reglab/statecodes huggingface dataset:
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-5.1 - Purposes.

The state of New Mexico recognizes the importance of public welfare and conservation of water in administering its public waters. This act affords standing for those asserting legitimate concerns involving public welfare and conservation of water in a manner which avoids unduly burdening the administrative and judicial processes.
History:
Laws 1985, ch. 201, § 1.
ANNOTATIONS
Compiler's notes.
— The term "this act," referred to at the beginning of the second sentence, means Laws 1985, ch. 201, which is compiled as 72-5-5, 72-5-5.1, 72-5-6, 72-5-7, 72-5-23, 72-5-24, 72-12-3, 72-12-7 and 72-12B-1 NMSA 1978.
Pueblo rights doctrine unduly interferes
with the state's regulation of water rights.
State ex rel. Martinez v. City of Las Vegas
, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-8 - Construction of works; additional time.

Construction of works shall be diligently prosecuted in order that the project may be completed within the time limit set by the state engineer in the permit, provided that the state engineer may upon the request of the applicant allow additional time for the completion of works equal to the time during which work was prevented by acts of God, operation of law or other causes beyond the control of the applicant.
History:
Laws 1907, ch. 49, § 29; Code 1915, § 5687; C.S. 1929, § 151-138; Laws 1941, ch. 126, § 11; 1941 Comp., § 77-507; 1953 Comp., § 75-5-7.
ANNOTATIONS
Cross references.
— For extension of time for construction,
see
72-5-14 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Financial problems.
— Financial inability to prosecute work required, under permit to appropriate water, does not justify extension of time by territorial engineer, for completion of the work.
Rio Puerco Irrigation Co. v. Jastro
, 1914-NMSC-041, 19 N.M. 149, 141 P. 874.
Length of extension.
— There is no authority for extending time of completion of construction eleven years. 1920 Op. Att'y Gen. No. 20-2470.
Law reviews.
— For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 393.
93 C.J.S. Waters § 180.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-9 - Supervision; inspection; completion of works; alterations.

For the supervision of the construction of works for the storage, diversion or carriage of water there shall be in charge a registered professional engineer, whose qualifications have been approved by the state engineer. This engineer shall have full authority to carry out such inspections and instructions that are deemed necessary by the state engineer. On the date set for the completion of the work, or prior thereto, upon notice from the owner that the work has been completed, the state engineer shall cause the work to be inspected, after due notice to the owner of the permit. Such inspection shall be thorough and complete, in order to determine the actual capacity of the works, their safety and efficiency. If not properly and safely constructed, as plans approved, the state engineer may require the necessary changes to be made within a reasonable time, to be fixed by him and shall not issue his certificate of completion until such changes are made. If at or before the expiration of said time, good cause is shown why said change could not be made within said time, then additional time may be allowed in which to make said change. Failure to make such changes shall cause the postponement of the priority under the permit for such time as may elapse from the date for completing such changes until made to the satisfaction of the state engineer, and applications subsequent in time shall have the benefit of such postponement of priority: the state engineer, if he deems it necessary to the public safety, may bring in consulting engineers, geologists or other expert consultants, compensation for which will be paid for by the owner of the permit; provided, that for works involving the diversion of not exceeding twenty cubic feet of water per second or a dam not exceeding ten feet in height from the lowest natural ground surface elevation the state engineer may, in his discretion, waive the above provisions and accept the report of the inspection by a registered professional engineer.
History:
Laws 1907, ch. 49, § 30; Code 1915, § 5688; C.S. 1929, § 151-139; Laws 1937, ch. 178, § 4; 1941, ch. 126, § 12; 1941 Comp., § 77-508; 1953 Comp., § 75-5-8.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waterworks and Water Companies § 63.
Covenant to maintain or repair dam as running with land, 41 A.L.R. 1366, 102 A.L.R. 781, 118 A.L.R. 982.
93 C.J.S. Waters § 147.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-10 - [State engineer's certificate of construction.]

When the works are found in satisfactory condition, after inspection, the state engineer shall issue his certificate of construction, setting forth the actual capacity of the works and such limitations on the water right as shall be warranted by the condition of the works, but in no manner extending the rights described in the permit.
History:
Laws 1907, ch. 49, § 31; Code 1915, § 5689; C.S. 1929, § 151-140; 1941 Comp., § 77-509; 1953 Comp., § 75-5-9.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 180.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-11 - Inspection and correction of unsafe works.

