N.M. Stat. » Chapter 72 — Water Law

N.M. Stat. § 72-5-7

Application; rejection; noncompliance with rules;

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conservation and public welfare. If, in the opinion of the state engineer, there is no unappropriated water available, he shall reject such application. He shall decline to order the publication of notice of any application which does not comply with the requirements of the law and rules and regulations. He may also refuse to consider or approve any application or notice of intention to make application or to order the publication of notice of any application if, in his opinion, approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state.

History: Laws 1907, ch. 49, § 28; Code 1915, § 5683; C.S. 1929, § 151-134; Laws 1941, ch. 126, § 10; 1941 Comp., § 77-506; 1953 Comp., § 75-5-6; Laws 1985, ch. 201, § 4.

ANNOTATIONS

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

The 1985 amendment added "Application" and substituted "conservation and public welfare" for "public interest" in the section heading, deleted "the" preceding, and "thereunder" following, "rules and regulations" near the end of the second sentence, and substituted "approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state" for "approval thereof would be contrary to public interest" at the end of the section. State engineer’s jurisdiction when water is unavailable for appropriation. — The state engineer is required to dispose of applications for permits to appropriate water without a hearing when the state engineer determines that water is unavailable for appropriation. If an aggrieved applicant requests a post-decision hearing before the state engineer to perfect an appeal to the district court, the state engineer is barred from reaching any of the secondary issues that must be considered before a permit to appropriate water can be granted, such as whether the proposed appropriation is contrary to the conservation of water or would be detrimental to the public welfare or to an objector’s water right. Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.

Contrary to public interest. — To be contrary to public interest, project need not be menace to public health or safety; project requiring water in excess of amount unappropriated in stream is contrary to public interest. Young v. Hinderlider, 1910- NMSC-061, 15 N.M. 666, 110 P. 1045.

Point of diversion change. — Transfer of water rights from one county to another and change of purpose does not constitute a new appropriation of surface water. Montgomery v. N.M. State Eng'r, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339, aff'd in part, Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.

Waters already appropriated. — This section applied only to applications to appropriate previously unappropriated surface water, and not to transfers of rights to waters already appropriated. Ensenada Land & Water Ass'n v. Sleeper, 1988-NMCA- 030, 107 N.M. 494, 760 P.2d 787, cert. quashed, 107 N.M. 413, 759 P.2d 200.

Cost. — Mere fact that irrigation under one proposed project would cost more per acre than under subsequently proposed project was not conclusive that former project should be rejected. Young v. Hinderlider, 1910-NMSC-061, 15 N.M. 666, 110 P. 1045.

Law reviews. — For student article, "Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes," see 50 Nat. Resources J. 255 (2010).

For essay, "Water, Theology, and the New Mexico Water Code," see 48 Nat. Resources J. 227 (2008).

For comment, "Water Rights - Failure to Use - Forfeiture," see 6 Nat. Resources J. 127 (1966).

For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).

For comment on State ex rel. Reynolds v. Miranda, 83 N.M. 443, 493 P.2d 409 (1972), see 13 Nat. Resources J. 170 (1973). For note, "Common Law Remedies for Salt Pollution," see 15 Nat. Resources J. 353 (1975).

For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).

For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).

For article, "Adapting to the Changing Demand for Water Use Through Continued Refinement of the Prior Appropriation Doctrine: An Alternative Approach to Wholesale Reallocation," see 29 Nat. Resources J. 435 (1989).

For note, "The Milagro Beanfield War Revisited in Ensenada Land & Water Ass'n v. Sleeper: Public Welfare Defies Transfer of Water Rights," see 29 Nat. Resources J. 861 (1989).

For article, "The Administration of the Middle Rio Grande Basin: 1956-2002," see 42 Nat. Resources J. 939 (2002).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 324.

93 C.J.S. Waters § 180.

Notes of Decisions
Cited in 12 cases, 1984–2016 · leading case: Lion's Gate Water v. D'ANTONIO
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Lion's Gate Water v. D'ANTONIO (2009) nm · cites it 18× “The State Engineer interprets these enabling statutes to require him, if he determines that no unappropriated water is available, to summarily reject applications to appropriate water, see NMSA 1978, § 72-5-7 (1985), as not being “in the form required by the rules and…”
Bounds v. State (2010) nmctapp · cites it 9× “Under Section 72-5-7, if, in his opinion, there is no unappropriated water available, the State Engineer is required to reject the application.”
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth. (2013) nmctapp · cites it 17× “See Lion’s Gate Water, 2009-NMSC-057, ¶ 26 (holding that the OSE’s primary responsibility is to deny an application for use if no water is available and that secondary considerations, such as conservation, public welfare, or impairment to other users become moot if no water is…”
Montgomery v. New Mexico State Engineer (2005) nmctapp · cites it 8× “NMSA 1978, § 72-5-7 (1985), which governs applications seeking new appropriations of surface water, requires the State Engineer to reject an application if the State Engineer determines that there is no unappropriated water available.”
Ensenada Land & Water Ass'n v. Sleeper (1988) nmctapp · cites it 6× “They rely principally on NMSA 1978, Section 72-5-7, which provided: “If, in the opinion of the state engineer, there is no unappropriated water available, he shall reject such application * * *.”
New Mexico ex rel. State Engineer v. Aamodt (2016) nmd · cites it 2× “”); N.M. Stat. Ann. § 72-5-7 (“If, in the opinion of the state engineer, there is no unappropriated water available, he shall reject such application.”
Waterfall Community Water Users Ass'n v. New Mexico State Engineer (2009) nmctapp · cites it 2× “” We agree with the State Engineer that Waterfall’s application seems readily subject to dismissal given the fact that the parties recognize that the water source they seek an appropriation from is fully appropriated.”
Tri-State Generation & Transmission Ass'n v. D'Antonio (2010) nmctapp · cites it 2× “Section 72-5-6; NMSA 1978, § 72-5-7 (1985). The State Engineer also has the authority to grant water right applications subject to conditions to avoid detriment to existing rights or the public welfare.”
City of El Paso Ex Rel. Public Service Board v. Reynolds (1984) nmd · cites it 3× “New Mexico’s surface water statutes, though, contain a similar criterion: the State Engineer may deny permits for in-state use “if, in his opinion, approval thereof would be contrary to public interest.”
Bounds v. State (2011) nmctapp · cites it 9× “Under Section 72-5-7, if, in his opinion, there is no unappropriated water available, the State Engineer is required to reject the application.”
Carangelo v. Albuquerque-Bernalillo Co. Water Utility Authority (2013) nmctapp · cites it 17× “See Lion’s Gate Water, 2009-NMSC-057, ¶ 26 (holding that the OSE’s primary responsibility is to deny an application for use if no water is available and that secondary considerations, such as conservation, public welfare, or impairment to other users become moot if no water is…”
Carangelo v. Albuquerque-Bernalillo County Water Utility Authority (2014) nmctapp · cites it 17× “See Lion’s Gate Water, 2009-NMSC-057, ¶ 26 (holding that the OSE’s primary responsibility is to deny an application for use if no water is available and that secondary considerations, such as conservation, public welfare, or impairment to other users become moot if no water is…”
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