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New Mexico Considerations for Water Use in Restricted Basins (19-NM-d)

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. In most cases, basin guidelines result from an order by the State Engineer that a basin is fully appropriated, effectively prohibiting new appropriation permits under NMSA 72-12-3. Some basin guidelines allow for new appropriations under NMSA 72-12-1.3, others do not. Most basin guidelines allow for changes in a right that existed prior to the implementation of the guidelines, but the guidelines in such cases may be more restrictive depending on the purpose and amount of consumptive use. Many basins have sections designated Critical Management Areas (CMAs) by the State Engineer. CMAs have limits on the allowable drawdown in the area on a yearly basis, consistent with the principle that each basin should have a productive life of at least forty years. At a minimum, basin guidelines will have metering requirements or some other condition or restriction that places additional responsibilities on developers than is the case for the normal course of water appropriation. Developers should consult the New Mexico Office of the State Engineer (NMOSE) to determine if basin guidelines apply and to what extent those guidelines affect (or prohibit) the project.

Considerations for Water Use in Restricted Basins Process

19-NM-d.1 – Do the Basin Guidelines Prohibit New Appropriations under 72-12-3?

The following basins are unavailable for new water appropriations under NMSA 72-12-3:

  • Estancia Basin;
  • Curry County and Portales Basin;
  • Lea County;
  • (certain sections of) Roswell Basin;
  • Middle Rio Grande Basin;
  • Alamogordo-Tularosa Basin;

NMOSE Basin Guidelines

19-NM-d.2 – Do the Basin Guidelines Prohibit New Appropriations under 72-12-1.3?

Many of the restricted basins do not expressly prohibit new appropriations under 72-12-1.3 (Temporary Water Use), however, most guidelines give the State Engineer discretion to approve or deny such applications. Ordinarily, the State Engineer would have to grant a proper 72-12-1.3 application unless State Engineer determined the proposed use would permanently impair existing water rights of others. The guidelines typically allow the State Engineer more discretion in issuing or denying 72-12-1.3 applications.

19-NM-d.3 – Does the Project Require a Change in a Water Right Perfected Prior to Basin Restrictions?

Developers acquiring a water right in a restricted basin that was perfected prior to the implementation of basin guidelines may be able to apply for a Permit to Change an Existing Water Right:
in order to change the place or purpose of use and/or point of diversion. Some basins, however, implement more restrictive criteria in evaluating change applications. For example, the Middle Rio Grande Guidelines set forth extra evaluation criteria and place limits on change of purpose of use where the previous water use was for irrigation. In most restricted basins, change of existing water rights applications are either prohibited or highly restricted where the change impacts a CMA.

19-NM-d.4 to 19-NM-d.5 – Is the Supply Within a Critical Management Area (CMA)?

The State Engineer may designate certain “cells” within a basin as a CMA. CMAs are designated where the current depletion rates will not allow for a minimal 40 year water supply. Developers should consult with the NMOSE to determine if the project is within a CMA or close to a CMA. The State Engineer may designate new CMAs or expand the boundaries of existing CMAs at any time, upon a finding that the water supply in that area is depleting at a rate that necessitates a CMA. CMAs are the most heavily restricted sections of water basins in New Mexico. In many cases development in CMAs is prohibited. For example, the Estancia Basin Guidelines do not allow any new appropriation within a CMA and denies non-CMA wells from associated permits that will cause water level decline in CMAs.

19-NM-d.6 – Do the Basin Guidelines Limit Consumptive Beneficial Use for Different Purposes?

Certain Basins place restrictions on the amount of water put to consumptive beneficial use depending on the purpose of use. As mentioned in 19-NM-e.3, the Middle Rio Grande Guidelines set forth extra evaluation criteria and place limits on change of purpose of use where the previous water use was for irrigation. Developers should consult the applicable basin guidelines, particularly if they are acquiring a water right previously used for irrigation or livestock watering.

19-NM-d.7 – Do the Basin Guidelines Require Metering?

Most restricted basins require metering on any water well completed after implementation of the guidelines. Some basins allow for the State Engineer to determine, on a case-by-case basis, whether metering is necessary for water wells under 72-12-1.3. In practice, however, the State Engineer will likely require metering for 72-12-1.3 wells.

19-NM-d.8 – Determine Whether Project May be Permissible under Basin Guidelines

Where a developer desires to appropriate water or acquire a water right of any form within the boundaries of a restricted basin, the developer should consult the applicable basin guidelines. All of the guidelines linked in 19-NM-d.1 (above) are available, along with maps and other supplementary documents, at Administrative Guidelines

19-NM-d.9 – Does the Project Abide by Basin Guidelines?

If the project is facially in violation of a rule within the basin guidelines, a developer should attempt to modify the violating component, change the project location, or prepare for permit denial from the State Engineer.

19-NM-d.10 – Continue with Project

If the project conforms to the basin guidelines, the developer should continue with the process.

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