Middle Rio Grande Regional Water Plan

doctrine permits both the aggrieved senior surface appropriator and the junior user to divert their
full share of water. The requirements for a successful Templeton supplemental well include (1) a
valid surface water right, (2) surface water fed in part by groundwater (baseflow), (3) junior
appropriators intercepting that groundwater by pumping, and (4) a proposed well that taps the
same groundwater source of the applicant’s original appropriation.
In Herrington the Court clarified that the well at issue would meet the Templeton requirements if
it was dug into the same aquifer that fed the surface water. The Court also clarified whether a
Templeton well could be drilled upstream of the surface point of diversion. The Court
determined that the proper placement of a Templeton well must be considered on a case-by-case
basis, and that these supplemental wells are not necessarily required to be upstream in all cases.
Lastly, the Court addressed the difference between a Templeton supplemental well and a
statutory supplemental well drilled under NMSA 1978, Sections 72–5–23, -24 (1985). The
Court found that a statutory transfer must occur within a continuous hydrologic unit, which
differs from the narrow Templeton same-source requirement. Although surface to groundwater
transfers require a hydrologic connection, this may be a more general determination than the
Templeton baseflow source requirement. Further, Templeton supplemental wells service the
original parcel, while statutory transfers may apply to new uses of the water, over significant
distances.
Also related to the NMOSE’s regulatory authority, the Court of Appeals addressed unperfected
water rights in Hanson v. Turney, 2004-NMCA-069, 136 N.M. 1. In Hanson, a water rights
permit holder who had not yet applied the water to beneficial use sought to transfer her
unperfected water right from irrigation to subdivision use. The State Engineer denied the
application because the water had not been put to beneficial use. The permit holder argued that
pursuant to NMSA 1978, Section 72-12-7(A) (1985), which allows the owner of a "water right"
to change the use of the water upon application to the State Engineer, the State Engineer had
wrongly rejected her application. The Court upheld the denial of the application, finding that
under western water law the term “water right” does not include a permit to appropriate water
when no water has been put to beneficial use. Accordingly, as used in Section 72-12-7(A) the
term “water right” requires the perfection of a water right through beneficial use before a transfer
can be allowed.
Finally, and of great importance to the Middle Rio Grande region, the State Engineer’s power to
deny an application without holding an evidentiary hearing was addressed in a case involving the
application filed by Augustin Plains Ranch, LLC (Applicant) to divert and use water from the
San Agustin Basin in Catron County, New Mexico. Augustin Plains Ranch, LLC, v. Verhines
and Kokopelli Ranch, No. D-728-CV-2012-008, Memorandum Decision on Motion for
Summary Judgment (11/14/2012). The Applicant sought to appropriate 54,000 acre-feet of
groundwater per year for a wide variety of purposes within the broad areas of Catron, Sierra,
Middle Rio Grande Regional Water Plan 2017 26