N.M. Stat. § 72-2-8

Administrative regulations, codes, instructions, orders;

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presumption of correctness. A. The state engineer may adopt regulations and codes to implement and enforce any provision of any law administered by him and may issue orders necessary to implement his decisions and to aid him in the accomplishment of his duties. In order to accomplish its purpose, this provision is to be liberally construed. B. Directives issued by the state engineer shall be in form substantially as follows:

(1) regulations are written statements of the state engineer of general application to the public, implementing statutes, prescribing procedures and interpreting and exemplifying the statutes to which they relate;

(2) codes are written standards and specifications governing design and construction of dams;

(3) orders are written statements of the state engineer to implement his decision;

(4) special orders are written statements defining the declared boundaries of underground streams, channels, artesian basins, reservoirs or lakes.

C. To be effective, a regulation, code or special order issued by the state engineer shall be reviewed by the attorney general or other legal counsel of the state engineer's office prior to being filed as required by law and the fact of his review shall be indicated thereon.

D. To be effective, a regulation or code shall first be issued as a proposed regulation or proposed code and filed for public inspection in the office of the state engineer along with the findings of fact that in the opinion of the state engineer justify the regulation or code. Distribution shall also be made to each district and field office for public inspection and to each of the persons on the file of interested persons hereinafter mentioned. After the proposed regulation or code has been on file for one month, he shall publish it, or if it is lengthy, a resume of it, in not less than five newspapers of general circulation in the state, once a week for two consecutive weeks, with the statement that there will be a hearing on the proposed regulation or code on a day set in the publication, which shall be not more than thirty days nor less than twenty days after the last publication. The hearing shall be held in Santa Fe, and any person who is or may be affected by the proposed regulation or code may appear and testify.

E. Special orders may be promulgated without prior notice and hearing, but the state engineer shall, within ten days of promulgation of a special order, set a date for a hearing on the special order, and publish notice of the public hearing in the same manner required above.

F. In addition to filing copies of regulations as required by law, the state engineer shall maintain in his office duplicate official sets of current regulations, codes and special orders, which sets shall be available for inspection by the public.

G. The state engineer shall develop and maintain a file of names and addresses of individuals, professional, agricultural and other groups having an interest in the promulgation of new, revised or proposed regulations and shall at convenient times distribute to these persons all such regulations, making such charges therefor as will defray the expense incurred in their physical preparation and mailing.

H. Any regulation, code or order issued by the state engineer is presumed to be in proper implementation of the provisions of the water laws administered by him.

I. The state engineer shall state the extent to which regulations, codes and orders will have retroactive effect and, if no such statement is made, they will be applied prospectively only.

History: 1953 Comp., § 75-2-8, enacted by Laws 1967, ch. 246, § 1.

ANNOTATIONS

Repeals and reenactments. — Laws 1967, ch. 246, § 1, repealed former 75-2-8, 1953 Comp., relating to rules and regulations, and enacted a new section.

Cross references. — For attorney general and district attorneys being legal advisers of state engineer, see 72-2-10 NMSA 1978.

For State Rules Act, see Chapter 14, Article 4 NMSA 1978.

Authority of state engineer. — The legislature granted the state engineer broad powers to implement and enforce the water laws administered by him. State ex rel Reynolds v. Aamodt, 1990-NMSC-099, 111 N.M. 4, 800 P.2d 1061.

Conditioned approval. — State engineer had authority to approve part of city's application for well location change and water use, subject to conditions relating to retirement of specified acre-feet of rights, and to specify how the conditions he imposed were to be met. City of Roswell v. Berry, 1969-NMSC-033, 80 N.M. 110, 452 P.2d 179.

The failure to file an application for extension of time to place water to beneficial use prior to the expiration of the last extension granted does not automatically terminate water permits. Retroactive approval by the state engineer of applications for extension of time is permissible. State ex rel. Reynolds v. Aamodt, 1990-NMSC-099, 111 N.M. 4, 800 P.2d 1061.

Passing upon appropriation applications. — With respect to protest to applications to appropriate water, required by regulations of state engineer, no distinction should be made between the government reclamation service and other persons in the practice as to passing upon such applications. 1915 Op. Att'y Gen. No. 15-1506.

Law reviews. — For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees § 300.

Power of state to exact fee or require license for taking water from stream, 19 A.L.R. 649, 29 A.L.R. 1478.

Presumption that public officers have properly performed their duty, as evidence, 141 A.L.R. 1037.

81A C.J.S. States § 120.

