently."
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007,
appeal dismissed
, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Ascertainable boundaries prerequisite to jurisdiction.
— Before jurisdiction of state engineer attaches he must make a finding that basin in question has reasonable ascertainable boundaries; absent such finding waters would not be under control or supervision of state engineer.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Prior appropriation doctrine applies to waters in artesian basins.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Priority in underground water 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.
Relation back of rights.
— Rights of appropriator of water do not become absolute until appropriation is completed by actual application of water to use designed; but where he has pursued appropriation with due diligence, and brought it to completion within reasonable time, as against other appropriators, his rights will relate back to time of commencement of work.
State ex rel. Reynolds v. Mendenhall
, 1961-NMSC-083, 68 N.M. 467, 362 P.2d 998.
Water rights of patent holder.
— Since lands were patented after date of Desert Land Act (43 U.S.C. § 321, et seq.), but waters were reserved in or before date of said act to state of New Mexico as trustee for the public, and subject to its use by the public at any time thereafter, patents to such land carried no right to use of water, except as to that actually applied to reclaiming land under the Desert Land Act, and not thereafter abandoned.
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Water right affirmed.
— Since defendant produced witnesses who farmed tract in question, as well as neighbors who saw the land being worked and certain crops growing thereon, aerial photograph showed ditches from which tract could have been irrigated, and tract was in a depression or old lake bed so that at least before completion of certain leveling and grading work, water ran on it from surrounding land, trial court's finding that tract had valid water right would be affirmed.
State ex rel. Bliss v. Potter Co.
, 1957-NMSC-066, 63 N.M. 101, 314 P.2d 390.
Finding of water right erroneous.
— Trial court erred in finding that certain tract had a valid water right, where two hydrographic surveys and one aerial photographic survey, made in different years, showed the tract to be unirrigated salt grass land, and evidence showed that former owners had acquiesced in restricted permit and license for a new well.
State ex rel. Bliss v. Potter Co.
, 1957-NMSC-066, 63 N.M. 101, 314 P.2d 390.
Engineer's jurisdiction statutory.
— State engineer's jurisdiction over waters of underground streams, channels, artesian basins, reservoirs and lakes is statutory and no provision in law requires adjudication in court to define or determine area of any of described waters.
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007,
appeal dismissed
, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
State engineer exercises administrative control over particular groundwater basin
by declaring it and defining its boundaries.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Statutory procedure exclusive.
— Waters in controversy being public waters, statutory manner of acquiring rights thereto is exclusive.
State ex rel. Reynolds v. King
, 1958-NMSC-016, 63 N.M. 425, 321 P.2d 200.
Illegal use of public waters does not create any right
to continued use since statutory manner for securing right to use public waters is exclusive.
State ex rel. Bliss v. Dority
, 1950-NMSC-066, 55 N.M. 12, 225 P.2d 1007, appeal dismissed, 341 U.S. 924, 71 S. Ct. 798, 95 L. Ed. 1356 (1951).
Burden on applicant to show nonimpairment.
— Under statute regulating appropriation of water of underground basin reservoirs, burden is on the applicant to show that there will be no impairment of existing rights.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Impairment dependent on facts.
— The question of "impairment of existing rights" under statute regulating appropriation of water of underground basin reservoirs is one which must generally be decided upon the facts in each case.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Amount of impairment not at issue.
— State engineer, having performed his positive duty of determining whether or not existing rights would be impaired, did not have duty to further determine degree or amount of impairment.
Mathers v. Texaco, Inc.
, 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Return of water negatives impairment of rights.
— Appropriation application would be granted where applicant proposed to return amount of drainage water equal to that appropriated to underground basin, as prior rights would not be impaired thereby nor would basin waters be depleted.
Reynolds v. Wiggins
, 1964-NMSC-252, 74 N.M. 670, 397 P.2d 469.
Conditional approval.
— In order to prevent an impairment of rights, state engineer has authority to approve an application subject to conditions.
City of Roswell v. Berry
, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.
State engineer was not attempting to exercise jurisdiction over Rio Grande stream water in requiring applicant city to retire surface rights so as to protect prior stream appropriators as condition of granting applications to appropriate underground water from Rio Grande basin, but was merely exercising duties under Sections 72-2-1 and 72-12-3 NMSA 1978.
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Right to seek injunction.
