2018 New Mexico Statutes
Chapter 72 - Water Law
Article 5 - Appropriation and Use of Surface Water
Section 72-5-4 - Notice; publication.
Upon the filing of an application that complies with the provisions of this article and the rules established thereunder, accompanied by the proper fees, the state engineer shall instruct the applicant to publish notice thereof, in a form and in a newspaper prescribed by the state engineer, in some newspaper that is published and distributed in each county affected by the diversion and in each county where the water will be or has been put to beneficial use, or if there is no such newspaper, then in some newspaper of general circulation in the stream system, once a week for three consecutive weeks. The notice shall give all essential facts as to the proposed appropriation; among them, the places of appropriation and of use, amount of water, the purpose for which it is to be used, name and address of applicant and the time when the application shall be taken up by the state engineer for consideration. Proof of publication as required shall be filed with the state engineer within sixty days of his instructions to make publication. In case of failure to file satisfactory proof of publication in accordance with the rules within the time required, the application shall be treated as an original application filed on the date of receipt of proofs of publication in proper form.
History: Laws 1907, ch. 49, § 26; Code 1915, § 5681; C.S. 1929, § 151-132; Laws 1941, ch. 126, § 8; 1941 Comp., § 77-504; 1953 Comp., § 75-5-4; 2001, ch. 26, § 1.
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 publication of legal notice, see Chapter 14, Article 11 NMSA 1978.
The 2001 amendment, effective June 15, 2001, inserted "and in a newspaper" preceding "prescribed by"; inserted the language beginning "that is published and distributed" and ending "then in some newspaper"; and made stylistic changes throughout the section.
Notice of publication is necessary only when water is available for appropriation. — Where the state engineer determined that no unappropriated water was available for the applicant; the state engineer summarily rejected the applicant's application for a permit to appropriate water; and the applicant nevertheless initiated a notice publication of applicant's application to appropriate water, the applicant's self-published notice was unnecessary, unauthorized and of no legal effect. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.
Notice of publication is necessary only when water is available for appropriation either by the state engineer or by the district court on appeal. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.
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.
Refusal to order publication. — Under Laws 1907, ch. 49, §§ 24 to 28 (Sections 72-5-1, 72-5-3, 72-5-4, 72-5-6, 72-5-7 NMSA 1978), territorial engineer would not be justified in refusing to order publication of notice of application for appropriation of water, merely because he had been informed unofficially that the water was owned by person other than applicant. 1909-12 Op. Att'y Gen. No. 212.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 322.
93 C.J.S. Waters § 180.
