A person, firm or corporation desiring to use public underground waters described in this section for irrigation of not to exceed one acre of noncommercial trees, lawn or garden or for household or other domestic use shall make application to the state engineer for a well on a form to be prescribed by the state engineer. Upon the filing of each application describing the use applied for, the state engineer shall issue a permit to the applicant to use the underground waters applied for; provided that permits for domestic water use within municipalities shall be conditioned to require the permittee to comply with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978.
History: 1978 Comp., § 72-12-1.1, enacted by Laws 2003, ch. 298, § 2.
ANNOTATIONSEffective dates. — Laws 2003, ch. 298 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2003, 90 days after adjournment of the legislature.
Permitting. — Section 72-12-1.1 NMSA 1978 is a permitting statute. It does not dictate how a permit will be administered and it does not prevent permits from being administered in the same way as all other water rights, including priority administration. Bounds v. State ex rel. D'Antonio, 2013-NMSC-037, aff'g 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708.
Section 72-12-1.1 NMSA 1978 is not facially unconstitutional. — Section 72-12-1.1 NMSA 1978 does not on its face violate the priority doctrine of Article XVI, Section 2 of the New Mexico Constitution or constitute an impermissible exception to that doctrine. Bounds v. State, 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708, cert. granted, 2011-NMCERT-001, 150 N.M. 558, 263 P.3d 900.
Section 72-12-1.1 NMSA 1978 does not violate the doctrine of prior appropriation set forth in the New Mexico constitution and is facially constitutional. Bounds v. State ex rel. D'Antonio, 2013-NMSC-037, aff'g 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708.
Where plaintiff owned adjudicated surface rights in the Mimbres basin to irrigate plaintiff's farm; the Mimbres basis was a fully appropriated and adjudicated basin and the state engineer had declared the basin closed; plaintiff facially challenged the constitutionality of Section 72-12-1.1 NMSA 1978 on the grounds that the statute authorized the state engineer to issue domestic well permits without determining the availability of unappropriated water, and that the domestic wells authorized by the permits would necessarily impair senior water users; and the state engineer's regulations provided that domestic well permits were subject to priority administration, Section 72-12-1.1 NMSA 1978 was not facially unconstitutional. Bounds v. State ex rel. D'Antonio, 2013-NMSC-037, aff'g 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708.
Issuance of domestic well permits did not violate due process. — Where plaintiff owned adjudicated surface rights in the Mimbres basin to irrigate plaintiff's farm; the Mimbres basin was a fully appropriated and adjudicated basin and the state engineer had declared the basin closed; plaintiff claimed that Section 72-12-1.1 NMSA 1978 violated due process because it authorized the state engineer to issue domestic well permits without determining the availability of unappropriated water, and that the domestic wells authorized by the permits would necessarily impair senior water users; the state engineer's regulations provided that domestic well permits were subject to priority administration; and plaintiff failed to show how the issuance of domestic well permits caused or would cause any actual impairment of plaintiff's water rights, Section 72-12-1.1 NMSA 1978 did not facially violate plaintiff's due process rights. Bounds v. State ex rel. D'Antonio, 2013-NMSC-037, aff'g 2011-NMCA-011, 149 N.M. 484, 252 P.3d 708.