N.M. Admin. Code § 19.25.20.7

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

Section 19.25.20.7 - DEFINITIONS

Unless otherwise defined below or in 19.25.13.7 NMAC, all words herein shall be given their customary and accepted meanings. All uses of masculine pronouns or possessives shall be held to include the feminine.

A. "Aamodtcase" means the civil action filed in the United States District Court for the District of New Mexico in State of New Mexico ex rel. State Engineer and United States of America, Pueblo de Nambé, Pueblo de Pojoaque, Pueblo de San Ildefonso, and the Pueblo de Tesuque v. R. Lee Aamodt, et al., No. 66cv6639 (D.N.M.) (the general adjudication of water rights of the Nambé-Pojoaque-Tesuque stream system).

B. "AamodtLitigation Settlement Act" means the Claims Resolution Act of 2010, Pub. L. No. 11-291, tit. VI, §§ 601, 626, 124 Stat. 3064, 3134-56 (2010).

C. "Acequia" means a community ditch under the laws of New Mexico and Section 73-2-27 NMSA 1978.

D."Administrable water right" or "water right" means a right to the use of water or a right to impound, store or release water determined by the decree court in subfile orders, the partial final judgment and decree ("PFD"), or the final decree, or a right established pursuant to a permit issued by the state engineer or recognized by a license issued by the state engineer.

E. "Administration" is defined in Subsection C of 19.25.13.7 NMAC. Administration includes:

(1) direct flow administration,

(2) storage water administration,

(3) depletion limit administration, and

(4) alternative administration. Alternative administration includes, but is not limited to, Pueblo alternative administration, defined in Subsection LL of 19.25.20.7 NMAC and Tesuque alternative administration, set forth in 19.25.20.121 NMAC.

F. "AFY" means acre-feet of water per year.

G. "Agricultural use" means the use of surface or groundwater for cultivating the soil and growing crops or irrigating pasture for livestock grazing. Agricultural uses do not include domestic, community, commercial, industrial or livestock uses.

H. "CIR" or "consumptive irrigation requirement" means the quantity of irrigation water expressed as a depth or volume, exclusive of effective rainfall, that is consumptively used by plants or is evaporated from the soil surface during one calendar year. The CIR may be numerically determined by subtracting effective rainfall from the consumptive use.

I. "Commercial or industrial use" means the diversion and consumption of water in connection with any activity that provides, or offers to provide, goods or services for consideration, not including domestic uses incidental to a commercial or industrial facility.

J. "Compliance order" means a written order issued by the state engineer pursuant to Section 72-2-18 NMSA 1978 or the settlement agreement to an owner of record or person making an illegal diversion, violating a requirement or prohibition of Chapter 72 NMSA 1978, a regulation, code, order or special order adopted by the state engineer pursuant to Section 72-2-8 NMSA 1978, a condition of a permit or license issued by the state engineer pursuant to law, an order entered by the decree court adjudicating a water right, or the terms of the settlement agreement, partial final decree or final decree.

K. "Connection fund" or "Pojoaque valley water utility connect fund" means the Pojoaque valley water utility connection fund administered by Santa Fe county to pay the cost of connecting well water right owners to the county water utility.

L. "County water utility" or "CWU" means the water utility organized by the county to do the following:

(1) receive water distributed by the regional water authority ("RWA");

(2) provide the water received under Paragraph (1) of Subsection L of 19.25.20.7 NMAC to customers on non-Pueblo land in the NPT basin; and carry out any other activities in accordance with the Aamodt Litigation Settlement Act.

M. "Curtailment order" means a verbal or written order from the water master directing an owner of record or person diverting water to immediately curtail such diversion, in whole or in part.

N. "Decree court" means the United States District Court for the District of New Mexico in the Aamodt case.

O. "Domestic use" means the use of water for indoor and outdoor household purposes, including water used for drinking, sanitation, the irrigation of not to exceed one acre of noncommercial trees, lawn, garden, or landscaping, the care and feeding of household pets, and such uses of water incidental to a governmental, commercial or non-profit facility. Domestic uses do not otherwise include the use of water for agricultural purposes, and do not include any use of water for commercial, industrial, community or livestock watering purposes.

P. "Election" or "elect" means a choice to connect or not connect to the county water utility under the terms of the settlement agreement.

Q."FDR" or "farm delivery requirement" means the quantity of water, exclusive of effective rainfall, that is delivered to the farm headgate or is diverted from a source of water that originates on the farm itself, such as a well or spring, to satisfy the CIR of crops grown on the farm during the irrigation accounting year, or as otherwise provided by permit.

R. "Final decree" means the Final Judgment and Decree of the Water Rights of the Nambé, Pojoaque, and Tesuque Stream System entered by the decree court.

