N.M. Admin. Code § 19.25.20.112 - DIVERSION, USE, AND ADMINISTRATION OF SURFACE WATER AND GROUNDWATER BY PUEBLOS
Diversion, use, and administration of surface water and groundwater by the Pueblos under this rule shall be subject to, and in accordance with, the settlement agreement, the PFD and the final decree.
A.
General principles.
(1) The Pueblos have decreed first priority
water rights to consumptively use the surface and groundwater of the NPT basin
for agricultural, community, domestic, livestock, commercial or industrial
purposes in the amounts defined in the partial final decree. The Pueblos' first
priority rights are designated as existing basin use rights or future basin use
rights. The Pueblos' first priority rights are not subject to forfeiture,
abandonment or loss by non-use.
(2)
A Pueblo may lease, for any term up to 99 years, any portion of its first
priority rights to another Pueblo or another water user for use within the NPT
basin.
(3) For agricultural uses of
a Pueblo's first priority rights, the amount of water shall not exceed 4.65 AFY
per acre diverted by the ditch at the point of diversion from the surface
source of water (PDR), or 3.35 AFY per acre delivered to the farm headgate or
diverted at the well head (FDR), or a CIR of 1.84 AFY per acre, whichever is
less.
(4) For non-agricultural
uses, the consumptive use amount shall be deemed to be equal to the amount of
the diversion. The diversion amount shall not exceed the consumptive use amount
unless a return flow plan is approved by the state engineer.
(5) The provision of offset water by a Pueblo
shall not constitute use of that Pueblo's first priority rights.
B.
First priority
rights:
existing basin use rights.
(1) The current points of diversion, purposes
and places of use of the Pueblos' existing basin use rights are set out in
appendices one through four of the partial final decree. For the purposes of
administering the mitigation fund, the exercise by the Pueblos of their
existing basin use rights for the purposes and at the points of diversion and
places of use set out in the PFD shall be presumed to not impair non-Pueblo
groundwater rights.
(2) If a Pueblo
consumes water in excess of the quantity designated in the PFD as the Pueblo's
existing basin use rights, the excess consumption shall be deemed to be an
exercise of that Pueblo's available supplemental or future basin use
rights.
(3) No notice or other
administrative process is required for the Pueblos to use water under such
rights for the purposes and at the points of diversion and places of use set
out in appendices one through four of the PFD.
C.
First priority rights: future basin
use rights on Pueblo land.
(1)
Community, domestic and livestock uses.
(a) A Pueblo may exercise its future basin
use rights to divert and consumptively use groundwater on that Pueblo's lands
for new community or domestic uses by Pueblo members or their households or
livestock uses.
(b) Surface water
may be diverted and used for such uses subject to the provisions in section 4
of the settlement agreement.
(c)
The owner of record of a non-Pueblo groundwater right that suffers impairment
as a result of a Pueblo's exercise of its future basin use right for new
community, domestic and livestock uses may seek reimbursement from the
mitigation fund for the cost of mitigating the impairment in accordance with
19.25.20.118
NMAC.
(2)
Agricultural uses from loss of section 4 protection for non-Pueblo
agricultural uses.
(a) A Pueblo may
exercise its future basin use rights to divert and consumptively use surface or
groundwater on that Pueblo's land for new agricultural uses to the extent that
non-Pueblo agricultural water rights are determined to be no longer eligible
for section 4 protection under
19.25.20.122 NMAC.
(b) Any increase in a Pueblo's exercise of
future basin use rights for agricultural uses implemented pursuant to this
paragraph shall divert water from the same tributary from which water was
diverted to irrigate the non-Pueblo water rights acreage that is no longer
eligible for section 4 protection.
(3)
Commercial and industrial uses and
other new agricultural uses.
(a) A
Pueblo may exercise its future basin use rights to divert and consumptively use
surface or groundwater on that Pueblo's land for new commercial or industrial
uses or new agricultural uses on that Pueblo's land in addition to those
described above at Subparagraph a of Paragraph 2 of Subsection C of
19.25.20.112 NMAC.
(b) The owner of record of a non-Pueblo
groundwater right that suffers impairment as a result of the Pueblo's exercise
of its future basin use rights for new commercial, industrial or other
agricultural uses may seek reimbursement from the mitigation fund for the cost
of mitigating the impairment in accordance with
19.25.20.118 NMAC.
(c) The Pueblo shall offset any interference
with non-Pueblo surface water rights caused by the new use in an amount
determined by the water master in accordance with
19.25.20.115 NMAC.
(d) Non-Pueblo water rights eligible for
section 4 protection shall not be curtailed to provide water for the new
commercial, industrial or other agricultural use under Pueblo alternative
administration.
D.
Reserved water rights. The
reserved water rights of the Pueblo of Nambé may be exercised in the NPT
basin provided that:
(1) The exercise shall
not impair Pueblo or non-Pueblo water rights,
(2) Non-Pueblo water rights shall not be
curtailed to provide water for the exercise of these rights, nor shall the
exercise of these rights be curtailed under priority administration or Pueblo
alternative administration.
(3) Any
interference with any surface water rights resulting from the use of the
reserved water rights of the Pueblo of Nambé shall be offset by the
United States or the regional water authority in an amount determined by the
state engineer in accordance with
19.25.20.115
NMAC.
E.
Supplemental Pueblo rights.
(1)
Until alternative water is available for delivery to the Pueblo of Pojoaque,
the Pueblo of Pojoaque has the right to divert the entirety of its supplemental
Pueblo rights from wells located on Pueblo of Pojoaque lands. The Pueblo shall
not divert its supplemental Pueblo rights to the extent alternative water is
available for Pueblo use from the regional water system.
(2) Until alternative water is available for
delivery to the Pueblo of Pojoaque, the Pueblo of Pojoaque and the Pueblo of
San Ildefonso shall maintain in effect a forbearance agreement for the exercise
of at least 475 AFY of the Pueblo of San Ildefonso's first priority rights.
During the tenure of the forbearance agreement the Pueblo of San Ildefonso
shall forgo the exercise of 475 AFY of its first priority rights in accordance
with the terms of the settlement agreement.
(3) Until alternative water is available for
delivery to the Pueblo of Pojoaque, the Pueblo may divert all or a part of its
supplemental Pueblo rights from surface water allocated to the Pueblos and
released from Nambé reservoir, provided the other Pueblos and the
Pojoaque Valley irrigation district agree after consultation with the United
States and the United States bureau of reclamation.
(4) The owner of record of any non-Pueblo
groundwater right that suffers impairment as a result of the Pueblo of
Pojoaque's exercise of its supplemental Pueblo rights may seek reimbursement
from the mitigation fund for the cost of mitigating the impairment in
accordance with
19.25.20.118
NMAC.
F.
Water
rights acquired under state law.
(1) A
Pueblo may acquire water rights in addition to the rights set forth in the PFD
in accordance with, and subject to, state law and regulation. These rights
shall be subject to priority administration in accordance with state law, and
shall be eligible for section 4 protection.
(2) Water rights acquired by the Pueblos
under state law after March 21, 2016 by or for the benefit of a Pueblo shall
not be subject to forfeiture, abandonment or loss by non-use as long as the
title to the water rights remains in the Pueblo or the United States acting as
trustee for the Pueblo.
Notes
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