New Mexico Administrative Code › Title 19 - NATURAL RESOURCES AND WILDLIFE › Chapter 26 - SURFACE WATER › Part 2 - ADMINISTRATION › Section 19.26.2.12 - APPLICATION PROCESSING

Current through Register Vol. 35, No. 13, July 16, 2024
This section describes the process in which applications
				  filed pursuant to
				  19.26.2.10
				  or
				  19.26.2.11
				  NMAC will be processed.
A. Return of
				application: The state engineer may return an application to the applicant,
				with a statement of corrections required, if the application is found to be
				faulty or incomplete. If the application is returned to the state engineer with
				the necessary information within sixty (60) days from the date the application
				is returned by the state engineer, the original filing date of the application
				shall be retained.
B. Rejection of
				application: When, after preliminary review of the information provided by the
				applicant, the state engineer is of the opinion that there is no unappropriated
				surface water available, or that the approval of the application would be
				contrary to the conservation of water within the state or detrimental to the
				public welfare of the state, or that the applicant has not complied with the
				applicable requirements of Section
				72-5-24.1
				NMSA, then the application shall be rejected. The state engineer shall decline
				to order the publication of notice of any such application.
C. Publication: After receipt of an
				acceptable application, the state engineer will issue a notice for publication
				to the applicant. The notice issued by the state engineer shall be published
				once a week for three (3) consecutive weeks in a newspaper of general
				circulation - as prescribed by the state engineer - for every county affected.
				The notice will also be placed on the state engineer web-site (
www.ose.state.nm.us
). Only notices issued by
				the state engineer pursuant to Section
				72-5-4 or
				Section
				72-12-3
				NMSA shall be valid. Prior to publication, the applicant shall ensure that the
				notice provides all essential facts pertaining to the application, including
				the location of the point(s) of diversion, the amount and timing of the
				diversion of water, the place of use, and the purpose for which the water is to
				be used. The applicant shall ensure the accuracy of publication of the notice
				in the newspaper. The responsibility for publication and all expenses
				associated with publication or republication shall be borne by the applicant.
				An affidavit of the publication shall be filed with the state engineer within
				sixty (60) days of the notice being issued to the applicant by the state
				engineer. Failure to file an affidavit of publication within the stated time
				shall result in the filing date of the application being postponed to the date
				the last affidavit is filed.
D.
				Amended notice and republication: If publication of the notice is defective,
				the state engineer may order republication. If an amendment is made to an
				application after publication of the original notice that changes the location
				of the point of diversion, requests a larger diversion amount or a larger
				consumptive use of water or changes the place or purpose of use of the water,
				the state engineer shall issue an amended notice and require the publication of
				the amended notice. Any republication cost or cost to publish an amended notice
				shall be paid by the applicant. An amended notice shall be published in
				accordance with the requirements of Subsection C of 19.26.2.12 NMAC.
E. Protest to application: Any person, firm,
				corporation or other entity objecting that the granting of the application will
				impair the objector's water rights shall have standing to file objections or
				protests. Any person, firm, corporation or other entity objecting that granting
				of the application will be contrary to the conservation of water within the
				state or detrimental to the public welfare of the state and showing that the
				objector will be substantially and specifically affected by the granting of the
				application shall have standing to file objections or protests. Pursuant to
				Section
				72-5-5.1
				NMSA, standing shall be afforded for those asserting legitimate concerns
				involving public welfare and conservation of water in a manner which avoids
				unduly burdening the administrative and judicial process. All objections and
				protests shall set forth the grounds for asserting standing. All objections or
				protests failing to meet the above criteria for standing will not be recognized
				as valid protests. The state of New Mexico or any of its branches, agencies,
				and political subdivisions shall have standing to file objections or protests.
				The state engineer will mail one copy of the objections or protests to the
				applicant.
(1) Filing deadline: All
				objections and protests must be filed with the state engineer not later than
				ten (10) calendar days after the date of the last publication of the notice. If
				the final day for filing a protest falls on a weekend or a state of New Mexico
				recognized holiday, protests received on the next business day shall be deemed
				timely. All objections or protests filed after the ten-day period will not be
				recognized as valid protests.
(2)
				Filing an objection or protest by facsimile: Objections or protests may be
				filed via facsimile no later than 5:00 p.m. (mountain time) of the tenth
				calendar day after the date of last publication of notice, provided the
				original objections or protests are mailed and postmarked within twenty-four
				(24) hours after transmission of the facsimile. If the original objections or
				protests are not mailed and postmarked within twenty-four (24) hours of
				transmission, the protest will be deemed untimely, and will not be recognized
				by the state engineer as a valid protest.
(3) Hearing before the state engineer: The
				state engineer encourages the parties to resolve the objection or protest. If
				the applicant and protestant cannot reach agreement by which the protest can be
				withdrawn, the matter shall proceed to hearing as described in 19.25.2 and
				19.25.4 NMAC, unless the state engineer determines that the application should
				be denied, in which case the state engineer may deny the application prior to
				holding a hearing.