S. "Household" means a single or multi-family residence including outbuildings such as guest houses, barns, and sheds.

T. "Hydrologic model" means the hydrologic model developed by the state of New Mexico and the United States pursuant to the settlement agreement, as updated and further developed by the state engineer for the administration and use of water in the NPT basin, and for determining the effects of administrative actions subject to the settlement agreement. Any generalized hydrologic analysis adopted by the state engineer for the NPT district shall be based upon the hydrologic model.

U. "Illegal diversion" means any of the following:

(1) a diversion that exceeds the quantity of an administrable water right or beneficial use requirements;

(2) a diversion in violation of a rule, statute, license, permit, PFD, final decree, subfile order, or other court order, other than a diversion described in paragraph (1) of this Subsection;

(3) in the case of an acequia or other entity entitled to divert and distribute water on behalf of its membership or constituency, any diversion that exceeds the sum total quantity of all the administrable water rights in that acequia or other entity;

(4) waste;

(5) a diversion in violation of a curtailment order or compliance order;

(6) a diversion that is out-of-priority;

(7) any diversion from an unauthorized point of diversion;

(8) a diversion for conveyance to an unauthorized place of use or for an unauthorized purpose of use;

(9) a diversion of groundwater in excess of the agreed amount of use pursuant to an election made under the settlement agreement; or

(10) a diversion of surface or groundwater that is contrary to the alternative administration set forth in the settlement agreement.

V. "Interfere" or "interference" means a material adverse effect on the quality, divertible quantity, or the cost of diversion of surface water historically used to satisfy surface water rights subject to the settlement agreement.

W. "Livestock use" means the diversion and consumption of water for the care and feeding of domestic animals such as cattle or horses. Livestock use does not include the use of water in connection with the operation or maintenance of feedlots or agricultural use of water.

X. "Mitigation fund" means the fund created and administered by the state to mitigate impairment to non-Pueblo groundwater rights as a result of a new or changed Pueblo use of water on Pueblo land.

Y. "Mutual domestic water consumers association" or "MDWCA" means an association organized under or subject to the provisions of the Sanitary Projects Act, Sections 3-29-1 through 3-29-20 NMSA 1978.

Z. "NambéPojoaque Tesuque basin" or "NPT basin" means the Nambé-Pojoaque-Tesuque stream system, also known as the Pojoaque basin, which is the geographic area limited by a surface water divide (which can be drawn on a topographic map), within which rainfall and runoff flow into arroyos, drainages, and named tributaries that drain to:

(1) the Rio Pojoaque; or

(2) the two unnamed arroyos immediately south of the Rio Pojoaque; and

(3) the two arroyos (including the Arroyo Alamo) that are immediately to the north of the confluence of the Rio Pojoaque and the Rio Grande.

The term "NPT basin" includes the San Ildefonso Eastern Reservation recognized by the Act of September 14, 1961, 75 Stat. 505, Sec. 8.

AA. "Nambe Pojoaque Tesuque water master district" or "NPT district" is the same geographic area as the NPT basin.

BB."Non-Pueblo water right" means a water right held by a non-Pueblo owner.

CC. "Offset water" means any quantity of water provided to offset adverse stream depletion effects caused by a particular diversion of water.

DD. "Out-of-priority" is defined under Subsection U of 19.25.13.7 NMAC.

EE. "Owner of record" means a person named in a subfile order or in a permit, license, change of ownership form or other documentation filed with the state engineer identified as the current owner of an administrable water right. For purposes of administration by the water master, the term owner of record shall include a lessee or other person authorized to use or manage the use of water, or the representative of an acequia or other entity authorized to divert water on behalf of its membership or constituency. The owner of record may or may not be the legal current owner of the water right.

FF. "Partial final decree" or "PFD" means the Partial Final Judgment and Decree of the Water Rights of the Pueblos ofNambé, Pojoaque, San Ildefonso, and Tesuque entered by the decree court on March 23, 2016 (docket no. 10547).

GG. "PDR" or "project diversion requirement" means the annual quantity of water necessary to be diverted from a source of surface water to satisfy the farm delivery requirement and to account for off-farm ditch conveyance delivery losses during the irrigation accounting year.

HH. "Person" means an individual, multiple individuals, legal entity, Pueblo or combination thereof.

II. "Post-1982 well agreement" means the Post-1982 Domestic Wells Stipulation and Settlement Agreement (May 27, 1999) (docket no. 5516) adopted and approved by the decree court (Oct. 4, 2001) (docket no. 5549) to provide for the appointment of a water master, metering of domestic wells under well permits issued by the state engineer after January 13, 1983, and agreed-upon amounts of water for domestic use without restriction as to indoor or closed system use.

JJ. "Pre-basin well" means a well in the NPT basin in existence prior to November 29, 1956.

KK. "Priority administration" is defined in Subsection 5 of 19.25.13.7 NMAC.

