This section describes the process in which applications filed pursuant to 19.26.2.10 or 19.26.2.11 NMAC will be processed.

1. 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.
2. 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.
3. 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.
4. 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.

5. 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.

6. F. Action of the state engineer - protested application:

   (1) Denial of application: The state engineer may deny a protested application, prior to or after holding a hearing, if the state engineer determined one or more of the following:

   (a) No water right exists.

   (b) Granting the application would be detrimental to or impair existing water rights.

   (c) Granting the application would be contrary to the conservation of water within the state.

   (d) Granting the application would be detrimental to the public welfare of the state.

   (e) For a new appropriation, available information indicates that there is no unappropriated surface water.

   (2) Permits - conditions of approval: The state engineer may approve a protested application after holding a hearing and may impose reasonable conditions of approval.

7. G. Withdrawal of application: An applicant may request in writing that an application be withdrawn. A withdrawn application is not subject to reinstatement, although the applicant may refile the application or a similar application at a later date. A copy of the withdrawn application remains part of the public record. A protested application may not be withdrawn and refiled for the purpose of removing a standing protest. When a protested application is withdrawn and the same or similar application is filed within one calendar year of the withdrawal date, the state engineer will attempt to notify the previous protestant(s) of the refiled application. The withdrawal of an application that is currently in the hearing process before the state engineer may only be withdrawn pursuant to 19.25.2 NMAC.

8. H. Action of the state engineer - unprotested application: After receipt of an affidavit of publication for an application to which no timely protest was received or remains, the state engineer will act on the application.

   (1) Denial of application: The state engineer shall deny an application if the state engineer makes any of the five determinations listed in Paragraph 1 of Subsection F of 19.26.2.12 NMAC.

   (2) Permits - conditions of approval: The state engineer may approve an application and may impose reasonable conditions of approval including measurement at the point of diversion. The state engineer retains jurisdiction of all permits.

9. I. Request to set aside decision for reconsideration or hearing: Upon receipt of notice from the state engineer of the decision on an application, if the permittee is aggrieved by any of the conditions of approval, the permittee may within thirty (30) calendar days of such receipt request in writing that the decision be set aside for the purpose of reconsideration or hearing. The state engineer may issue an order setting aside all or part of his decision for the purpose of reconsideration or hearing. That part of the permit which is set aside shall revert to application status and may not be exercised.

   (1) State engineer order to set aside decision for the purpose of reconsideration: At the request of the permittee, the state engineer may issue an order setting aside all or part of his decision for the purpose of reconsideration. If additional information is to be submitted for reconsideration, the order shall specify the time allowed for submission. Failure to submit information within the specified time shall result in reinstatement of the original decision. Upon receipt of notice from the state engineer of the decision on a reconsideration of an application, if the permittee is aggrieved by the decision, the permittee may within thirty (30) calendar days of such receipt request in writing that the decision be set aside for the purpose of hearing in accordance with 19.25.2 and 19.25.4 NMAC.

   (2) State engineer order to set aside decision for the purpose of hearing: At the request of the permittee, the state engineer shall issue an order setting aside all or part of his decision for the purpose of hearing. After the state engineer issues an order setting aside all or part of his decision for the purpose of hearing in accordance with 19.25.2 and 19.25.4 NMAC.

[19.26.2.12 NMAC - N, 1/31/2005]