A. The owner of a water right may drill and use a supplemental well upon making application but prior to the publication and hearing set out in Section 72-12-3 NMSA 1978, if:

(1) the supplemental well is drilled into the same and only the same underground stream, channel, artesian basin, reservoir or lake as the well being supplemented; and

(2) the supplemental well does not increase the appropriation of water to an amount above the existing water rights; and

(3) an emergency situation exists in which the delay caused by publication and hearing would result in crop loss or other serious economic loss; and

(4) the state engineer, after a preliminary investigation, finds that the supplemental well does not impair existing water rights, and grants him a permit authorizing the drilling and use of the supplemental well prior to publication and hearing.

B. If the preliminary investigation by the state engineer causes him to reasonably believe that the drilling and use of a supplemental well may impair existing rights, then no permit shall be issued until after publication and hearing.

History: 1953 Comp., § 75-11-25, enacted by Laws 1959, ch. 41, § 3.

Cross references. — For the state engineer, see 72-2-1 NMSA 1978.

Filing by agent. — Intent of this section is to provide procedure for determining whether proposed changes injuriously affect rights of others rather than to limit right of owners of water right seeking to change point of diversion to act only in person and not through a designated agency. Coldwater Cattle Co. v. Portales Valley Project, Inc., 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.

Application, filed by nonprofit corporation which limited membership to property owners residing within boundaries of underground water basin who owned valid water rights therein, for supplementation of such water rights as well as partial change of point of diversion, was neither inoperative nor invalid, nor did application cast any cloud on title to lands upon which supplemental wells were to be drilled. Coldwater Cattle Co. v. Portales Valley Project, Inc., 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.

Ownership of location of proposed change not required. — Ownership of land to which point of diversion is to be changed is not condition precedent to right to apply for authority to effect such change. Coldwater Cattle Co. v. Portales Valley Project, Inc., 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.

Right of entry necessary for drilling. — Under statutory procedure for filing applications before state engineer for change of point of diversion and supplementation of existing water rights, filing did not authorize applicant to enter upon land of another to sink wells or to construct canals or ditches; such right could not be exercised without lawful right of entry. Coldwater Cattle Co. v. Portales Valley Project, Inc., 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 93 C.J.S. Waters § 90.