N.M. Stat. » Chapter 72 — Water Law
New Mexico Statutes

N.M. Stat. § 72-5-4 (2026)

Notice; publication

✓ current as of May 2026
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Upon the filing of an application that complies with the provisions of this article and the rules established pursuant to this article, accompanied by the proper fees, the state engineer shall proceed in accordance with the provisions of Section 1 [72-2-20 NMSA 1978] of this 2019 act regarding notice of the application. The notice shall give all essential facts as to the proposed appropriation; among them, the places of appropriation and of use, amount of water, the purpose for which it is to be used, name and address of applicant and the time when the application shall be taken up by the state engineer for consideration.

History: Laws 1907, ch. 49, § 26; Code 1915, § 5681; C.S. 1929, § 151-132; Laws 1941, ch. 126, § 8; 1941 Comp., § 77-504; 1953 Comp., § 75-5-4; 2001, ch. 26, § 1; 2019, ch. 88, § 2.

ANNOTATIONS

Compiler’s notes. — The 1915 Code compilers substituted "this article" for "this act," presumably thereby extending the reference to include all the provisions of Code 1915, ch. 114, art. I, not solely those derived from Laws 1907, ch. 49. The provisions of said art. I are compiled as 19-7-26, 72-1-1, 72-1-2, 72-1-5, 72-2-1 to 72-2-7, 72-2-9, 72-2-10, 72-3-1 to 72-3-5, 72-4-1, 72-4-13, 72-4-15, 72-4-17 to 72-4-19, 72-5-1 to 72-5-4, 72-5-6 to 72-5-24, 72-5-26 to 72-5-31, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6 and 72-9-1 to 72-9-3 NMSA 1978.

Cross references. — For publication of legal notice, see Chapter 14, Article 11 NMSA 1978.

The 2019 amendment, effective July 1, 2019, removed certain notice provisions and directed the state engineer to proceed under the new notice provisions of Section 72-2- 20 NMSA 1978; and deleted "instruct the applicant to publish notice thereof in a form and in a newspaper prescribed by the state engineer, in some newspaper that is published and distributed in each county affected by the diversion and in each county where the water will be or has been put to beneficial use, or if there is no such newspaper, then in some newspaper of general circulation in the stream system, once a week for three consecutive weeks" and added "proceed in accordance with the provisions of Section 1 of this 2019 act regarding notice of the application", and deleted the last sentence of the section, which related to requirements regarding proof of publication.

The 2001 amendment, effective June 15, 2001, inserted "and in a newspaper" preceding "prescribed by"; inserted the language beginning "that is published and distributed" and ending "then in some newspaper"; and made stylistic changes throughout the section.

Notice of publication is necessary only when water is available for appropriation. — Where the state engineer determined that no unappropriated water was available for the applicant; the state engineer summarily rejected the applicant’s application for a permit to appropriate water; and the applicant nevertheless initiated a notice publication of applicant’s application to appropriate water, the applicant’s self-published notice was unnecessary, unauthorized and of no legal effect. Lion’s Gate Water v. D’Antonio, 2009- NMSC-057, 147 N.M. 523, 226 P.3d 622.

Notice of publication is necessary only when water is available for appropriation either by the state engineer or by the district court on appeal. Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.

Appropriation procedure unlawful. — The state engineer's water rights dedication practice and procedure imposing a condition on the groundwater permit requiring that at some future time the applicant acquire and retire a specified amount of surface water rights in the related stream system is unlawful because it precludes full consideration of public welfare and water conservation resulting in an impairment of existing water rights at the time the new conditional water right is approved, since the rights are not identified until the permit is issued, preventing public notice and comment. 1994 Op. Att'y Gen. No. 94-07.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 322.

93 C.J.S. Waters § 180.

Notes of Decisions
Cited in 16 cases, 1964–2014 · leading case: Storm Ditch v. D'Antonio, 263 P.3d 932 (N.M. Ct. App. 2011).
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Storm Ditch v. D'Antonio, 263 P.3d 932 (N.M. Ct. App. 2011). · cites it 28× “{3} The Applicants sought to comply with the statutory notice requirement, NMSA 1978, Section 72-5-4 (2001), by publishing a notice of the application in a local newspaper on three occasions, with the last publication occurring on January 13, 2005.”
SISTERS OF CHARITY, ETC. v. Cnty. of Bernalillo, 596 P.2d 255 (N.M. 1979). · cites it 9× “Laws 1973, ch. 258, § 156, as amended by N.”
Lion's Gate Water v. D'ANTONIO, 226 P.3d 622 (N.M. 2009). · cites it 3× “The State Engineer apparently contacted the newspaper carrying the notice to request that it terminate publication, presumably for the reason that Lion’s Gate’s notice did not strictly comply with NMSA 1978, Section 72-5-4 (2001), which requires the State Engineer to prescribe…”
Montgomery v. Lomos Altos, Inc., 2007 NMSC 002 (N.M. 2006). · cites it 2× “{5} Applicants published a notice of the applications pursuant to NMSA 1978, Section 72-5-4 (1941, prior to 2001 amendment).”
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014 NMCA 32 (N.M. Ct. App. 2013). · cites it 9× “Section 72-5-4 authorizes the OSE to publish notice after the filing of an application concerning surface water, “where the water will be or has been put to beneficial use” and specifies the form requirements for that notice. Section 72-5-4 requires the notice to include “all…”
Tri-State Generation & Transmission Ass'n v. D'Antonio, 249 P.3d 932 (N.M. Ct. App. 2010). · cites it 3× “Licenses are issued in the final stage of the water right permitting process, which involves an initial application to the State Engineer, publication of the application, a protest period, evaluation by the State Engineer, an administrative hearing, and an appeals process to the…”
Lovelace Ctr. for the Health Sciences v. Beach, 606 P.2d 203 (N.M. Ct. App. 1980). · cites it 3× “” Since the repeal of § 72-5-4, supra, our statutes have not specifically referred to refunds of erroneous or illegally charged taxes.”
Sandia Sav. & Loan Ass'n v. Kleinheim, 391 P.2d 324 (N.M. 1964). · cites it 3× “1953, and having failed to do so had no standing to sue under § 72-5-4, N.M.S.A. 1953, and accordingly dismissed the complaint.”
Turner Ex Rel. Manzano Resources v. Bassett, 2005 NMSC 9 (N.M. 2005). “Publication of notice of application, opportunity for the filing of objection or protests and a hearing on the application shall be provided as required by Sections 72-5-4 and 72-5-5 NMSA 1978. (Emphasis added.”
State Ex Rel. Castillo Corp. v. New Mexico State Tax Comm'n, 443 P.2d 850 (N.M. 1968). “, to prescribe an assessment ratio so that property shall be uniformly assessed in proportion to its value. It is argued that this action is premature and that petitioners should pay the tax under protest and thereafter file the necessary litigation.”
McCasland v. Miskell, 890 P.2d 1322 (N.M. Ct. App. 1994). “Publication of notice of application, opportunity for the filing of objections or protests and a hearing on the application shall be provided as required by Sections 72-5-4 and 72-5-5 NMSA 1978. The State Engineer also points out that the 28.”
Sw. Pub. Serv. Co. v. Chaves Cnty., 512 P.2d 73 (N.M. 1973). “Petitioner-Appellant (“Southwestern”) filed suit in Chaves County District Court pursuant to § 72-5-4, N.M.S.A.1953 for the recovery of certain property taxes paid under protest for the 1970 tax year.”
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