If the state engineer shall in the course of his duties find that any works constructed for the storage, diversion or carriage of water are unsafe and a menace to life or property, he shall at once notify the owner or agent, specifying the changes necessary and allowing a reasonable time for putting the works in safe condition. Upon the request of any party, accompanied by the estimated cost of inspection, the state engineer shall cause any alleged unsafe works to be inspected. If they shall be found unsafe by the state engineer, the money deposited by such party shall be refunded, and the fees for inspection shall be paid by the owner of such works; and, if not paid by him within thirty days after the decision of the state engineer, shall be a lien against the property of such owner, to be recovered by suit instituted by the district attorney of the county at the request of the state engineer. The state engineer may, when in his opinion necessary, inspect any works under construction for the storage, diversion or carriage of water and may require any changes necessary to secure their safety; and the fees for such inspection shall be a lien on any property of the owner and shall be subject to collection as provided herein; provided that nothing contained in this section shall be construed to make works being constructed or owned by the United States while under supervision of officers of the United States subject to inspection by the state engineer.
Nothing contained in this section and no action or failure to act under this section shall be construed:
A. to create any liability in the state or its officers or employees for the recovery of damages caused by such action or failure to act; or
B. to relieve the owner or operator of water impoundment works of the legal duties, obligations or liabilities incident to the ownership or operation of water impoundment works.
History:
Laws 1907, ch. 49, § 32; Code 1915, § 5690; C.S. 1929, § 151-141; 1941 Comp., § 77-510; 1953 Comp., § 75-5-10; Laws 1979, ch. 314, § 1.
ANNOTATIONS
Cross references.
— For priority of liens,
see
72-5-16 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Property outside of New Mexico is not subject to lien
under this section.
Turley v. Furman
, 1911-NMSC-030, 16 N.M. 253, 114 P. 278.
Cost of inspection.
— Cost of inspection of dam by state engineer cannot be cast upon owner, but must be paid by one requesting it (unless found unsafe, as provided in this section). 1912 Op. Att'y Gen. No. 12-938.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waterworks and Water Companies § 63.
93 C.J.S. Waters § 180.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-12 - Failure to comply with state engineer order; penalty.

Any owner of works for the diversion, storage, carriage or impoundment of water, his agent or employees, who, following notice to place such works in a safe condition as provided in Section 72-5-11 NMSA 1978, fails to take action specified by the state engineer within the time allowed, shall be guilty of a misdemeanor. Any violation of this section shall be punishable by a fine of not more than two hundred fifty dollars ($250) for each offense or by imprisonment for a definite term not to exceed six months, or both. It is the duty of the state engineer to give prompt notice to the district attorney of the county in which the works are located in case of such violation. The district attorney shall at once proceed against the owner and all parties responsible therefor.
History:
Laws 1907, ch. 49, § 33; Code 1915, § 5691; C.S. 1929, § 151-142; 1941 Comp., § 77-511; 1953 Comp., § 75-5-11; Laws 1979, ch. 314, § 2.
ANNOTATIONS
Cross references.
— For penalty for violation of this section,
see
72-8-6 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Community acequias.
— Laws 1907, ch. 49 does not regulate community acequias constructed prior to passage thereof as to right to change point of diversion from stream into such acequias.
Pueblo of Isleta v. Tondre
, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 116.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-13 - [Issuance of license to appropriate water.]

