2018 New Mexico Statutes
Chapter 72 - Water Law
Article 2 - State Engineer
Section 72-2-1 - Appointment; removal; qualifications; duties; office; private practice prohibited.

There shall be a "state engineer" who shall be a technically qualified and registered professional engineer under the Engineering and Land Surveying Practice Act [Chapter 61, Article 23 NMSA 1978] and shall be appointed by the governor and confirmed by the senate. He shall hold office for the term of two years or until his successor has been appointed and has qualified. He is subject to removal only for cause. He has general supervision of waters of the state and of the measurement, appropriation, distribution thereof and such other duties as required. The salary of the state engineer shall be set by the governor, and he shall receive necessary traveling expenses while away from his office in the discharge of official duties pursuant to the provisions of the Per Diem and Mileage Act [10-8-1 through 10-8-8 NMSA 1978]. The office of the state engineer shall be located at the seat of government. He shall not engage in any private practice.

History: Laws 1907, ch. 49, § 4; Code 1915, § 5657; Laws 1919, ch. 46, § 1; C.S. 1929, § 151-104; Laws 1937, ch. 178, § 1; 1947, ch. 142, § 1; 1941 Comp., § 77-201; 1953 Comp., § 75-2-1; Laws 1971, ch. 234, § 10; 1977, ch. 254, § 92; 1982, ch. 10, § 3.

Compiler's notes. — Laws 2005, ch. 114, § 1, effective June 17, 2005, provided that the $100,000 appropriated in Item (75) of Section 5 of Chapter 114 of Laws 2004 from the game protection fund to the state engineer for administration of Eagle Nest lake and reservoir shall not be expended for that purpose but shall revert to the game protection fund.

Cross references. — For right of state engineer to enter private property, see 72-8-1 NMSA 1978.

For investigation of water supply for state lands, see 19-5-4 NMSA 1978.

For reports from electrical irrigation districts, see 73-12-12 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.

Imposition of conditions for grant lawful. — Adoption by state engineer of the only known plan to avoid impairment of existing rights by requiring that surface rights be retired to the extent necessary to protect prior stream appropriators as a condition of the granting city's application to appropriate underground water from the Rio Grande basin, was within his lawful power and authority, and was not an attempt to exercise jurisdiction over Rio Grande stream water. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73.

Engineer's jurisdiction does not extend to seepage water from unknown sources. Vanderwork v. Hewes, 1910-NMSC-031, 15 N.M. 439, 110 P. 567.

Engineer's action presumed correct. — On appeal supreme court would presume state engineer's action in declaring Rio Grande valley from Colorado line to Elephant Butte Dam and underground water basin was correct. State v. Myers, 1958-NMSC-059, 64 N.M. 186, 326 P.2d 1075.

Courts not ousted of jurisdiction. — State statutes which confer upon state engineer general supervision over state waters and their appropriation and distribution do not oust courts of jurisdiction to protect individual rights in use of water; hence, court retained jurisdiction of suit by irrigation district for injunction against unlawful appropriation of water by riparian owners above district's works and reservoirs. Carlsbad Irrigation Dist. v. Ford, 1942-NMSC-042, 46 N.M. 335, 128 P.2d 1047.

Adjudication suit to determine all claims to water's use in given stream system. — The object of an adjudication suit is to determine all claims to the use of the water in a given stream system in order to facilitate the administration of unappropriated waters and to aid in the distribution of waters already appropriated. State ex rel. Reynolds v. Pecos Valley Artesian Conservancy Dist., 1983-NMSC-044, 99 N.M. 699, 663 P.2d 358.

Decree not erroneous. — Where decree enjoined riparian owners from appropriating waters above irrigation district's reservoirs and works but also provided that nothing should prevent such owners from applying to state engineer for water rights, it indicated sufficiently that upon a proper showing owners' application for modification of the decree would be heard by the court, and was not erroneous under contention that it prevented any use of flood waters. Carlsbad Irrigation Dist. v. Ford, 1942-NMSC-042, 46 N.M. 335, 128 P.2d 1047.

Recusal was not necessary. — 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 state engineer, prior to the state engineer's appointment as state engineer, acting as a district director in the office of the state engineer, attended an information meeting about the application; after the application was filed, the state engineer and the staff in the office of the state engineer assisted applicant in drafting a public notice of the application, but did not assist in the drafting of the application; the state engineer reviewed the findings and recommendations of the hearing officer in the state engineer's capacity as state engineer and authorized the issuance of a permit to applicant; and there was no evidence that the state engineer prejudged the merits of the application, recusal by the state engineer was not necessary. Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, cert. denied, 2014-NMCERT-002.

Declaration of underground waters as public. — Once state engineer determines that waters mentioned in Section 72-12-1 NMSA 1978 have reasonably ascertainable boundaries he may declare by rule that same are public waters subject to administrative jurisdiction of his office. 1949-50 Op. Att'y Gen. No. 49-5185.

Ordering distribution by mayordomo. — Under this section the state engineer has authority to order any mayordomo who is not fairly and equitably distributing purchased water to desist from doing so and, if necessary, to go into court to force him to do so in case the user cannot afford to take such legal action. 1953-54 Op. Att'y Gen. No. 53-5734.

Law reviews. — 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 article, "An Administrative Procedure Act for New Mexico," see 8 Nat. Resources J. 114 (1968).

For article, "Existing Legislation and Proposed Model Flood Plain Ordinance for New Mexico Municipalities," see 9 Nat. Resources J. 629 (1969).

For note, "Needed: A Ground-Water Treaty Between the United States and Mexico," see 15 Nat. Resources J. 385 (1975).

For note, "New Mexico's National Forests and the Implied Reservation Doctrine," see 16 Nat. Resources J. 975 (1976).

For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).

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).

For article, "Steve Reynolds - Portrait of a State Engineer as a Young Artist," see 38 Nat. Resources J. 537 (1998).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 63A Am. Jur. 2d Public Officers and Employees §§ 106 to 109.

81A C.J.S. States §§ 84 to 86, 98, 123.