N.M. Admin. Code § 19.25.20.118

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

Section 19.25.20.118 - MITIGATION FUND

A. The New Mexico finance authority shall administer the mitigation fund. The unavailability of funds shall not affect the rights of the Pueblos to utilize their water rights.

B. Money in the mitigation fund may only be expended to mitigate the effects of impairment to non-Pueblo groundwater rights as determined in accordance with 19.25.20.116 NMAC, including reimbursement to non-Pueblo water rights owners of record for the cost to drill a replacement well or to obtain an alternative water supply.

C. An owner of record that is eligible for reimbursement from the mitigation fund pursuant to 19.25.20.116 NMAC may request reimbursement from the mitigation fund for the costs of mitigating the impairment. To request reimbursement, an owner of record shall:

(1) Within 30 days of the receipt of the notice of impairment or a favorable decision pursuant to 19.25.20.116 NMAC, notify the state engineer in writing of their intent to request reimbursement; and

(2) Within 90 days of the notification to the state engineer of their intent to request reimbursement, submit to the state engineer a proposal for mitigation of the impairment and estimated cost of the mitigation with supporting documentation. The state engineer may grant an extension of time to submit a mitigation proposal and estimated cost for good cause shown. The state engineer may request additional information as needed.

D. Within 60 days of receipt of the mitigation proposal and supporting documentation, the state engineer shall approve or disapprove of the mitigation proposal and estimated cost, and notify the owner of record of the determination by certified mail. The state engineer may rely on the documentation submitted by the owner of record or other information available to the office of the state engineer. If the state engineer disapproves a mitigation proposal or cost estimate, the owner of record may request a hearing within 30 days of the notice of disapproval.

E. Within 90 days of completion of an approved mitigation proposal, the owner of record shall submit an accounting of the amount paid by the owner to mitigate the impairment of their water right.

F. Within 30 days of receipt of the accounting, the state engineer shall direct the New Mexico finance authority to reimburse the owner of record for the mitigation costs, and notify the owner of record of the amount of reimbursement by certified mail. The state engineer may limit the reimbursement to the amount of the approved estimate. An owner of record that is aggrieved by the state engineer's determination the amount of reimbursement from the mitigation fund may request a hearing within 30 days of the notice of the amount of reimbursement.

G. The New Mexico finance authority shall make expenditures from the fund in accordance with this Section and to pay for the finance authority's reasonable costs of administering the fund.

H. Payments from the mitigation fund shall be contingent upon the New Mexico finance authority receiving sufficient appropriations. Nothing in this rule establishes or creates any liability or responsibility on the part of the state to pay mitigation costs for impairment to non-Pueblo groundwater right owners of record as a result of new or changed Pueblo uses of water from any source other than the mitigation fund, nor shall the state have any liability or responsibility to make any payments if the balance in the fund is insufficient to cover those costs.

I. If the New Mexico finance authority determines that the mitigation fund balance is insufficient to reimburse the amount required to mitigate the effects of an impairment, the finance authority shall promptly notify that water right owner of record and the state engineer. Reimbursement shall be paid if and when sufficient amounts are available in the fund, subject to the provisions of this Section.

J. Money remaining in the fund at the end of any fiscal year shall not revert to the general fund but shall accrue to the mitigation fund and shall be used solely for the purposes set forth in this Section.

N.M. Admin. Code § 19.25.20.118

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