On or before the date set for the application of the water to a beneficial use, the state engineer shall cause the works to be inspected, after due notice to the owner of the permit. Upon the completion of such inspection, the state engineer shall issue a license to appropriate water to the extent and under the condition of the actual application thereof to beneficial use, but in no manner extending the rights described in the permit: provided, that the inspection to determine the amount of water applied to beneficial use shall be made at the same time as that of the constructed work, if requested by the owner, and if such action is deemed proper by the state engineer.
History:
Laws 1907, ch. 49, § 34; Code 1915, § 5692; C.S. 1929, § 151-143; 1941 Comp., 77-512; 1953 Comp., § 75-5-12.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
State engineer may afford legal protection for instream flows for recreational, etc., purposes.
— Neither the New Mexico constitution nor statutes governing appropriation and use of surface water prohibit the state engineer from affording legal protection for instream flows for recreational, fish or wildlife, or ecological purposes, by conditioning approval of a transfer of an existing water right to an instream use on installation of gauging devices. 1998 Op. Att'y Gen. No. 98-01.
Law reviews.
— For article, "Legislation on Domestic and Industrial Uses of Water: A Comparative Review," see 24 Nat. Resources J. 143 (1984).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 249.
93 C.J.S. Waters § 219.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-15 - [Common use; enlargement and maintenance of works; lien for costs.]

Whenever in accordance with the provisions of this article, any person, firm, association or corporation shall enlarge an existing canal, acequia, reservoir or other works, in order to use the same in common with the former owner, such person, firm, association or corporation, shall have and enjoy the right to the use and benefit of the quantity of water added to the capacity of such structure or work by such enlargement. Where two or more owners are using or have the right to use the same canal, acequia, reservoir or other waterworks, and one or more of such owners shall fail or neglect to do his or their proper share of the work or to furnish and pay for his or their proper share of the materials necessary for the maintenance, repair and operation thereof, any one or more of such owners may, after ten days' notice, proceed to perform such work, and furnish such materials, and may recover from each delinquent owner his proportionate share of the cost of such work and materials by a suit in any court of competent jurisdiction, and shall have a lien therefor upon such delinquent owner's share in said canal, acequia, reservoir or other works enforceable in the same manner as provided by law for the enforcement of mechanic's liens.
History:
Laws 1907, ch. 49, § 61; Code 1915, § 5719; C.S. 1929, § 151-172; 1941 Comp., § 77-514; 1953 Comp., § 75-5-14.
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 mechanic's liens,
see
Chapter 48, Article 2 NMSA 1978.
For conservancy districts,
see
Chapter 73, Article 14 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 188.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-16 - [Priority of liens.]

All liens on land, provided for in this article shall be superior in right to all mortgages or other encumbrances placed upon the land and the water appurtenant thereto or used in connection therewith.
History:
Laws 1907, ch. 49, § 52; Code 1915, § 5711; C.S. 1929, § 151-164; 1941 Comp., § 77-515; 1953 Comp., § 75-5-15.
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.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-17 - Excess waters; sale.

The owner or owners of any works for the storage, diversion or carriage of water who may make application to store or carry water in excess of their needs for irrigation or other beneficial use, shall be required, as trustee of such right, to deliver such surplus at reasonable and uniform rates to parties entitled to use the same under like conditions and circumstances.
History:
Laws 1907, ch. 49, § 39; Code 1915, § 5698; C.S. 1929, § 151-151; Laws 1941, ch. 126, § 14; 1941 Comp., § 77-516; 1953 Comp. § 75-5-16.
ANNOTATIONS
Cross references.
— For provision making willful waste of water unlawful,
see
72-8-4 NMSA 1978.
For conservancy districts,
see
Chapter 73, Article 14 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 328.
93 C.J.S. Waters § 186.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-19 - [Standards for measuring flow and volume of water.]

The standard of measurement of the flow of water shall be the cubic foot per second of time; the standard of measurement of the volume of water shall be the acre-foot, being the amount of water upon an acre covered one foot deep, equivalent to forty-three thousand five hundred and sixty cubic feet. The miner's inch shall be regarded as one-fiftieth of a cubic foot per second in all cases, except when some other equivalent of the cubic foot per second has been specifically stated by contract, or has been established by actual measurement or use.
History:
Laws 1907, ch. 49, § 41; Code 1915, § 5700; C.S. 1929, § 151-153; 1941 Comp., § 77-518; 1953 Comp., § 75-5-18.
ANNOTATIONS
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 4.
93 C.J.S. Waters § 186.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-20 - Headgates and measuring devices.