Notes of Decisions

Cited in 12 cases (2 in the last 5 years), 1988–2022 · leading case: Lion's Gate Water v. D'ANTONIO

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Lion's Gate Water v. D'ANTONIO (2009) nm · cites it 2× “”); see also NMSA 1978, § 72-2-1 (1982) (providing that the State Engineer “has general supervision of waters of the state and of the measurement, appropriation, distribution thereof and such other duties as required”); NMSA 1978, § 72-2-8(H) (1967) (providing that “[a]ny…”

New Mexico ex rel. State Engineer v. Aamodt (2016) nmd · cites it 4× “3d 622 (the New Mexico legislature has granted the State Engineer broad powers to implement and enforce the water laws administered by him); N.M. Stat. Ann. § 72-2-8 (A) (“The state engineer may adopt regulations and codes to implement and enforce any provision of any law…”

Tri-State Generation & Transmission Ass'n v. D'Antonio (2010) nmctapp · cites it 4× “” NMSA 1978, Section 72-2-8 (1967) grants the State Engineer the ability to adopt regulations implementing and enforcing laws in the Water Code.”

Montgomery v. New Mexico State Engineer (2005) nmctapp · cites it 4× “Long-standing administrative constructions of statutes by the agency charged with administrating them are to be given persuasive weight, and should not be lightly overturned, since there is a statutory presumption that the orders of the State Engineer are the proper…”

State Ex Rel. Reynolds v. Aamodt (1990) nm · cites it 2× “NMSA 1978, Section 72-2-8(A) (Repl. Pamp.1985), states as follows: A.”

State Ex Rel. State Engineer v. Lewis (1995) nmctapp · cites it 2× “However, the Engineer’s Office has advanced no evidence that it ever issued any such regulation or otherwise challenged the Attorney General’s statutory interpretation or administered the provisions relating to small dams and ponds so as to require a permit. 2 Nor do we find…”

Ensenada Land & Water Ass'n v. Sleeper (1988) nmctapp · cites it 2× “NMSA 1978, Section 72-2-8. Second, the more long-standing the state engineer’s interpretation of construction of the statutes without amendment by the legislature, the more likely that the state engineer’s interpretation reflects the legislature’s intent.”

State Engineer of New Mexico v. Diamond K Bar Ranch, LLC (2016) nm · cites it 2× “See NMSA 1978, § 72-2-8(A) (“The [SJtate [Ejngineer may adopt regulations and codes to implement and enforce any provision of any law administered by [the State Engineer].”

Tri-State Generation & Transmission Ass'n v. D'Antonio (2007) nmctapp · cites it 2× “See NMSA 1978, § 72-2-8 (1967) (addressing the State Engineer’s authority to promulgate regulations).”

Augustin Plains Ranch v. John D’Antonio (2022) nmctapp · cites it 2× “6 NMAC; see also § 72-2-8(H) (“Any regulation, code or order issued by the state engineer is presumed to be in proper implementation of the provisions of the water laws administered by [it].”

Gregory Rock House Ranch, LLC v. New Mexico State Engineer (In re Gregory Rock House Ranch, LLC) (2006) nmb · cites it 3× “1978 § 72-2-8(A) and (H), deference is accorded the decisions of the State Engineer.”

Augustin Plains Ranch, LLC v. D'Antonio (2022) nmctapp “See § 72-2-8(H) (“Any regulation . . . issued by the state 6 engineer is presumed to be in proper implementation of the provisions of the water 7 laws administered by [he or she].”

— N.M. Stat. § 72-2-8(A) — 3 cases

State Ex Rel. Reynolds v. Aamodt (1990) nm “NMSA 1978, Section 72-2-8(A) (Repl. Pamp.1985), states as follows: A.”

State Engineer of New Mexico v. Diamond K Bar Ranch, LLC (2016) nm “See NMSA 1978, § 72-2-8(A) (“The [SJtate [Ejngineer may adopt regulations and codes to implement and enforce any provision of any law administered by [the State Engineer].”

Gregory Rock House Ranch, LLC v. New Mexico State Engineer (In re Gregory Rock House Ranch, LLC) (2006) nmb “1978 § 72-2-8(A) and (H), deference is accorded the decisions of the State Engineer.”

— N.M. Stat. § 72-2-8(H) — 6 cases

Lion's Gate Water v. D'ANTONIO (2009) nm “”); see also NMSA 1978, § 72-2-1 (1982) (providing that the State Engineer “has general supervision of waters of the state and of the measurement, appropriation, distribution thereof and such other duties as required”); NMSA 1978, § 72-2-8(H) (1967) (providing that “[a]ny…”

Montgomery v. New Mexico State Engineer (2005) nmctapp “Long-standing administrative constructions of statutes by the agency charged with administrating them are to be given persuasive weight, and should not be lightly overturned, since there is a statutory presumption that the orders of the State Engineer are the proper…”

State Ex Rel. State Engineer v. Lewis (1995) nmctapp “However, the Engineer’s Office has advanced no evidence that it ever issued any such regulation or otherwise challenged the Attorney General’s statutory interpretation or administered the provisions relating to small dams and ponds so as to require a permit. 2 Nor do we find…”

Augustin Plains Ranch v. John D’Antonio (2022) nmctapp “6 NMAC; see also § 72-2-8(H) (“Any regulation, code or order issued by the state engineer is presumed to be in proper implementation of the provisions of the water laws administered by [it].”

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