N.M. Admin. Code § 19.26.2.11

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

Section 19.26.2.11 - CHANGES TO DECLARED, PERMITTED, LICENSED OR ADJUDICATED RIGHTS

Any change in point of diversion, place of use, or purpose of use of declared, permitted, licensed, or adjudicated surface water rights may be made only upon issuance of a permit by the state engineer. The owner of record of a water right must be the applicant or co-applicant on an application. An access agreement shall accompany an application if the applicant is not the owner of the land on which a new point of diversion is proposed.

A. Application for permit to change point of diversion: A permit from the state engineer is required to change any point of diversion. A point of diversion may be changed within a stream system without losing the priority of the right if such change can be made without detriment to existing surface water rights or impairment to existing ground water rights, and is not contrary to the conservation of water within the state nor detrimental to the public welfare of the state.

(1) Form - content: The owner of record of a water right shall file an application on a form prescribed by the state engineer. An application shall include the following information: the name and address of applicant, the pertinent state engineer file numbers, the source of water supply for the move-from point of diversion, the source of water supply for the move-to point of diversion, the priority date of the water right, the diversion amount, the consumptive use amount, the purpose of use, the reason for change, the legal description of the place of use, the location of the present point of diversion, the location of proposed point of diversion, and other information the state engineer deems necessary. The locations of the move-from and move-to points of diversion shall be described using latitude and longitude or the New Mexico state plane coordinate system. An application for a change in point of diversion of a water right into or out of an acequia or community ditch shall include the documentary evidence required by Subsection F of 19.26.2.11 NMAC.

(2) Filing fee: A fee of $100 must accompany each application.

B. Application for permit to change place and/or purpose of use: A permit from the state engineer is required to change the place and/or purpose of use of all or any part of a water right. If the applicant is not the landowner, written consent by the owner of the land upon which water rights are appurtenant must accompany the application. Water rights may be transferred within a stream system without losing the priority of the right if such change can be made without detriment to existing surface water rights or impairment to existing ground water rights, and is not contrary to the conservation of water within the state nor detrimental to the public welfare of the state. For applications proposing to change the purpose of use, only the consumptive use established and available at the move-from location may be considered for transfer to the new purpose of use. In the context of permits and declarations, only that amount of water that has been legally placed to actual beneficial use may be considered for a change in place and or purpose of use.

(1) Form - content: The owner of record of a water right shall file an application on a form prescribed by the state engineer. The application shall include the following information: the name and address of applicant, the pertinent state engineer file numbers, the source of water supply, the priority date of the water right, the location of the point(s) of diversion, the present diversion amount, the present consumptive use amount, the present purpose of use, the reason for change, the legal description of the present place of use, the proposed diversion amount, the proposed consumptive use amount, the proposed purpose of use, the legal description of the proposed place of use and other information the state engineer deems necessary. The point of diversion shall be described using latitude and longitude or the New Mexico state plane coordinate system. An application for a change in place and/or purpose of use of a water right into or out of an acequia or community ditch shall include the documentary evidence required by Subsection F of 19.26.2.11 NMAC.

(2) Filing fee: A fee of $100 must accompany each application.

(3) Appurtenance: No irrigation right shall be assigned or transferred apart from the land, and title to land may not be transferred apart from appurtenant water rights, except in the manner specifically provided in Sections 72-1-2, 72-5-22, and 72-5-23 NMSA.

C. Application for permit to drill and use a well to supplement a surface water right: Within declared underground water basins an application for a permit from the state engineer is required to drill a well and use the groundwater to supplement any part of a surface water right. Surface water rights may be supplemented with groundwater provided that groundwater is available for appropriation and such change can be made without impairment to existing water rights, is not contrary to conservation of water within the state, and is not detrimental to the public welfare of the state. In the context of declared, permitted, licensed, or adjudicated surface water rights, only that amount of water that has been historically and legally placed to beneficial use from the surface source may be supplemented with groundwater. In no event shall the combined diversion from the surface source and supplemental well exceed the historical supply. Upon approval of a supplemental well, the state engineer shall require metering and reporting of diversions from both sources.

(1) Form - content: The owner of record of a water right shall file an application on a form prescribed by the state engineer. An application shall include the following information: the name and address of applicant, the pertinent state engineer file numbers, the source of surface water supply, the priority date of the surface water right, the location of the surface water point of diversion, the diversion amount, the consumptive use amount, the purpose of use, the legal description of the place of use, the reason for the supplemental well, the location of the proposed well, and other information the state engineer deems necessary. The proposed supplemental well shall be described using latitude and longitude or the New Mexico state plane coordinate system. If an application lacks any of this information, it may be returned to the applicant for completion.

(2) Filing fee: A fee of $100 must accompany an application.

(3) Emergency supplemental wells: Emergency authorization to drill and use a well to supplement a primary surface water rights is not authorized in statute and will not be considered.