Every ditch owner shall, when requested to do so by the state engineer, construct and maintain a substantial headgate at the point where the water is diverted, and shall construct a measuring device, of a design approved by the state engineer, at the most practical point or points for measuring and apportioning the water as determined by the state engineer. The state engineer may order the construction of such device by the ditch owner and, if not completed within twenty days thereafter, refuse to deliver water to such owner. The taking of the water by such ditch owner, after refusal by the state engineer to deliver water to him until the construction of such device and the approval thereof by the state engineer, shall be a misdemeanor. Such devices shall be so arranged that they can be locked in place, and when locked by the state engineer or his authorized agent, for the measurement or apportionment of water, it shall be a misdemeanor for any unauthorized person to interfere with, disturb or change the same.
History:
Laws 1907, ch. 49, § 46; Code 1915, § 5705; C.S. 1929, § 151-158; Laws 1941, ch. 126, § 19; 1941 Comp., § 77-519; 1953 Comp., § 75-5-19.
ANNOTATIONS
Cross references.
— For penalty for violation of this section,
see
72-8-6 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Rights and priorities to be adjudicated.
— For purpose of apportionment of water, engineer has no jurisdiction over any old ditch system, until rights and priorities of owners of such system have been adjudicated in accord with terms of the act.
Pueblo of Isleta v. Tondre
, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
Interstate irrigation project.
— Irrigation project upon waters of natural stream running from Colorado into New Mexico, when point of diversion, headgate and about six miles of irrigation ditch are in Colorado, is not in jurisdiction of territorial engineer of New Mexico.
Turley v. Furman
, 1911-NMSC-030, 16 N.M. 253, 114 P. 278.
Law reviews.
— For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 186.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-21 - [Recording of permits, decrees and documents; certified copies.]

All permits, decrees and documents granting, defining or limiting water rights and rights of owners of canals, reservoirs and works for conducting, storing or appropriating water in this state shall be recorded in the office of the county clerk of the county in which the property, canal, reservoir or work is situated. When so recorded, copies of such permits, decrees and documents certified by the county clerk shall be admitted in evidence in any court of the state as of equal validity with the original.
History:
Laws 1907, ch. 49, § 71; Code 1915, § 5728; C.S. 1929, § 151-177; 1941 Comp., § 77-520; 1953 Comp., § 75-5-20.
ANNOTATIONS
Cross references.
— For filing and recording of changes of ownership in water rights,
see
72-1-2.1 NMSA 1978.
For self-authentication of certified copies of public records,
see
Paragraph D of Rule 11-902 NMRA.
For proof of official records,
see
Rule 11-1005 NMRA.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 176.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-25 - Emergency; change of point of diversion; procedure.

A. An appropriator of water may change the place of diversion, storage or use of water upon application to and approval of the state engineer without following the requirements of Section 72-5-23 NMSA 1978 relating to publication of notice if an emergency exists in which the delay caused by following the provisions of Section 72-5-23 NMSA 1978 would result in crop loss or other serious economic loss to the appropriator and if the state engineer determines that no foreseeable detriment exists to rights of others having valid and existing rights to the use of the waters of the stream system. An application under this section shall be in the form and manner prescribed by the state engineer and shall contain specific facts supporting the existence of the emergency.
B. An applicant for approval of a change of place of diversion, storage or use of water under this section shall, within thirty days of an approval granted under this section by the state engineer, comply with the requirements of Section 72-5-23 NMSA 1978.
C. The emergency approval provided under this section shall continue in effect only until the state engineer enters his final decision in accordance with Section 72-5-24 NMSA 1978.
History:
1953 Comp., § 75-5-23.1, enacted by Laws 1971, ch. 162, § 1.
ANNOTATIONS
Cross references.
— For state engineer,
see
72-2-1 NMSA 1978.
Law reviews.
— For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-30 - [Effect of return flow above diversion or storage works of other appropriators.]

In cases of applications for permits to impound and utilize waters of any stream of flood waters under conditions which would cause or permit a considerable return flow of such waters into their natural channel above the diversion or storage works of other appropriators or of others using or who have acquired the right to use water from said stream or stream system, the state engineer is authorized to approve such applications whenever such storage or use of water by the upper owner or owners would not result in depriving such lower users or appropriators of water to the extent of their reasonable requirements.
History:
Laws 1909, ch. 128, § 2; Code 1915, § 5685; C.S. 1929, § 151-136; 1941 Comp., § 77-528; 1953 Comp., § 75-5-28.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters §§ 128, 129.
Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.
93 C.J.S. Waters § 181.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-31 - [Appeal; prior rights not impaired.]

