2023 New Mexico Statutes › Chapter 72 - Water Law › Article 2 - State Engineer › Section 72-2-9.1 - Priority administration; expedited water marketing and leasing; state engineer.

A. The legislature recognizes that the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or otherwise available to the state engineer.
B. The state engineer shall adopt rules for priority administration to ensure that authority is exercised:
(1) so as not to interfere with a future or pending adjudication;
(2) so as to create no impairment of water rights, other than what is required to enforce priorities; and
(3) so as to create no increased depletions.
C. The state engineer shall adopt rules based on the appropriate hydrologic models to promote expedited marketing and leasing of water in those areas affected by priority administration. The rules shall be consistent with the rights, remedies and criteria established by law for proceedings for water use leasing and for changes in point of diversion, place of use and purpose of use of water rights. The rules shall not apply to acequias or community ditches or to water rights served by an acequia or community ditch.
D. Nothing in this section shall affect the partial final decree and settlement agreement as may be entered in the Carlsbad irrigation district project offer phase of
State of New Mexico ex rel. State Engineer v. Lewis, et al.
, Nos. 20294 and 22600 (N.M. 5th Jud. Dist.).
History:
Laws 2003, ch. 63, § 1.
ANNOTATIONS
Effective dates.
— Laws 2003, ch. 63 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 20, 2003, 90 days after adjournment of the legislature.
Priority administration regulations are constitutional.
— The state engineer's active water resources management regulations, 19.25.13.1-.50 (12/30/2004), which provide for the administration of water resources according to administrative interim priority determinations, do not violate constitutional separation of powers principles or due process and are not impermissibly vague.
Tri-State Gen. & Trans. Ass'n., Inc., v. D'Antonio
, 2012-NMSC-039, 289 P.3d 1232,
rev'g
, 2011-NMCA-015, 149 N.M. 394, 249 P.3d 932.
Delegation of new authority to the state engineer.
— Section 72-2-9.1 NMSA 1978 is a delegation of new regulatory authority to the state engineer to carry out priority administration responsibilities and is not limited by the state engineer's existing authority in Section 72-2-9 NMSA 1978.
Tri-State Gen. & Trans. Ass'n., Inc., v. D'Antonio
, 2012-NMSC-039, 289 P.3d 1232,
rev'g
, 2011-NMCA-015, 149 N.M. 394, 249 P.3d 932.
Priority administration regulations do not conflict with the judiciary in inter se adjudications.
— The state engineer's active water resources management regulations, 19.25.13.1-.50 (12/30/2004), which provide for the administration of water resources according to administrative interim priority determinations, do not conflict with the role of the judiciary in inter se adjudications of water priorities because nothing in the New Mexico Constitution establishes a right to an inter se adjudication of priority and the New Mexico water adjudication statutes do not preclude the administration of water rights prior to the filing of a final decree adjudicating priorities.
Tri-State Gen. & Trans. Ass'n., Inc., v. D'Antonio
, 2012-NMSC-039, 289 P.3d 1232,
rev'g
, 2011-NMCA-015, 149 N.M. 394, 249 P.3d 932.
Regulation of the use of a water right is not a deprivation of that right.
— A water right entitles its holder to only the use of water according to priority. A regulation of that use by the state does not amount to a deprivation of that right in violation of due process.
Tri-State Gen. & Trans. Ass'n., Inc., v. D'Antonio
, 2012-NMSC-039, 289 P.3d 1232.
Regulations provide adequate notice of the evidence the state engineer will consider.
— The state engineer's active water resources management regulations, 19.25.13.1-.50 (12/30/2004), which requires the state engineer to determine the elements of each user's administrable water right based on an express hierarchy of the types of publically available evidence the state engineer can consider, provides sufficient notice to water rights holders about the types of evidence the state engineer will consider when making water priority determinations and is not unconstitutionally vague.
Tri-State Gen. & Trans. Ass'n., Inc., v. D'Antonio
, 2012-NMSC-039, 289 P.3d 1232.
Powers of state engineer
. — Based upon the statutory language and the historical authority of the state engineer, the legislature did not intend Section 72-2-9.1 NMSA 1978 to provide the state engineer with the additional power of determining water right priorities as among water rights owners and to curtail water usage based upon such administrative determinations. The state engineer's general supervisory authority under Section 72-2-9 NMSA 1978 is specific as to the authority addressed by the legislature in Section 72-2-9.1 and restricts the state engineer's general supervisory authority to apportion the waters of the state to licenses and court adjudications.
Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio
, 2011-NMCA-015, 149 N.M. 394, 249 P.3d 932, cert. granted, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.