New Mexico Permit to Change an Existing Water Right (19-NM-c)
Permit to Change an Existing Water Right Process
19-NM-c.1 to 19-NM-c.2 – Is the Supply a Right of Record in the NMOSE?
Before applying to change an existing water right, the water right must be of record in the NMOSE. NMAC 188.8.131.52. A developer should file a Declaration of Ownership of Water Rights with the NMOSE and include maps showing well locations in accordance with NMAC 19.25.3.
If the developer is claiming to be the owner of a water right established prior to March 9, 1907 (the day New Mexico adopted its Constitution), the developer must provide additional information regarding historical and continual use. NMAC 184.108.40.206.
19-NM-c.3 – Application for Permit to Change an Existing Water Right
Once the water right is properly declared and recorded in the NMOSE, a developer may complete the Application for Permit to Change an Existing Water Right. The application fee is $100. Application requirements differ depending on the type of change proposed. A developer may apply for one of the three types of changes (purpose of use, location of use, point of diversion) or a combination of the types of changes within the same application. Generally, applications must include:
- The name and address of the applicant;
- The pertinent state engineer file numbers;
- The source of water supply;
- 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; and
- Other information the state engineer deems necessary.
Where the proposed change involves a (surface) water right into or out of an acequia or community ditch, the developer must submit supplemental application materials as outlined in 220.127.116.11.F.
19-NM-c.4 to 19-NM.c.5 – Review Application Materials for Completeness
The NMOSE will review application materials to ensure completeness. If the NMOSE determines that the application is defective, it must be returned to the developer with a statement of the changes required. The application must be returned to the developer with a statement of the corrections, amendments or changes required, within 30 days after its receipt. NMSA 72-5-3. The developer has 60 days from receipt of the defective notice by the NMOSE to refile. However, if the developer refiles within 30 days of defective notice, the NMOSE processes the application with the priority of the original (defective) application. NMAC 18.104.22.168.
19-NM-c.6 to 19-NM-c.8 - Provide Public Notice of Application
If complete, the NMOSE will prepare a public notice of the application and send the notice to the developer (applicant). The developer is required to publish public notice of the application once a week for three consecutive weeks in a newspaper published and distributed in each county affected by the diversion and in each county where the water will be or has been put to beneficial use. NMAC 22.214.171.124.C.
The public notice must give all essential facts as to the proposed change, including:
- The places of appropriation and of use;
- Amount of water;
- The purpose for which the water will be used;
- The name and address of the developer; and
- The time when the application must be taken up by the NMOSE for consideration.
The developer is required to file an affidavit of publication with the NMOSE within 60 days of the notice. Failure to file proof of publication with the NMOSE will result in the application being cancelled. NMAC 126.96.36.199.C and NMAC 188.8.131.52.
Any person, firm, corporation or other entity may object to the granting of an application if it will impair their water rights or if it will be contrary to the conservation of water within the state or detrimental to the public welfare of the state. The protestant must show that they will be substantially and specifically affected by the granting of the application. NMAC 184.108.40.206.E. All objections and protests must be filed within 10 calendar days following publication of the final notice. NMAC 220.127.116.11.E.1 and NMAC 18.104.22.168.
19-NM-c.9 to 19-NM-c.12 – Have any Protests Been Filed on the Application?
Any person, firm, corporation or other entity alleging that the granting of the application will impair the objector’s water rights must have standing to file objections or protests. NMAC 22.214.171.124.E and 126.96.36.199. All protests must set forth the grounds for asserting standing. In addition, all protests must be filed with the NMOSE not later than 10 calendar days after the date of the last publication of the notice. NMAC 188.8.131.52(E)(1) and NMAC 184.108.40.206.
The NMOSE encourages the developer to negotiate with any protestant to resolve any protests. If the developer and protestant are unable to reach an agreement, then the matter may proceed to a formal hearing.
The NMOSE may determine prior to the hearing that the application should be denied, or may approve the application subject to conditions resulting from protest. NMAC 220.127.116.11.E.3. The NMOSE may deny a protested application to change an existing surface water right prior to or after holding a hearing if they determine one or more of the following:
- No water right exists;
- Granting the application would be detrimental to or impair existing water rights;
- Granting the application would be contrary to the conservation of water within the state;
- Granting the application would be detrimental to the public welfare of the state;
- For a new appropriation, available information indicates that there is no unappropriated surface water.
19-NM-c.13 to 19-NM-c.15 – Does the State Engineer Approve the Application?
The NMOSE may approve a proposed change to an existing water right if the change is not contrary to the conservation of water within the state and is not detrimental to the public welfare. NMSA 72-5-6.
Once the NMOSE approves an application, the application becomes a permit. The permit allows the developer to effect the change in an existing water right in accordance with the permit conditions of approval. NMAC 18.104.22.168.
19-NM-c.16 to 19-NM-c.20 – Does the Developer Need Additional Time to Complete Activities Authorized Under the Permit?
If the developer is unable to effect the change authorized under the permit and subsequently apply the water to beneficial use within the time frame provided in the permit, then the developer should submit a Application for Extension of Time in which to Perfect an Appropriation of Surface Waters or a Application for Extension of Time in which to Perfect an Appropriation of Underground Water to the NMOSE. NMAC 22.214.171.124.C. The application requesting an extension of time must state the reasons for the request, describe the works completed thus far, and set forth a plan predicting when the project will be complete. The NMOSE may approve an extension of time for no longer than 3 years. NMAC 126.96.36.199.C.
19-NM-c.21 to 19-NM-c.24 – Proceed with Use of Water Under Permit Conditions
The developer may use the water in accordance with the permit conditions and must subsequently abide by reporting requirements. The NMOSE will only issue a Certificate and License to Appropriate Water after the developer has submitted the requisite forms:
For groundwater, the developer must file a wr-12 Final Inspection and Report of Beneficial Use of Underground Water, prepared by a professional engineer and professional surveyor. NMAC 188.8.131.52. The report must include a plat prepared in accordance with NMAC 19.25.3.
For surface water, the developer must file both a wr-22 Proof of Completion of Works – Surface Waters and a wr-23 Proof of Application of Water to Beneficial Use – Surface Waters with the NMOSE on or before the due date set by the permit. NMAC 184.108.40.206. Upon receipt of the applicable forms, the NMOSE will issue a Certificate and License to Appropriate Water.
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