There shall be the same right of appeal from the action of the state engineer in approving or rejecting any such application as is provided in this article, Section 72-7-1 NMSA 1978, and nothing in this article shall be construed to impair prior vested rights or the rights of prior appropriators of public waters of this state, or the rights of those who have filed or may file applications to appropriate public waters in compliance with existing laws of the state of New Mexico.
History:
Laws 1909, ch. 128, § 3; Code 1915, § 5686; C.S. 1929, § 151-137; 1941 Comp., § 77-529; 1953 Comp., § 75-5-29.
ANNOTATIONS
Compiler's notes.
— The compilers of the 1915 Code substituted the references to "this article" and the specific section therein, for references to Laws 1907, ch. 49. For presently compiled provisions of the article,
see
compiler's note to 72-5-29 NMSA 1978.
Cross references.
— For appeal de novo from decision, act or refusal to act of state executive officer or body in matters relating to water rights,
see
N.M. Const., art. XVI, § 5.
For the state engineer,
see
72-2-1 NMSA 1978.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 93 C.J.S. Waters § 204.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-34 - State transportation commission; change of water use; application, notice and hearing.

Whenever the state transportation commission makes application to the state engineer for a change of location of use, a change of method of use, change of point of diversion, advance withdrawals or withdrawals of accrued unused waters of any water right, whether such water right be for surface, subsurface, artesian or underground waters and whether or not either the location of the changed use or the location of the point of diversion or both be within or without the boundaries of any declared underground water basin or irrigation or conservancy district, and whatever the manner of acquisition of such water right, and such water right is to be used for the construction, reconstruction, maintenance or repair of public roads, streets, highways and airports, the state engineer may authorize such change of location of use, change of method of use, change of point of diversion, advance withdrawals or withdrawals of accrued unused water after publication and hearing as provided in Section 72-12-3 NMSA 1978, when in the opinion of the state engineer such change of location of use, method of use, point of diversion, advance withdrawals or withdrawals of accrued unused water will not be detrimental to the other holders of valid water rights.
History:
1953 Comp., § 75-5-32, enacted by Laws 1959, ch. 191, § 1; 2003, ch. 142, § 91.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
The 2003 amendment,
effective July 1, 2003, added the section heading; substituted "state transportation commission" for "state highway commission" near the beginning of the section; and updated the statutory reference near the end of the section.
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 273.
Right to hasten by improvement of street or highway the flow of surface water along natural drainways, 5 A.L.R. 1530, 36 A.L.R. 1463.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-35 - State transportation commission; advance water withdrawal.

The state engineer may authorize the state transportation commission, holding any artesian or underground water right for the construction, reconstruction, maintenance or repair of public roads, streets, highways and airports, to make withdrawals of water in advance of the accrual of such water in such amounts as the state engineer may determine will not be detrimental to the other holders of valid water rights, but in no case shall such advance withdrawals exceed an amount equal to five times the annual amount of the water right actually held by the withdrawing holder.
History:
1953 Comp., § 75-5-33, enacted by Laws 1959, ch. 191, § 2; 2003, ch. 142, § 92.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
The 2003 amendment,
effective July 1, 2003, added the section heading; and substituted "state transportation commission" for "state highway commission".
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-36 - State transportation commission; unused water accrual; withdrawal rate; accounting.

The state engineer may permit the state transportation commission, when it is engaged in the construction, reconstruction, maintenance or repair of public roads, streets, highways and airports, to accrue unused water under one or more artesian or underground water rights for such length of time not to exceed five years as he may deem reasonable and permit the state transportation commission to withdraw such accrued water within such period of time as it may be required, but not at a rate that will be detrimental to the holders of other valid water rights. The state engineer shall require the state transportation commission holding any water right and desirous of proceeding under the authorization of Sections 72-5-34 through 72-5-38 NMSA 1978 to file periodic accountings of accruals and withdrawals by basins or districts in such form, on such dates and at such intervals as the state engineer shall designate.
History:
1953 Comp., § 75-5-34, enacted by Laws 1959, ch. 191, § 3; 2003, ch. 142, § 93.
ANNOTATIONS
Cross references.
— For the state engineer,
see
72-2-1 NMSA 1978.
The 2003 amendment,
effective July 1, 2003, added the section heading; substituted "state transportation commission" for "state highway commission" in three places; and substituted "Sections 72-5-34 through 72-5-38 NMSA 1978" for "this act" in the last sentence.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-37 - State transportation commission; transfer of water rights to unused water; reversion.

