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Show 524 NEW MEXICO domestic and stockwatering uses are exempted from the general administrative requirement of the groundwater act.118 Anyone intending to appropriate ground water in a declared basin for irrigation or industrial use is required to make application to the State engineer for a permit. There is a provision for filing protests to a proposed application and for a hearing. In order for the engineer to approve the proposed application, he must find that there is un- appropriated water in the designated ground water source, and that the proposed appropriation would not impair existing rights.119 Beneficial use is declared to be the basis, the measure, and the limit to the right to the use of ground water.120 It is the applicant's burden to show that existing rights will not be impaired, and the State engineer has a positive duty to determine the question of impair- ment.121 The engineer is not limited to approving or rejecting an applica- tion as filed, but may approve a filing subject to appropriate condi- tions in order to prevent the impairment of other rights, both surface and underground.122 In a recent decision involving a nonrechargeable ground water basin, the New Mexico Supreme Court sustained a decision by the State engineer approving an application to appro- priate. The significance of the decision is that the court sustained the Engineer's determination of the amount of water which could be withdrawn from the basin each year and still leave one-third in storage at the end of 40 years. This, in effect, allows the mining of the ground water and, for all practical purposes, puts a termination date on the existing rights.123 The owner of a ground water right may change the location of his well or change the use of the water, but only upon application to the State engineer. Provision is also made to allow temporary changes not exceeding 1 year.124 As with applications to appropriate, the burden is on the applicant to show other rights will not be im- paired and the engineer has a positive duty to determine whether impairment will occur before approving a proposed change.125 Rights to the use of ground water may be forfeited for failure to apply the water to beneficial use for a 4-year period and persis- tence of the nonuse for one year after notice and declaration of nonuse by the engineer. If a forfeiture occurs, the water reverts to the public and is subject to further appropriation. There are certain statutory exceptions to the forfeiture statute. For example, the en- gineer, upon a showing of reasonable cause for nonuse, may grant consecutive extensions of 1 year each, and forfeiture can thus be delayed or avoided.126 A water right was held to be forfeited under the 4-year statute when the owner of an artesian well simply allowed it to run uncontrolled over grazing land. This, the New Mexico court concluded, was a nonbeneficial use of the water.127 118 New Mexico Stat., sec. 75-11-1. i'8 New Mexico Stat., sec. 75-11-3. 120 New Mexico Stat., sec. 75-11-2. mCity of Roawell v. Berry, 80 N. Mex. 110, 452 P. 2d 179 (1969). 323 Citri of Albuquerque v. Reynolds, 71 N. Mex. 428, 379 P. 2d 73 (1963). 123Mathers v. Texaco, Inc., 77 N. Mex. 239, 421 P. 2d 771 (1967). 124 New Mexico Stat., sec. 75-11-7. ™ Heine v. Reynolds, 69 N. Mex. 398, 367 P. 2d 708 (1962). "6 New Mexico Stat., sec. 75-11-8. 127 State ex rel. Erickson v. McLean, 62 N. Mex. 264, 308 P. 2d 983 (1957). |
