2023 New Mexico Statutes › Chapter 72 - Water Law › Article 5 - Appropriation and Use of Surface Water › Section 72-5-1 - Application for permit; rules; surveys, etc.

Any person, association or corporation, public or private, the state of New Mexico or the United States of America, except as provided in Section 15 [72-5-33 NMSA 1978] of this act, hereafter intending to acquire the right to the beneficial use of any waters, shall, before commencing any construction for such purposes, make an application to the state engineer for a permit to appropriate, in the form required by the rules and regulations established by him. Such rules and regulations, shall, in addition to providing the form and manner of preparing and presenting the application, require the applicant to state the amount of water and period or periods of annual use, and all other data necessary for the proper description and limitation of the right applied for, together with such information, maps, field notes, plans and specifications as may be necessary to show the method of practicability of the construction and the ability of the applicant to complete the same. The state engineer may require additional information not provided for in the general rules and regulations, in any case involving the diversion of five hundred cubic feet of water per second, or more, or in the construction of a dam more than thirty feet high from the foundation. All such maps, field notes, plans and specifications, shall be made from actual surveys and measurements, and shall be duly filed in the office of the state engineer at the time of filing of formal application for permit to appropriate; provided, that upon the filing in the office of the state engineer of a notice of intention to make formal application for a permit to appropriate certain public waters the state engineer may allow a reasonable time, to be specified by him and noted upon his records, for making the surveys, measurements, maps, plans and specifications hereinbefore provided and required for a formal application, and if applicant shall file such formal application and map, plans and specifications and other necessary data within the time so specified, his priority of application shall date from the time of filing such notice of intention.
History:
Laws 1907, ch. 49, § 24; 1913, ch. 62, § 2; Code 1915, § 5678; C.S. 1929, § 151-129; Laws 1941, ch. 126, § 6; 1941 Comp., § 77-501; 1953 Comp., § 75-5-1.
ANNOTATIONS
Cross references.
— For prohibition against constructing works without permit,
see
72-8-4 NMSA 1978.
For applications for the transportation and use of public waters outside the state,
see
72-12B-1 NMSA 1978.
For the state engineer,
see
72-2-1 NMSA 1978.
Subject matter jurisdiction.
— The state engineer has subject matter jurisdiction to review an application irrespective of the applicant making specific reference to, or invocation of, any statutory section in the application, so long as the application seeks permission to do something within the statutory and regulatory authority of the state engineer. It is not the invocation of a statute that confers the right of the state engineer to review an application, but that the statute creates a procedure by which proposed actions are reviewed in specific ways and for specific purposes. Applicants have the burden to fulfill the statutory requirements for completing an adequate application and notice of intent to divert, but are not required to invoke a specific statute.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Where applicant applied for a permit to divert native Rio Grande water, to which applicant had no appropriative right, to enable applicant to carry its San Juan-Chama water into the applicant's water treatment plant for processing and distribution through applicant's drinking water project; the application stated that the native Rio Grande water would not be consumptively used, because the water would be returned to the river in full measure and did not seek any appropriative rights to the native Rio Grande water; the Middle Rio Grande Basin was fully appropriated, the state engineer had jurisdiction to determine whether the application fell within the state engineer's statutory authority.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Beneficial uses of water can be non-consumptive.
— A beneficial use of water does not require its consumption. Both consumptive and non-consumptive uses of water can be beneficial uses. A non-consumptive, beneficial use can be the basis for an appropriation of water as much as a consumptive use.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Non-consumptive use of water was a new beneficial use that required an appropriation.
— Where applicant applied for a permit to divert native Rio Grande water, to which applicant had no appropriative right, to enable applicant to carry its San Juan-Chama water into the applicant's water treatment plant for processing and distribution through applicant's drinking water project; the application did not request an appropriation of the native Rio Grande water or a request to divert the water for a beneficial use; applicant claimed that it would not apply the water to beneficial use and that the water would not be consumptively used because it would be returned to the river in full measure; and the Middle Rio Grande Basin was fully appropriated, applicant's diversion of native Rio Grande water was for a beneficial use, which required an appropriation of the water to enable applicant to put the water to the beneficial use.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Section 72-5-1 NMSA 1978 sets forth the state engineer's authority, it does not restrict that authority.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
A non-consumptive beneficial use of water in a fully appropriated basin.
