2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12B - Use of Waters Outside the State › Section 72-12B-1 - Applications for the transportation and use of public waters outside the state.

A. The state of New Mexico has long recognized the importance of the conservation of its public waters and the necessity to maintain adequate water supplies for the state's water requirements. The state of New Mexico also recognizes that under appropriate conditions the out-of-state transportation and use of its public waters is not in conflict with the public welfare of its citizens or the conservation of its waters.
B. Any person, firm or corporation or any other entity intending to withdraw water from any surface or underground water source in the state of New Mexico and transport it for use outside the state or to change the place or purpose of use of a water right from a place in New Mexico to a place out of that state shall apply to the state engineer for a permit to do so. Upon the filing of an application, the state engineer shall proceed in accordance with the provisions of Section 1 [72-2-20 NMSA 1978] of this 2019 act regarding notice of the application. Any person, firm or corporation or other entity objecting that the granting of the application would impair or be detrimental to 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 of New Mexico 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. The state engineer shall accept for filing and act upon all applications filed under this section in accordance with the provisions of this section. 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 surface or ground water.
C. In order to approve an application under this act, the state engineer must find that the applicant's withdrawal and transportation of water for use outside the state would not impair existing water rights, is not contrary to the conservation of water within the state and is not otherwise detrimental to the public welfare of the citizens of New Mexico.
D. In acting upon an application under this act, the state engineer shall consider, but not be limited to, the following factors:
(1) the supply of water available to the state of New Mexico;
(2) water demands of the state of New Mexico;
(3) whether there are water shortages within the state of New Mexico;
(4) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages in the state of New Mexico;
(5) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; and
(6) the demands placed on the applicant's supply in the state where the applicant intends to use the water.
E. By filing an application to withdraw and transport waters for use outside the state, the applicant shall submit to and comply with the laws of the state of New Mexico governing the appropriation and use of water.
F. The state engineer is empowered to condition the permit to insure [ensure] that the use of water in another state is subject to the same regulations and restrictions that may be imposed upon water use in the state of New Mexico.
G. Upon approval of the application, the applicant shall designate an agent in New Mexico for reception of service of process and other legal notices.
History:
Laws 1983, ch. 2, § 1; 1985, ch. 201, § 9; 2019, ch. 88, § 7.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For state engineer,
see
72-2-1 NMSA 1978.
For applications for permits to use surface water,
see
72-5-1 NMSA 1978.
For applications for use of underground water,
see
72-12-3 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 B, deleted "cause to be published in a newspaper of general circulation in the county in which the well will be located or the stream system from which surface water will be taken 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 1985 amendment
inserted "or to change the place or purpose of use of a water right from a place in New Mexico to a place out of that state" near the end of the first sentence, added the second, third, fourth and fifth sentences, and substituted "this section" for "this act" at the end of the sixth sentence in Subsection B.
Severability.
— Laws 1985, ch. 201, § 11 provided for the severability of the act if any part or application thereof is held invalid.
Limitation on exports in Subsection C not facially unconstitutional.
— The limitation of water exports to those which are "not contrary to the conservation of water within the state and are not otherwise detrimental to the public welfare of the citizens of New Mexico" does not render Subsection C facially unconstitutional.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 597 F. Supp. 694 (D.N.M. 1984).
Disparate treatment given out-of-state applications is facially unconstitutional.
— The utilization of the conservation and public welfare criteria and the six factors listed at Subsection D to evaluate applications for domestic wells and transfers of existing rights where the water is to be used outside the state creates an unconstitutional burden on interstate commerce.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 597 F. Supp. 694 (D.N.M. 1984).
Water treated as natural resource for commerce clause analysis purposes.
— For purposes of constitutional analysis under the commerce clause, water is to be treated the same as other natural resources.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 563 F. Supp. 379 (D.N.M. 1983).
Interstate water usage 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).
Prohibition of out-of-state export of ground water unconstitutional.
— New Mexico's prohibition of the out-of-state export of ground water, derived from N.M. Const., art. XVI, §§ 2 and 3, and former Section 72-12-19 NMSA 1978, which statute, with minor exceptions, expressly prohibited the transport of ground water from New Mexico for use in another state, is unconstitutional, as such an embargo violates the commerce clause of U.S. Const., art. I.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 563 F. Supp. 379 (D.N.M. 1983).
State may not limit water exports
merely to protect local economic interests.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 597 F. Supp. 694 (D.N.M. 1984).
"Water within the state" construed.
— The phrase "water within the state" defines the water which is to be conserved; it does not dictate that all the state's waters must be retained within its borders.
City of El Paso ex rel. Pub. Serv. Bd. v. Reynolds
, 597 F. Supp. 694 (D.N.M. 1984).
Law reviews.
— For comment, "The El Paso Case: Reconciling Sporhase and Vermejo," see 23 Nat. Resources J. ix (1983).
For article, "The Requirement of Beneficial Use as a Cause of Waste in Water Resource Development," see 23 Nat. Resources J. 7 (1983).
For note on
Sporhase v. Nebraska,
458 U.S. 941, 102 S. Ct. 3456, 73 L. Ed. 2d 1254 (1982), see 23 Nat. Resources J. 923 (1983).
For article, "Mixing Water and the Commerce Clause: The Problems of Practice, Precedent, and Policy in Sporhase v. Nebraska," see 24 Nat. Resources J. 161 (1984).
For note, "Commerce Clause Curbs State Control of Interstate Use of Ground Water:
City of El Paso v. Reynolds,"
see 24 Nat. Resources J. 213 (1984).
For note, "New Mexico's Water Exportation Statute: Will It Float?", see 24 Nat. Resources J. 471 (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, "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, "To Market or Not to Market: Allocation of Interstate Waters," see 29 Nat. Resources J. 529 (1989).
For article, "To Market or Not to Market: Allocating Water Rights in New Mexico," see 29 Nat. Resources J. 629 (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 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, "History of the Rio Grande Reservoirs in New Mexico: Legislation and Litigation," see 47 Nat. Resources J. 525 (2007).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters §§ 309 to 315.
93 C.J.S. Waters § 170.