— Even though well was lawfully drilled without permit outside of artesian conservancy district, district could maintain suit to enjoin use of water from such well which was located on land outside territorially defined boundaries of the basin as well as outside district boundaries.
Pecos Valley Artesian Conservancy Dist. v. Peters
, 1945-NMSC-029, 50 N.M. 165, 173 P.2d 490,
appeal after remand
, 1948-NMSC-022, 52 N.M. 148, 193 P.2d 418.
Though an artesian conservancy district owned no land serviced by waters of an artesian basin and no water rights, it constituted proper party plaintiff for maintaining suit to enjoin use of water from unlawfully drilled well.
Pecos Valley Artesian Conservancy Dist. v. Peters
, 1945-NMSC-029, 50 N.M. 165, 173 P.2d 490,
appeal after remand
, 1948-NMSC-022, 52 N.M. 148, 193 P.2d 418.
Burden to establish amount of appropriated water.
— Burden was on conservancy district seeking injunction to establish amount of water which owners of wells existing at time defendant's well tapped basin were legally entitled to use and if that had been done defendant would have been burdened with proving that there was unappropriated water to which he was entitled; however, as the district failed to make out a prima facie case, trial court did not err in dismissing the bill.
Pecos Valley Artesian Conservancy Dist. v. Peters
, 1948-NMSC-022, 52 N.M. 148, 193 P.2d 418.
Appealability.
— Letter received from state engineer by applicant for appropriation, which letter declared intention to deny the application, but made reference to later "final action" not yet taken, was not an appealable "decision, act or refusal to act."
State ex rel. Bliss v. Alexander
, 1955-NMSC-061, 59 N.M. 478, 286 P.2d 322.
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.
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.
"Reasonably ascertainable boundaries".
— This law requiring a permit to take water from a stream only applies to water lying within reasonably ascertainable boundaries and reducing stream flow or taking water from it. 1936 Op. Att'y Gen. No. 36-1408.
Once the state engineer had ascertained that waters mentioned in this section had boundaries which were reasonably ascertainable, he could under rule-making power conferred by former 75-11-11, 1953 Comp., declare them to be public waters so that thereafter they would be within his administrative jurisdiction. 1949 Op. Att'y Gen. No. 49-5185.
Law reviews.
— For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).
For student symposium, "Constitutional Revision - Water Rights," see 9 Nat. Resources J. 471 (1969).
For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For note, "Subdivision Planning Through Water Regulation in New Mexico," see 12 Nat. Resources J. 286 (1972).
For article, "Institutional Alternatives for Mexico-U.S. Groundwater Management," see 18 Nat. Resources J. 201 (1978).
For note,
"Brantley v. Carlsbad Irrigation District:
Limits of the Templeton Doctrine Affirmed," see 19 Nat. Resources J. 669 (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 comment, "Do State Water Anti-Exportation Statutes Violate the Commerce Clause? or Will New Mexico's Embargo Law Hold Water?", see 21 Nat. Resources J. 617 (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 Impact of Recent Court Decisions Concerning Water and Interstate Commerce on Water Resources of the State of New Mexico," see 24 Nat. Resources J. 689 (1984).
For article, "The Ixtapa Draft Agreement Relating to the Use of Transboundary Groundwaters," see 25 Nat. Resources J. 713 (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, "Changing Interpretations of New Mexico's Constitutional Provisions Allocating Water Resources: Integrating Private Property Rights and Public Values," see 26 N.M. L. Rev. 367 (1996).
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 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 § 146.
Railroad company's rights in respect of springs on its right-of-way, 21 A.L.R. 1138.
Ponded water, injury by percolation or seepage from, 38 A.L.R. 1244.
Mining operations interfering with percolating waters, 39 A.L.R. 895, 55 A.L.R. 1425, 109 A.L.R. 395, 109 A.L.R. 405.
Subterranean and percolating waters, springs, wells, 55 A.L.R. 1385, 109 A.L.R. 395.
Liability for injury to property occasioned by oil, water, or the like flowing from well, 19 A.L.R.2d 1025.
Liability for obstruction or diversion of subterranean waters in use of land, 29 A.L.R.2d 1354.
Well-drilling under contract, 90 A.L.R.2d 1346.
Liability of landowner withdrawing groundwater from own land for subsidence of adjoining owner's land, 5 A.L.R.4th 614.
Measure and elements of damages for pollution of well or spring, 76 A.L.R.4th 629.
93 C.J.S. Waters § 88.