N.M. Admin. Code § 19.25.20.108

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

Section 19.25.20.108 - DIVERSION, USE, AND ADMINISTRATION OF GROUNDWATER FOR NON-PUEBLO WATER RIGHTS

A.Determination of priority and amount.

(1) The priority and the diversion amount for a Section 72-12-1 well, a pre-basin well or well drilled under a permit from the state engineer shall be the priority and amount adjudicated in the final decree or authorized in a subsequent permit or license issued by the state engineer, unless the use is limited by the terms of an election under the settlement agreement.

(2) If no amount is set forth in the final decree or in a subsequent permit or license, then the amount shall be the amount of historic beneficial use of water from the well.

B.Determination of historic beneficial use.

(1)If no specific amount of water is set forth in the final decree or in a subsequent permit or license, then the amount of historic beneficial use per household shall be presumed to be the following:

(a) 0.7 afy for pre-basin wells (in existence prior to November 29, 1956);

(b) 0.7 afy for Section 72-12-1 wells permitted before January 13, 1983;

(c) 0.7 afy for Section 72-12-1 wells permitted after January 13, 1983 that entered into the post-1982 well agreement;

(d) 0.5 afy for Section 72-12-1 wells permitted after January 13, 1983 that did not enter into the post-1982 well agreement.

(2) In no event shall the total diversion amount from a Section 72-12-1 well exceed 3 afy.

(3) Any owner of record seeking to prove an amount of historic beneficial use greater than the amounts set forth in Subsection (B)(1) of this Section shall provide the following information for review and evaluation by the water master:

(a) meter readings taken in compliance with state engineer requirements, consistent with the metering order for the NPT basin, for a period of one to three calendar years, which may be the first calendar year of meter readings at the owner of record's request; and

(b) a map of the area of the claimed beneficial use prepared by either a licensed professional surveyor or licensed professional engineer in the state of New Mexico formatted as required by 19.26.2.24 NMAC, or a hydrographic survey map or aerial photograph acceptable to the state engineer that designates the claimed area of beneficial use from each point of diversion; and

(c) any other documentation acceptable to the state engineer that demonstrates the history and continuity of historic beneficial use, and may include deeds, survey plats, affidavits or other evidence to substantiate the claim.

(4) The water master will determine the amount based upon the evidence submitted pursuant to Paragraph 3 of Subsection B of this Section of the highest amount of historic beneficial use in one calendar year,

(5) Any historic beneficial use amount less than 0.5 afy is not subject to a reduction under the settlement agreement. An owner of record who elects to reduce historic beneficial use pursuant to an election made under the settlement agreement may be subject to restrictions no sooner than five years after the entry of the well metering order for the NPT basin, but in no event shall an owner of record be required to reduce below 0.5 afy.

C.Elections relating to the settlement agreement and connection to county water utility.

(1) An owner of record of a water right from a well used for domestic, commercial or industrial purposes may elect pursuant to the settlement agreement to connect to the county water utility for water service as soon as that service is available.

(2) Except for new groundwater points of diversion for domestic, commercial or industrial uses, an owner of record of a groundwater right shall not be required to connect to the county water utility and shall not be required to cease use of their well.

(3) An owner of record that becomes a settlement party that makes an election and is in compliance with the terms of the election shall be eligible for protections under sections 4 and 3.1.7 of the settlement agreement.

D.State engineer permits to replace, repair or deepen a well:

(1) Section 72-12-1 well:

(a) Permits for replacement wells, or permits to deepen or repair a well, may be issued to Section 72-12-1 well owners of record until such time as those owners connect to the county water utility under the terms of the settlement agreement.

(b) No replacement well permit will be issued to a Section 72-12-1 well owner of record that makes an election to continue use of the well for domestic purposes in perpetuity, or to connect to the county water utility upon transfer of ownership of the property, until such well owner of record has provided documentation of compliance with all applicable county requirements.

(c) If the county water utility is unable to deliver water to an owner of record that has connected to the county water utility for water service, the CWU shall convey title to the water right back to the previous owner of record, who may apply to the state engineer for a permit to recommence diversions from the well or drill a replacement well for the purpose of diverting groundwater in the amount previously conveyed and permitted to the county water utility.

(2) Pre-basin or permitted wells (other than Section 72-12-1 wells): Permits for replacement wells, or permits to repair or deepen a well (other than Section 72-12-1 wells) may be issued in accordance with state law and rules, provided the well is metered and operated in compliance with any conditions of an applicable permit.

E.New groundwater points of diversion. Permits for new groundwater points of diversion for domestic, agricultural, commercial or industrial uses, including a permit for a Section 72-12-1 well, may be issued provided:

(1) Water rights from within the NPT basin are moved to the new groundwater point of diversion in accordance with state law and this rule;

(2) The priority and amount of the moved rights shall be determined under state law and reflect reductions in amount to account for historic supply; and

(3) The permitted diversions shall cease and the well owner of record shall connect to the county water utility as soon as water service is available.

(4) Existing mutual domestic water consumers associations and existing commercial users shall be required to cease the newly permitted diversion and connect to the county water utility once water service is available, unless they made an election to continue such water use under the terms of the settlement agreement and this rule.

(5) An application for a 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 NMSA 1978 or Sections 73-3-1 through 73-3-11 NMSA 1978 shall include the documentary evidence of the applicant's compliance with the requirements of Section 72-5-24.1 NMSA 1978.

F.Change in point of diversion, purpose or place of use of groundwater.

(1) The point of diversion, purpose or place of use of groundwater rights from a pre-basin well or well drilled under a permit from the state engineer, other than wells permitted under Section 72-12-1, may be changed in accordance with state law and this rule. The point of diversion, purpose or place of use of groundwater rights from a well permitted under Section 72-12-1 may only be changed in accordance with 19.25.20.110 NMAC.

(2) Upon any such change, section 4 protection shall not apply unless the new diversion is metered and operated in compliance with any applicable permit conditions and consistent with the terms of the settlement agreement.

G.Supplemental groundwater points of diversion.

(1) Permits for a supplemental point of diversion from groundwater for an agricultural use may be issued, provided:

(a) The total diversion from surface and groundwater is limited to the historic supply of the surface water diversion.

(b) If a surface water diversion is permitted to continue and is not metered, the acreage served by the supplemented and supplemental points of diversion is reduced by the percentage of deficiency in the historic supply.

(c) If a groundwater point of diversion is used to supplement another groundwater point of diversion, both diversions shall be metered.

N.M. Admin. Code § 19.25.20.108

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