— The state engineer has the authority to determine whether a new non-consumptive use would or would not have any impact on the available water in a fully appropriated basin and whether it could be allowed under Section 72-5-7 NMSA 1978. A non-consumptive beneficial use piggy-backed onto a fully appropriated basin can, under certain appropriate circumstances, be a legitimate appropriation.
Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth.
, 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Stream and underground water rights identical.
— Although appropriators' rights regarding streams and underground waters may be secured under different administrative procedures, substantive rights obtained are identical; likewise, jurisdiction and duties of state engineer relating to streams and underground waters are the same.
City of Albuquerque v. Reynolds
, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.
Exception to permit requirement.
— The provisions of Section 72-5-32 NMSA 1978 expressly enumerating the dams and resulting ponds which require permits exempt those dams not mentioned from the general permit requirement.
State ex rel. State Eng'r v. Lewis
, 1996-NMCA-019, 121 N.M. 323, 910 P.2d 957, cert. denied, 121 N.M. 242, 910 P.2d 318.
Permit requirements applicable to United States.
— Unless state requirements regarding distribution of water are inconsistent with applicable federal law, the United States is subject to those requirements such that it would have to apply for a permit under this section.
Jicarilla Apache Tribe v. U.S.
, 657 F.2d 1126 (10th Cir. 1981).
Tort liability.
— Defendant, who built a dam without obtaining the permit required hereunder, and negligently maintained same, was liable for damage caused by such negligence, despite fact that negligence of one of plaintiffs was also a proximate cause of the damage.
Little v. Price
, 1964-NMSC-178, 74 N.M. 626, 397 P.2d 15.
Reasonable charge dependent on costs.
— What is reasonable charge for water in any case must depend largely on cost of constructing and operating the irrigating works.
Young v. Hinderlider
, 1910-NMSC-061, 15 N.M. 666, 110 P. 1045.
Community acequias.
— This act (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, but under it, condemnation proceedings to enlarge old community acequia are authorized.
Pueblo of Isleta v. Tondre
, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
Effect of application.
— Mere application for permit to appropriate waters establishes no right to the use thereof.
Carlsbad Irrigation Dist. v. Ford
, 1942-NMSC-042, 46 N.M. 335, 128 P.2d 1047.
Water belongs to state.
— All water within the state, whether above or beneath the surface of the ground, belongs to the state, which authorizes its use; there is no ownership in the corpus of the water, but the use thereof may be acquired, and the basis of such acquisition is beneficial use.
State ex rel. Erickson v. McLean
, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.
State engineer has power to make rules and regulations
which may affect bureau of reclamation when it has reserved unappropriated waters, and state engineer may require it to file proofs of completion of works and meet any other reasonable requirements provided by rule and regulation. 1952 Op. Att'y Gen. No. 52-5559.
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.
Extension rejected.
— Extension of time for filing application for water is properly rejected if no proper showing has been made of ability to proceed with the work. 1914 Op. Att'y Gen. No. 14-1362.
Law reviews.
— For article, "Changing Interpretations of New Mexico's Constitutional Provisions Allocating Water Resources: Integrating Private Property and Public Values," see 26 N.M. L. Rev. 367 (1996).
For comment on
Mathers v. Texaco, Inc.,
77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).
For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).
For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).
For comment on geothermal energy and water law, see 19 Nat. Resources J. 445 (1979).
For note, "Access to Sunlight: New Mexico's Solar Rights Act," see 19 Nat. Resources J. 957 (1979); 10 N.M. L. Rev. 169 (1979-80).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "Legislation on Domestic and Industrial Uses of Water: A Comparative Review," see 24 Nat. Resources J. 143 (1984).
For article, "The Impact of Recent Court Decisions Concerning Water and Interstate Commerce on Water Resources of the State of New Mexico," see 24 Nat. Resources J. 689 (1984).
For article, "The Law of Prior Appropriation: Possible Lessons for Hawaii," see 25 Nat. Resources J. 911 (1985).
For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 246.
Constitutionality of statutes relating to surface waters, 85 A.L.R. 465.
93 C.J.S. Waters § 180.