New Mexico Water Access and Water Rights (19-NM-a)
Generally, the development of geothermal resources involves the extraction and re-injection of water. Developers engaging in these types of projects are only required to obtain a Permit to Drill a Well with No Consumptive Use of Water and additionally provide the NMOSE with enough information for the NMOSE to determine whether the project impairs existing groundwater rights. Thus, in most scenarios the water access and water rights considerations are minimal.
However, where any geothermal project requires additional water (ie cooling water, water used for dust suppression, etc.) the developer will likely need to purchase those water rights from an existing holder (private entity, municipality, etc.) and undergo necessary processes to formally change ownership and purpose or place of use.This flowchart also describes processes related to potential scenarios that most developers will likely not encounter, but should nevertheless be aware of when considering the specific need and site in question.
Water Access and Water Rights Process
19-NM-a.1 – Calculate Project Need
The developer will need to contact a water engineer/consultant to calculate the amount of water the project (e.g. exploration, drilling, construction, ect.) requires.
19-NM-a.2 to 19-NM-a.4 – Is the Resource (water) Greater than 250 Degrees?
Pursuant to the recently enacted New Mexico HB 201 (2012) An Act Relating to Geothermal Resources; Providing for groundwater to qualify as a geothermal resource, which modified the Geothermal Resources Conservation Act, no permit from the NMOSE is required for the drilling of geothermal wells where the resource (water being pumped and re-injected) is greater than 250 degrees Fahrenheit. However, developers engaging in such projects must still undergo the Impairment Analysis Process:
19-NM-j before subsequently initiating the Drilling and Well Development:
19-NM-a.5 to 19-NM-a.7 – Does the Project Require Consumptive Use of Water
Where the resource (water) is 250 degrees Fahrenheit or less, the developer should next determine whether the project requires consumptive use of water. For water access including the drilling of exploratory or other water wells with no consumptive use, developers may apply for the permit outlined in Permit to Drill a Well with No Consumptive Use of Water:
19-NM-b. In addition to the drilling permit (for no consumptive use), developers will need to provide the New Mexico Office of the State Engineer (NMOSE) with enough information so that the NMOSE can conduct an impairment analysis and determine whether a water replacement plan is necessary. The process is described in Impairment Analysis Process:
19-NM-j. Developers may choose to initiate either process first or both processes simultaneously. In any case, developers must complete the impairment process prior to commencement of operations. Where the project does require consumptive use of water, the developer must engage in additional considerations.
19-NM-a.8 – Locate Source of Water Supply
The developer, with the assistance of a water engineer/consultant, must locate an appropriate source of water supply based on the project’s water requirement. At this point in the considerations, the water need is assumed to be extrinsic to the water directly involved in the geothermal wells (i.e., cooling water, water used for dust suppression, etc.)
19-NM-a.9 – Is the Supply a Commercial Purchase from a Supplier with a Water Right Designated for Commercial Purposes?
If the developer will obtain water through a commercial supplier with a water right designated for commercial purposes, the developer may be able to continue with the project without obtaining a new water right or otherwise changing the water right.
19-NM-a.10 to 19-NM-a.11 – Is the Supply from a Municipal Supply or Other Governmental Supplier?
If the developer will obtain the water from a local municipality, the developer may purchase water from the municipality through a tap fee, and in most cases continue with the project without obtaining a water right permit. In addition, the developer may obtain water from a water and sanitation district or a water conservancy district.
19-NM-a.12 to 19-NM-a.13 – Is the Supply from a Basin where Development is Restricted or Prohibited?
The State Engineer has administrative authority over all 39 groundwater basins in New Mexico. Generally, the process, law and regulations for permitting new and changed uses are the same for all groundwater appropriations. However, the State Engineer has developed administrative guidelines for certain “mined” groundwater basins. Groundwater mining occurs when groundwater is pumped faster than it replenishes within a basin.
All developers should consult Considerations for Water Use in Restricted Basins:
19-NM-d in order to determine whether the project is within a restricted basin.
19-NM-a.14 to 19-NM-a.15 – Is the Supply Located on State Trust Lands?
Where the desired water supply is located on state trust lands, the developer must consult with the New Mexico State Lands Office (NMSLO) and receive permission from the Commissioner of State Lands by executing a Water Rights Agreement. For further information, see Water Access on State Trust Lands Process:
19-NM-e Where the project is not located on state trust lands, the NMSLO will not be involved.
19-NM-a.16 to 19-NM-a.17 – Does the Project Need a Minimal Amount of Water for Less than One Year?
Developers desiring to appropriate water for less than a year, in an amount less than three acre-feet, may be exempted from the general water appropriation process and instead may only have to abide by the requirements outlined in NMSA 72-12-3. The statute exempts temporary (and limited) use for specific purposes, including any highways and roads or drilling operations designed to discover or develop the natural resources of New Mexico. Geothermal energy development projects generally fall within this exception so long as the amount of use and period of use conform to the requirements in NMSA 72-12-1.3. Developers should consult with the applicable NMOSE district office instead of assuming that the project falls within NMSA 72-13-3. The NMOSE will initially determine if the time, amount and purpose of use conforms to the statutory requirements.
For further information, see Permit for Temporary Water Use:
19-NM-a.18 to 19-NM-a.19 – Is the Source of Water Supply “Deep Groundwater”?
As a general rule, the State Engineer has declared all groundwater basins in New Mexico, placing all groundwater under the administrative authority of the New Mexico Office of the State Engineer (NMOSE). However, NMSA 72-12-25 carves out an exception to the general rule that all water in New Mexico is under the control of the NMOSE. In cases where a groundwater aquifer is entirely 2,500 feet or more below the surface and the water therein is “nonpotable”, certain types of development activity (including the development of geothermal resources) are relieved of the general water appropriation process and instead must only submit to minimal reporting requirements.
The process for appropriating water from an aquifer that may meet the statutory requirements for deep groundwater is outlined in Guidelines for Deep Groundwater Appropriation:
19-NM-a.20 to 19-NM-a.21 – Is the Source of Water Supply Fully Appropriated?
If the source of water supply the developer seeks to acquire for the project is not fully appropriated, then they may file an Application to Appropriate Water with the NMOSE. The procedure for appropriating water in New Mexico varies slightly between surface water and undergroundwater sources. For an outline of the entire process, see Permit to Appropriate Water:
19-NM-h While New Mexico surface water (and practically all groundwater) is fully appropriated, there is potential for water availability if senior appropriators have abandoned or forfeited all or part of their water rights.
If the source of water supply sought by the developer is fully appropriated, then the developer will need to negotiate a transfer of an existing water right with the current owner.
19-NM-a.22 to 19-NM-a.24 – Negotiate with Owner to Lease or Purchase Existing Water Right
To procure established water rights, the developer will need to negotiate the purchase or lease of an existing water right with the current owner. In order to perfect the purchase, the developer must file an Application for Change of Ownership of Water Right with the NMOSE. For a description of the entire process, see Change in Ownership of Water Right:
19-NM-a.25 to 19-NM-a.27 – Will the Supply Require a Change in the Purpose of Use, Location of Use, or Point of Diversion?
After acquiring a water right, a developer desiring to change the purpose of use, location of use, and/or point of diversion of the right must go through the process outlined in Permit to Change an Existing Water Right:
19-NM-c If the supply is already decreed and/or permitted for the necessary use, no additional permit is needed and the developer may continue with the project.
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