LL. "Pueblo alternative administration" means the form of alternative administration whereby the Pueblos agree to share water pursuant to section 4 of the settlement agreement.

MM."Pueblos" means collectively the Pueblos of Nambé, Pojoaque, San Ildefonso, and Tesuque. "Pueblo" means each of the Pueblos of Nambé, Pojoaque, San Ildefonso or Tesuque.

NN. "Pueblo land" means any real property that is:

(1) held in trust by the United States for a Pueblo within the NPT basin:

(a) prior to March 21, 2016, the date on which the decree court approved the settlement agreement, or

(b) on or after March 21, 2016, if the real property is located within the exterior boundaries of the Pueblo as recognized and confirmed by patent issued under the Act of December 22, 1858 (11 Stat. 374, chapter 5) or within the exterior boundary of any territory set aside for the Pueblo by law, executive order or court decree;

(2) owned by a Pueblo within the NPT basin:

(a) prior to March 21, 2016, the date on which the decree court approved the settlement agreement, or

(b) acquired by a Pueblo on or after March 21, 2016, if the real property is located within the exterior boundaries of the Pueblo as recognized and confirmed by patent issued under the Act of December 22, 1858 (11 Stat. 374, chapter 5) or within the exterior boundary of any territory set aside for the Pueblo by law, executive order or court decree;

(3) owned by a Pueblo or held by the United States in trust for the benefit of a Pueblo outside the NPT basin that is located within the exterior boundaries of the Pueblo as recognized and confirmed by patent issued under the Act of December 22, 1858 (11 Stat. 374, chapter 5); or

(4) within the exterior boundaries of any real property located outside the NPT basin set aside for a Pueblo by law, executive order or court decree if the land is contiguous to land held in trust by the United States for that Pueblo as of January 1, 2005.

OO."Pueblo water rights" means the water rights of the Pueblos as determined in the PFD, including the following:

(1) "Alternative water" means an amount of water equivalent to the Pueblo of Pojoaque's supplemental water rights and which the Pueblo of Pojoaque may receive through the regional water system;

(2) "Existing basin use rights" means those water rights as defined in the PFD;

(3) "First priority rights" means those water rights as defined in the PFD;

(4)"Future basin use rights" means those water rights as defined in the PFD;

(5)"Reserved water rights" means those water rights of the Pueblos of Nambé and San Ildefonso to reserved water rights to consumptively use the surface and groundwater of the NPT, to be diverted and used in accordance with the settlement agreement;

(6) "Supplemental Pueblo rights" means those water rights as defined in the PFD. The Pueblo of Pojoaque has a supplemental right to consumptively use groundwater and surface water of the NPT, to be diverted and used in accordance with the settlement agreement;

PP. "Red tag" means a tag affixed to a point of diversion by the water master to notify an owner of record or person that any further diversion of water is illegal.

QQ."Regional water authority" or "RWA" means the Pojoaque basin regional water authority organized by the Pueblos and county of Santa Fe to operate and maintain the diversion and treatment facilities, transmission pipelines and other facilities of the regional water system.

RR."Regional water system" means the regional water system as defined in the Aamodt Litigation Settlement Act.

SS. "Report on anticipated uses" means the report filed by each Pueblo each year describing the anticipated uses of that Pueblo's water rights for a calendar year.

TT. "Section 4 protection" means the protection provided non-Pueblo water rights during Pueblo alternative administration of the first priority rights of the Pueblos pursuant to section 4 of the settlement agreement.

UU."Section 72-12-1 well" means a well permitted by the state engineer under Sections 72-12-1.1, 72-12-1.2, and 72-12-1.3 NMSA 1978, or their predecessor statutes.

VV. "Settlement agreement" means the settlement agreement approved by the decree court on March 21, 2016 (docket no. 10543) and incorporated into the decree court's partial final decree entered on March 23, 2016 (docket no. 10547), as authorized, ratified and confirmed by Section 602(18) of the Aamodt Litigation Settlement Act.

WW. "Settlement party" means any person that signed the settlement agreement or authorized a representative to sign the settlement agreement, and their successors in interest.

XX."State engineer" means the New Mexico state engineer or his designated appointee.

YY. "Subfileorder" means an order entered by the decree court adjudicating a non-Pueblo water right.

ZZ. "TBI letter" means written notice to the water master of the acreage to be irrigated under a ditch during a calendar year.

AAA. "Tributary" means the Rio Pojoaque, Rio Cuyamungue, Rio Tesuque, Rio Nambé, Rio Chupadero, or Rio en Medio.

BBB. "Water master" means the Nambé-Pojoaque-Tesuque water master or any of the sub-district water masters of the Nambé-Pojoaque-Tesuque water master district.

N.M. Admin. Code § 19.25.20.7

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