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New Mexico Guidelines for Deep Groundwater Appropriation (19-NM-g)

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. For purposes of NMSA 72-12-25, “nonpotable” means water containing not less than one thousand parts per million of dissolved solids.

Guidelines for Deep Groundwater Appropriation Process

19-NM-g.1 – Analyze Representative Aquifer Sample for Concentration of Total Dissolved Solids

Initially, a developer must contract with a certified laboratory that can determine the statutory conditions of “nonpotable” are met. To satisfy the baseline conditions, the developer must present objective evidence that a representative sample of the aquifer contains at least one thousand parts per million of dissolved solids.

19-NM-g.2 – Notice of Intention (NOI) to Drill Wells to Appropriate Nonpotable Groundwater

Where the aquifer is entirely below 2,500 feet, after obtaining certifiable evidence of nonpotable groundwater, a developer desiring to appropriate the groundwater must file a Notice of Intention to Drill Wells to Appropriate Nonpotable Groundwater. As part of the notice, a developer must attach geological cross-section maps, and any additional studies that form the basis for contention that the aquifer meets the statutory requirements under NMSA 72-12-25, including a lab report confirming the groundwater resource is “nonpotable.” In addition, the developer must either own the land on which the well will be located or have permission from the landowner to drill a well.

19-NM-g.3 to 19-NM-g.4 – Provide Public Notice of NOI

In addition to notifying the NMOSE, a developer must also put the public on notice by publishing the NOI for three consecutive weeks in a newspaper of general circulation in the county where the project is located. The developer must submit an affidavit of publication to the NMOSE within 10 days of initial publication. During the notice period, any individual may bring a suit in the proper county court challenging potential impairment of their existing rights due to the impending appropriation of nonpotable water. However, unlike the general water appropriation process, a developer is not subject to protest and hearing from the public.

19-NM-g.5 to 19-NM-g.6 – Artesian Well Plan of Operations

Even where all of the deep groundwater conditions are met in a particular aquifer, a developer must submit a detailed NMOSE Artesian Well Plan of Operations to the NMOSE. A NMOSE Artesian Well Plan of Operations requires no fee but does require driller information and extensive well information, including specifications for multiple types of casing. The State Engineer must approve the Artesian Well Plan of Operations in order for the project to progress.

19-NM-g.7 to 19-NM-g.10 – Application for Permit to Drill a Well with No Consumptive Use of Water

After the State Engineer approves the Artesian Well Plan of Operations, a developer must submit a Application for Permit to Drill a Well with no Consumptive Use of Water. The application must identify the applicants, describe the well location in detail using coordinates, and include all five types of documentation requirements applicable to geothermal wells. The NMOSE will review applications for completeness, allowing a defective application the chance to cure, before the State Engineer decides whether to approve or deny the application.

19-NM-g.11 to 19-NM-g.12 – Drill Deep Groundwater well

Upon receipt of approval, a developer may drill the deep groundwater well. However, a developer may not appropriate the nonpotable water until equipping a totalizing meter at the well site for subsequent monitoring purposes.

19-NM-g.13 to 19-NM-g.15 – Appropriate Deep Groundwater

A developer may begin appropriating nonpotable water from the water well once the totalizing meter is in place and functioning properly. The licensed driller must submit a well record to the NMOSE once drilling operations are complete. In addition, the developer must adhere to quarterly recording requirements assessing the amount of water diverted by the well.

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