N.M. Admin. Code § 19.25.20.112

Current through Register Vol. 35, No. 23, December 10, 2024

Section 19.25.20.112 - DIVERSION, USE, AND ADMINISTRATION OF SURFACE WATER AND GROUNDWATER BY PUEBLOS

Diversion, use, and administration of surface water and groundwater by the Pueblos under this rule shall be subject to, and in accordance with, the settlement agreement, the PFD and the final decree.

A.General principles.

(1) The Pueblos have decreed first priority water rights to consumptively use the surface and groundwater of the NPT basin for agricultural, community, domestic, livestock, commercial or industrial purposes in the amounts defined in the partial final decree. The Pueblos' first priority rights are designated as existing basin use rights or future basin use rights. The Pueblos' first priority rights are not subject to forfeiture, abandonment or loss by non-use.

(2) A Pueblo may lease, for any term up to 99 years, any portion of its first priority rights to another Pueblo or another water user for use within the NPT basin.

(3) For agricultural uses of a Pueblo's first priority rights, the amount of water shall not exceed 4.65 AFY per acre diverted by the ditch at the point of diversion from the surface source of water (PDR), or 3.35 AFY per acre delivered to the farm headgate or diverted at the well head (FDR), or a CIR of 1.84 AFY per acre, whichever is less.

(4) For non-agricultural uses, the consumptive use amount shall be deemed to be equal to the amount of the diversion. The diversion amount shall not exceed the consumptive use amount unless a return flow plan is approved by the state engineer.

(5) The provision of offset water by a Pueblo shall not constitute use of that Pueblo's first priority rights.

B.First priority rights:existing basin use rights.

(1) The current points of diversion, purposes and places of use of the Pueblos' existing basin use rights are set out in appendices one through four of the partial final decree. For the purposes of administering the mitigation fund, the exercise by the Pueblos of their existing basin use rights for the purposes and at the points of diversion and places of use set out in the PFD shall be presumed to not impair non-Pueblo groundwater rights.

(2) If a Pueblo consumes water in excess of the quantity designated in the PFD as the Pueblo's existing basin use rights, the excess consumption shall be deemed to be an exercise of that Pueblo's available supplemental or future basin use rights.

(3) No notice or other administrative process is required for the Pueblos to use water under such rights for the purposes and at the points of diversion and places of use set out in appendices one through four of the PFD.

C.First priority rights: future basin use rights on Pueblo land.

(1)Community, domestic and livestock uses.

(a) A Pueblo may exercise its future basin use rights to divert and consumptively use groundwater on that Pueblo's lands for new community or domestic uses by Pueblo members or their households or livestock uses.

(b) Surface water may be diverted and used for such uses subject to the provisions in section 4 of the settlement agreement.

(c) The owner of record of a non-Pueblo groundwater right that suffers impairment as a result of a Pueblo's exercise of its future basin use right for new community, domestic and livestock uses may seek reimbursement from the mitigation fund for the cost of mitigating the impairment in accordance with 19.25.20.118 NMAC.

(2)Agricultural uses from loss of section 4 protection for non-Pueblo agricultural uses.

(a) A Pueblo may exercise its future basin use rights to divert and consumptively use surface or groundwater on that Pueblo's land for new agricultural uses to the extent that non-Pueblo agricultural water rights are determined to be no longer eligible for section 4 protection under 19.25.20.122 NMAC.

(b) Any increase in a Pueblo's exercise of future basin use rights for agricultural uses implemented pursuant to this paragraph shall divert water from the same tributary from which water was diverted to irrigate the non-Pueblo water rights acreage that is no longer eligible for section 4 protection.

(3)Commercial and industrial uses and other new agricultural uses.

(a) A Pueblo may exercise its future basin use rights to divert and consumptively use surface or groundwater on that Pueblo's land for new commercial or industrial uses or new agricultural uses on that Pueblo's land in addition to those described above at Subparagraph a of Paragraph 2 of Subsection C of 19.25.20.112 NMAC.

(b) The owner of record of a non-Pueblo groundwater right that suffers impairment as a result of the Pueblo's exercise of its future basin use rights for new commercial, industrial or other agricultural uses may seek reimbursement from the mitigation fund for the cost of mitigating the impairment in accordance with 19.25.20.118 NMAC.

(c) The Pueblo shall offset any interference with non-Pueblo surface water rights caused by the new use in an amount determined by the water master in accordance with 19.25.20.115 NMAC.

(d) Non-Pueblo water rights eligible for section 4 protection shall not be curtailed to provide water for the new commercial, industrial or other agricultural use under Pueblo alternative administration.

D.Reserved water rights. The reserved water rights of the Pueblo of Nambé may be exercised in the NPT basin provided that:

(1) The exercise shall not impair Pueblo or non-Pueblo water rights,

(2) Non-Pueblo water rights shall not be curtailed to provide water for the exercise of these rights, nor shall the exercise of these rights be curtailed under priority administration or Pueblo alternative administration.

(3) Any interference with any surface water rights resulting from the use of the reserved water rights of the Pueblo of Nambé shall be offset by the United States or the regional water authority in an amount determined by the state engineer in accordance with 19.25.20.115 NMAC.

E.Supplemental Pueblo rights.

(1) Until alternative water is available for delivery to the Pueblo of Pojoaque, the Pueblo of Pojoaque has the right to divert the entirety of its supplemental Pueblo rights from wells located on Pueblo of Pojoaque lands. The Pueblo shall not divert its supplemental Pueblo rights to the extent alternative water is available for Pueblo use from the regional water system.

(2) Until alternative water is available for delivery to the Pueblo of Pojoaque, the Pueblo of Pojoaque and the Pueblo of San Ildefonso shall maintain in effect a forbearance agreement for the exercise of at least 475 AFY of the Pueblo of San Ildefonso's first priority rights. During the tenure of the forbearance agreement the Pueblo of San Ildefonso shall forgo the exercise of 475 AFY of its first priority rights in accordance with the terms of the settlement agreement.

(3) Until alternative water is available for delivery to the Pueblo of Pojoaque, the Pueblo may divert all or a part of its supplemental Pueblo rights from surface water allocated to the Pueblos and released from Nambé reservoir, provided the other Pueblos and the Pojoaque Valley irrigation district agree after consultation with the United States and the United States bureau of reclamation.

(4) The owner of record of any non-Pueblo groundwater right that suffers impairment as a result of the Pueblo of Pojoaque's exercise of its supplemental Pueblo rights may seek reimbursement from the mitigation fund for the cost of mitigating the impairment in accordance with 19.25.20.118 NMAC.

F.Water rights acquired under state law.

(1) A Pueblo may acquire water rights in addition to the rights set forth in the PFD in accordance with, and subject to, state law and regulation. These rights shall be subject to priority administration in accordance with state law, and shall be eligible for section 4 protection.

(2) Water rights acquired by the Pueblos under state law after March 21, 2016 by or for the benefit of a Pueblo shall not be subject to forfeiture, abandonment or loss by non-use as long as the title to the water rights remains in the Pueblo or the United States acting as trustee for the Pueblo.

N.M. Admin. Code § 19.25.20.112

Adopted by New Mexico Register, Volume XXVIII, Issue 17, September 12, 2017, eff. 9/12/2017