If the state transportation commission, holding any water rights to be used for the construction, reconstruction, maintenance or repair of public roads, streets, highways and airports, transfers ownership of all of its water rights in one basin under which there has been an accrual of unused water, any accrued unused water shall lapse and revert to unappropriated water and the right to such water shall not pass on such transfer. If a partial water right or one of several water rights within a declared underground basin or irrigation or conservancy district is transferred, the accrued unused water, if any, shall not pass to the transferee but may be moved in accordance with the provisions of Section 72-5-34 NMSA 1978 to the point of diversion of a water right retained by the state transportation commission within the same basin but not to exceed five times the annual amount of the water right retained.
History:
1953 Comp., § 75-5-35, enacted by Laws 1959, ch. 191, § 4; 2003, ch. 142, § 94.
ANNOTATIONS
The 2003 amendment,
effective July 1, 2003, added the section heading; substituted "state transportation commission" for "state highway commission" in two places; and substituted "Section 72-5-34 NMSA 1978" for "Section 1 hereof" near the end of the section.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-38 - [State water rights for highway purposes and airports; nonforfeiture for failure to use.]

Neither the state nor any agency, department, bureau or commission thereof holding any water rights to be used for the construction, reconstruction, maintenance or repair of public roads, streets, highways and airports, whether surface, subsurface, artesian or underground and whatever the manner of acquisition, shall lose or forfeit such water right for failure to beneficially use all or any part of such water right.
History:
1953 Comp., § 75-5-36, enacted by Laws 1959, ch. 191, § 5.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-39 - Illegal application of water; injunction or other relief.

No person shall use the public waters of the state of New Mexico except in accordance with the laws of the state of New Mexico. No person shall divert water or apply water to land without having a valid water right to do so, or apply it to purposes for which no valid water right exists. The state engineer may apply for and obtain an injunction in the district court of any county in which water is being diverted or the land affected is located, against any person, firm or corporation who shall divert water or commence the construction of works by which to divert water, in violation of statute, or who shall cause or permit the application of said water upon lands or to purposes for which no valid water right exists. This provision shall in no way be construed to affect the existing right of a court of equity in the exercise of its general equity powers to grant relief to the state of New Mexico by injunction or otherwise. This section shall not apply to waters within the benefited areas of a conservancy district unless the district refuses or fails to stop or correct the illegal use of water after notification by the state engineer.
History:
1953 Comp., § 75-5-37, enacted by Laws 1965, ch. 285, § 7.
ANNOTATIONS
Cross references.
— For injunctions,
see
Rules 1-065 and 1-066 NMRA.
For the state engineer,
see
72-2-1 NMSA 1978.
State engineer has jurisdiction over surface waters in New Mexico regardless of their diversion location.
— Where the state engineer sought to enjoin petitioners' illegal use of Animas river surface water to irrigate additional acreage that was not part of an adjudication of water rights under a district court decree and for which petitioners have no permit, petitioners' argument that the state engineer lacked statutory authority to regulate the use of surface water from the Animas river for irrigation purposes when that water is diverted in Colorado and transported to New Mexico by a ditch is without merit, because the state engineer has the statutory authority to regulate the use of surface waters in New Mexico regardless of their diversion location, and therefore the state engineer has jurisdiction to regulate petitioners' application to beneficial use of Animas river surface waters diverted in Colorado to the ditch that conveys their flow to New Mexico.
State Engineer v. Diamond K Bar Ranch, LLC
, 2016-NMSC-036.
Law reviews.
— 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).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 259.
93 C.J.S. Waters §§ 33, 34.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-1 - Short title.