D. Emergency change in point of diversion, storage or use of an existing water right: Written authorization from the state engineer is required for an emergency change in point of diversion, storage, or use of water. Emergency authorization may be requested upon the filing of an application and an affidavit showing that an emergency exists in which the delay caused by awaiting publication or hearing would result in crop loss or other serious economic loss. The state engineer may grant the authorization if he determines, after preliminary review, that no foreseeable detriment will occur to existing water rights of other ownership. Within thirty (30) days of an authorization granted by the state engineer, if notice of the application has not already been published, the applicant shall publish the notice in accordance with 19.26.2.12 NMAC. The emergency authorization shall continue in effect as conditioned in the emergency authorization or until the state engineer enters a final decision on the application, whichever occurs first. The emergency authorization will be revoked upon violation of any condition of the emergency authorization. Issuance of the authorization does not obligate favorable consideration by the state engineer on the pending application. A request for an emergency change in the point of diversion or place or purpose of use of a water right into or out of an acequia or community ditch shall include the documentary evidence required by Subsection F of 19.26.2.11 NMAC.

E. Return flow credit: Surface water return flow is that percentage of the total diversion of surface water that has been applied to beneficial use pursuant to a water right or permit and returned to the same surface water stream from which it was appropriated. In no instance may a return flow credit allow an increase in the authorized consumptive use amount, impair existing water rights, be contrary to the conservation of water within the state, or be detrimental to the public welfare of the state. A permit from the state engineer is required to receive return flow credit. An application for return flow shall be accompanied by a return flow plan. Upon review of a return flow application and plan, the state engineer may request additional information, correction, clarification, modification, or other revision as deemed necessary. The permittee has the final burden of demonstrating return flow. The state engineer may approve an application for return flow if the permitted, licensed, or adjudicated consumptive use amount is not increased, the return flow does not violate any applicable standards, regulations, or permits promulgated pursuant to the New Mexico Water Quality Act, or the federal Clean Water Act, and the requirements of 19.26.2.12 NMAC have been satisfied.

(1) Form - content: An application shall be filed on a form prescribed by the state engineer. An application shall include the following information: the name and address of applicant, the pertinent state engineer file numbers, the source of water supply, the priority date of the water right, the location of point of diversion, the authorized diversion amount, the authorized consumptive use amount, the purpose of use, the legal description of the place of use, the proposed diversion amount, the location of the return flow back to the source, the measurement technique employed to quantify the total diversion, the measurement technique employed to quantify the return flow, proof of any applicable New Mexico environment department or other discharge permits, and other information the state engineer deems necessary. The location of the point of diversion and the location of return flow back to the source shall be described using latitude and longitude or the New Mexico state plane coordinate system.

(2) Filing fee: A fee of $100 must accompany an application.

(3) Return flow plan: The permittee shall demonstrate any return flow claimed by submitting a return flow plan acceptable to the state engineer. The actual timing and amount of return flows shall be demonstrated by acceptable field measurement. The plan shall describe the hydrologic conditions and must substantiate the return flow sought by a method acceptable to the state engineer.

(4) Monitoring, reporting and continuing jurisdiction: All approved permits for return flow credit shall require monitoring and annual reporting. The state engineer shall retain jurisdiction over all return flow credit permits and may revise return flow credits as deemed appropriate. The amount of return flow credit may be administered on a year-to year basis. Return flow credits shall not accrue and may not be carried over to the following year. In the event of changes in established patterns of water use, appropriately revised return flow plans may be required in order to receive continued consideration for return flow credit.

F. Additional application requirements for water rights associated with acequias or community ditches: In addition to the requirements of Subsections A, B, C, and D of 19.26.2.11 NMAC, an application for a change, including an emergency change in point of diversion or place or purpose of use of a water right into or out of an acequia or community ditch subject to Sections 73-2-1 through 73-2-68 and Sections 73-3-1 through 73-3-11 NMSA, shall include the documentary evidence of the applicant's compliance with the requirements of Section 72-5-24.1 NMSA. The documentary evidence shall include a copy of the applicant's written request to the commissioners of the acequia or community ditch for approval of the proposed change, together with the evidence that the request was delivered to the commissioners by certified mail; and one of the following:

(1) documentary evidence provided by the commissioners of the acequia or community ditch showing that the applicant has complied with all applicable requirements duly adopted by the acequia or community ditch pursuant to Sections 73-2-21 or 73-3-4.1 NMSA; or

(2) an affidavit provided by the commissioners of the acequia or community ditch stating that the acequia or community ditch has not adopted any requirements pursuant to Sections 73-2-21 or 73-3-4.1 NMSA; or

(3) an affidavit provided by the applicant stating that the acequia failed to make a decision in response to the applicant's written request for approval of the proposed change within one hundred and twenty (120) days after the applicant mailed the request to the commissioners by certified mail.

G. Additional changes requiring permit: Any other change requiring a permit from the state engineer not specifically covered by this section shall conform generally to this section and the rules and regulations of the office of the state engineer.

N.M. Admin. Code § 19.26.2.11

19.26.2.11 NMAC - N, 1/31/2005