1. A. Upon the filing of an application by a lessee, the state engineer shall proceed in accordance with the provisions of Section 1 [72-2-20 NMSA 1978] of this 2019 act regarding notice of the application.
2. B. Any owner who believes the owner's water rights will be adversely affected by the granting of the application may file a protest. The protest shall be specific as to how the granting of the application will adversely affect the owner's water rights. The protest shall be filed in writing with the state engineer and a copy sent to the applicant by certified mail.
3. C. If a protest is timely filed, the state engineer shall hold a hearing on the granting of the application, and the applicant and protestants shall be notified by the state engineer as to the date and place of the hearing.
4. D. If no objections are filed, the state engineer may grant the application without hearing. If no objections are filed and the state engineer denies the application, the state engineer shall hold a hearing if requested to do so by the applicant. The request shall be filed with the state engineer within ten days after the denial of the application.
5. E. If the state engineer grants the application but allows the applicant to use less water than the amount of water the owner would be allowed to use, the state engineer shall hold a hearing on the matter if requested to do so by the applicant. The request shall be filed with the state engineer within ten days after the granting of the application.
6. F. In a hearing before the state engineer, a full record and transcript of the proceeding shall be kept by the state engineer.
7. G. The provisions of this section do not apply to leases approved pursuant to Section 73-10-48 NMSA 1978.

History: 1953 Comp., § 75-40-6, enacted by Laws 1967, ch. 100, § 6; 2003, ch. 369, § 4; 2019, ch. 88, § 5.

ANNOTATIONS

Cross references. — For publication of legal notice, see Chapter 14, Article 11 NMSA 1978.

For the state engineer, see 72-2-1 NMSA 1978.

The 2019 amendment, effective July 1, 2019, removed certain notice provisions and directed the state engineer to proceed under the new notice provisions of Section 72-2-20 NMSA 1978; in Subsection A, deleted "cause a notice of the filing to be published once a week for three consecutive weeks in a newspaper of general circulation in the county in which the water is situated" and added "proceed in accordance with the provisions of Section 1 of this 2019 act regarding notice of the application"; in Subsection B, deleted "within ten days after the last publication of notice of application"; and in Subsection C, after "If a protest is", added "timely".

The 2003 amendment, effective July 1, 2003, inserted the subsection designations and added Subsection G.

State engineer is without statutory or regulatory authority to issue preliminary approvals of proposed leases of water rights. — The legislature has provided standards that the state engineer must follow when considering the approval of proposed leases of water rights and has provided a step by step process of the administrative procedures that a lease application is subject to, including the incorporation of procedural requirements to add public notice and specific timelines to the state engineer’s review of these applications, and therefore where the state engineer has approved temporary changes in water use leases on a "preliminary" basis prior to or without a hearing, this practice is without statutory authority. Moreover, state engineer regulations explicitly prohibit changes to point of diversion, place of use, or purpose of use prior to use by a lessee without the opportunity for objections to be considered in a hearing first. The law does not allow for the state engineer to circumvent procedures and protections clearly defined in statute, even if temporary in nature. 2023 Op. Att'y Gen. No. 23-01.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 261 et seq.

93 C.J.S. Waters § 180.