This act [72-5A-1 to 72-5A-17 NMSA 1978] may be cited as the "Ground Water Storage and Recovery Act".
History:
Laws 1999, ch. 285, § 1.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-2 - Legislative findings.

The legislature finds that:
A. conjunctive use and administration of both surface and ground waters are essential to the effective and efficient use of the state's limited water supplies; and
B. ground water recharge, storage and recovery have the potential to:
(1) offer savings in the costs of capital investment, operation and maintenance and flood control and may improve water and environmental quality;
(2) reduce the rate at which ground water levels will decline and may prevent overstressing or dewatering aquifer systems;
(3) promote conservation of water within the state;
(4) serve the public welfare of the state; and
(5) may lead to more effective use of the state's water resources.
History:
Laws 1999, ch. 285, § 2.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-3 - Definitions.

As used in the Ground Water Storage and Recovery Act:
A. "aquifer" means a geologic formation that contains sufficient saturated material to be capable of storing and transmitting water in usable quantities to a well;
B. "area of hydrologic effect" means the underground area where the water is stored and located, hydrologically connected surface waters, adjacent underground areas in which water rights exist that may be impaired, the land surface above the underground areas and any additional land surface used for seepage or infiltration;
C. "governmental entity" means the interstate stream commission, an Indian nation, tribe or pueblo or state political subdivision, including a municipality, county, acequia, irrigation district or conservancy district;
D. "project" means a permitted, engineered facility designed specifically, constructed and operated pursuant to the Ground Water Storage and Recovery Act, to add measured volumes of water by injection or infiltration to an aquifer or system of aquifers, to store the water underground and to recover it for beneficial use pursuant to the Ground Water Storage and Recovery Act but shall not include in situ leach mining operations or water flood operations for petroleum recovery that require approval by the state engineer outside the Ground Water Storage and Recovery Act; and
E. "stored water" means water that has been stored underground for the purpose of recovery and permitted pursuant to the Ground Water Storage and Recovery Act.
History:
Laws 1999, ch. 285, § 3; 2003, ch. 206, § 1.
ANNOTATIONS
The 2003 amendment,
effective June 20, 2003, in Subsection C, inserted "the interstate stream commission" near the beginning.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-6 - State engineer; powers and duties; permit; monitoring requirements.

A. The state engineer shall issue a permit to construct and operate a project if the applicant has provided a reasonable demonstration that:
(1) the applicant has the technical and financial capability to construct and operate the project;
(2) the project is hydrologically feasible;
(3) the project will not impair existing water rights or the state's interstate obligations;
(4) the project will not be contrary to the conservation of water within the state;
(5) the project will not be detrimental to the public welfare of the state;
(6) the applicant has completed applications for all permits required by state and federal law;
(7) the applicant has a valid water right quantified by one of the following legal processes:
(a) a water rights adjudication;
(b) a consent decree;
(c) an act of congress, including a negotiated settlement ratified by congress;
(d) a contract pursuant to 43 USC 620 et seq.; or
(e) an agreement with an owner who has a valid water right subject to an application for a change in purpose, place of use or point of diversion; and
(8) that [sic] the project will not cause harm to users of land and water within the area of hydrologic effect;
B. A permit for a project shall include:
(1) the name and mailing address of the person to whom the permit is issued;
(2) the name of the declared underground water basin in which the project will be located;
(3) the capacity and plan of operation of the project;
(4) any monitoring program required;
(5) all conditions required by or regulations adopted pursuant to the Ground Water Storage and Recovery Act; and
(6) other information the state engineer determines to be necessary.
C. The permit shall not become effective until the applicant obtains all other required state and federal permits.
D. The state engineer shall adopt regulations to carry out the provisions of the Ground Water Storage and Recovery Act, including monitoring the operation of projects and their effects on other water users in the area of hydrologic effect, including an Indian nation, tribe or pueblo. In determining monitoring requirements, the state engineer shall cooperate with all government entities that regulate and monitor the quality of water, including the department of environment.
History:
Laws 1999, ch. 285, § 6.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— As referenced in Subparagraph A(7)(d), 43 U.S.C.S. 620 et seq. is the codification of the Colorado River Storage Project Act.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-7 - Modification and assignment of project permit.

A. The state engineer may modify the conditions of a permit if he finds that modifications are necessary and will not impair existing water rights or the water quality of the aquifer. The applicant shall provide notice of any proposed modifications as required by the Ground Water Storage and Recovery Act for new applications. Objections may be filed in the manner of objections to new applications.
B. The permittee may apply to the state engineer for approval to assign a permit to another person. The state engineer shall approve the assignment if the state engineer determines that all provisions of the Ground Water Storage and Recovery Act will be met.
History:
Laws 1999, ch. 285, § 7.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-8 - Stored water not public; stored water not subject to forfeiture; use or exchange of recovered water.

A. Water added to an aquifer or system of aquifers to be stored for subsequent diversion and application to beneficial use pursuant to a project permit is not public water and is not subject to forfeiture pursuant to Section 72-5-28 or 72-12-8 NMSA 1978.
B. A permittee may use water recovered only for the same purposes for which the water was authorized before it was stored, unless an application for a change in the purpose of use, place of use or point of diversion is filed and approved pursuant to Section 72-5-23, 72-5-24 or 72-12-7 NMSA 1978, as applicable.
History:
Laws 1999, ch. 285, § 8.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-9 - Storage account to be established; limit on amount of water recovered.

The state engineer shall establish a storage account for each project. If the project has stored water from more than one source, he shall establish subaccounts for each source of water. A permittee may recover only the recoverable amount of stored water from a well. For purposes of this section, "recoverable amount" means that amount of water, as determined by the state engineer, that has reached the aquifer, remained within the area of hydrologic effect and is conducive to recovery without impairment to existing uses.
History:
Laws 1999, ch. 285, § 9.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-10 - Annual report to state engineer; penalty for failure to file.

A. Each permittee shall file an annual report with the state engineer that includes:
(1) the total quantity of stored water and recovered water;
(2) the water quality of the stored water, the receiving aquifer and the recovered water;
(3) a sworn affidavit attesting to the truthfulness and accuracy of the report's data; and
(4) a measurement of the static level of the water table.
B. The annual report shall be maintained on a calendar year basis and shall be filed with the state engineer no later than March 31 for the preceding year. If a governmental entity required to file an annual report fails to do so when due, the state engineer may assess and impose a penalty of five hundred dollars ($500) for each month or portion of a month that the report is not filed. The total penalty assessed annually pursuant to this subsection shall not exceed five thousand dollars ($5,000).
C. All records and reports required to be maintained and filed pursuant to this section shall be in a form prescribed by the state engineer.
History:
Laws 1999, ch. 285, § 10.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-12 - Penalties.

A. A person who or governmental entity that is determined to be in violation of the Ground Water Storage and Recovery Act or a permit issued or rules adopted pursuant to the act may be assessed a civil penalty in an amount not exceeding:
(1) one hundred dollars ($100) per day of violation not directly related to the illegal recovery or use of stored water; or
(2) ten thousand dollars ($10,000) per day of violation directly related to the illegal recovery or use of stored water.
B. An action to recover penalties pursuant to this section shall be brought by the state engineer in the district court in which the violation occurred.
History:
Laws 1999, ch. 285, § 12.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-13 - Conservation fee exemptions.

Conservation fees collected pursuant to Section 74-1-13 NMSA 1978 shall be charged only on water that is treated and stored underground and not on the same water subsequently recovered.
History:
Laws 1999, ch. 285, § 13.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-14 - Obligations to Indian nations, tribes or pueblos.

Nothing in the Ground Water Storage and Recovery Act shall be construed to affect the obligations of the United States to Indian nations, tribes or pueblos or to impair the rights of Indian nations, tribes or pueblos.
History:
Laws 1999, ch. 285, § 14.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.
2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5A - Ground Water Storage and Recovery › Section 72-5A-15 - Non-exemption from prior appropriation doctrine.

Unless required by interstate obligations, nothing in the Ground Water Storage and Recovery Act shall be construed to exempt stored water from the provision that priority in time shall give the better right pursuant to Chapter 72 NMSA 1978 or priority of appropriation shall give the better right pursuant to Article 16, Section 2 of the constitution of New Mexico.
History:
Laws 1999, ch. 285, § 15.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 285 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 18, 1999, 90 days after adjournment of the legislature.