An appropriator of water may, with the approval of the state engineer, use the same for other than the purpose for which it was appropriated or may change the place of diversion, storage or use in the manner and under the conditions prescribed in Sections 72-5-3 and 72-5-23 NMSA 1978.
History: Laws 1907, ch. 49, § 45; Code 1915, § 5704; C.S. 1929, § 151-157; Laws 1941, ch. 126, § 18; 1941 Comp., § 77-523; 1953 Comp., § 75-5-23; Laws 1985, ch. 201, § 6.
ANNOTATIONSCross references. — For changing point of diversion of community ditches, see 73-2-63 NMSA 1978.
For state engineer, see 72-2-1 NMSA 1978.
The 1985 amendment substituted "Sections 72-5-3 and 72-5-23 NMSA 1978" for "Sections 151-131 and 151-156 as amended herein provided that no such change shall be allowed to the detriment of the rights of others having valid and existing rights to the use of the waters of said stream system" at the end of the section.
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.
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 application stated that the native Rio Grande water would not be consumptively used, because the water would be returned to the river in full measure and did not seek any appropriative rights to the native Rio Grande water; the Middle Rio Grande Basin was fully appropriated, the state engineer had jurisdiction to determine whether the application fell within the State Engineer's statutory authority. Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Section 72-5-24 NMSA 1978 sets forth the state engineer's authority, it does not restrict that authority. Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Templeton doctrine source requirements do not apply to statutory transfers. Templeton supplementary wells service the original parcel, while statutory transfers may apply to new uses for the water over significant distances. A Templeton supplemental well need not, in all cases, be positioned upstream of a surface point of diversion. Herrington v. State of N.M. ex rel. Office of the State Eng'r, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.
Effect of statutes. — Statutes governing change in point of diversion or change in well location do not grant but rather restrict right of appropriator to change point of diversion or well location. Public Serv. Co. v. Reynolds, 1960-NMSC-137, 68 N.M. 54, 358 P.2d 621.
Section does not purport to modify terms of Section 72-5-3 NMSA 1978. Pueblo of Isleta v. Tondre, 1913-NMSC-067, 18 N.M. 388, 137 P. 86.
Federal reclamation projects exempt from requirements of this section by the terms of Section 72-9-4 NMSA 1978. City of Raton v. Vermejo Conservancy Dist., 1984-NMSC-037, 101 N.M. 95, 678 P.2d 1170.
Rights incident to ownership. — Water right is property right and inherent therein is right to change place of diversion, storage or use of water if rights or other water users will not be injured thereby. Clodfelter v. Reynolds, 1961-NMSC-003, 68 N.M. 61, 358 P.2d 626.
Water right severable and transferable. — This section and Section 72-5-23 NMSA 1978 expressly recognize that right to use water upon certain lands may be severed from such lands and become appurtenant to other lands, or may be transferred for other purposes and other uses. Mathers v. Texaco, Inc., 1966-NMSC-226, 77 N.M. 239, 421 P.2d 771.
Surface water reaching underground reservoir. — Section only authorizes change of place of diversion, storage or use; there is nothing in language hereof indicating intention of legislature to permit diversion under surface water right of water which has reached underground reservoir and lost identity as surface water. Kelley v. Carlsbad Irrigation Dist., 1966-NMSC-121, 76 N.M. 466, 415 P.2d 849.
The transfer of surface right to water which has lost its identity as surface water on reaching underground reservoir, would not be change in point of diversion, but would constitute new appropriation in underground reservoir. Kelley v. Carlsbad Irrigation Dist., 1966-NMSC-121, 76 N.M. 466, 415 P.2d 849.
Change of diversion and storage locations. — Since water statutes of Colorado and New Mexico have no extraterritorial effect, water company had right to change places of diversion and storage of water rights adjudicated to certain reservoirs from points in Colorado to points in New Mexico, provided such changes could be effected without injuriously affecting rights of other water users, and it was not necessary for it to obtain approval of such changes by New Mexico state engineer or Colorado court which entered decree of adjudication. Lindsey v. McClure, 136 F.2d 65 (10th Cir. 1943).
Middle Rio Grande Administrative Area. — Where the guidelines administering groundwater applications within the Middle Rio Grande Administrative Area require a transfer to sufficient surface water rights prior to granting a permit for new groundwater use, because of this requirement, the state engineer handles applications for a new use of groundwater within the MRGAA as an application to change the point of diversion and purpose of use of the existing water rights. Montgomery v. N.M. State Eng'r, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339, aff'd in part, Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.
Change in vehicle of transport of water. — Even if the lateral diversionary ditch did not exist when the state engineer issued the license to the downstream user's predecessor for use of water through the existing irrigation ditch, a change in the vehicle of transport of water for a particular use does not constitute a change in the use of water requiring state-approval within the meaning of this section, at least in the absence of a provision in a decree or license mandating a specific means of transport. Thus, use of the lateral ditch did not change the water use. Deaf Smith Cnty. Grain Processors, Inc. v. Dixon, 1993-NMCA-130, 116 N.M. 523, 864 P.2d 812.
Adjudication of water rights. — In determination of petition to change purpose and point of diversion of certain adjudicated water rights, state engineer was required to accept court's decree as to nature and extent of rights sought to be transferred. W.S. Ranch Co. v. Kaiser Steel Corp., 1968-NMSC-041, 79 N.M. 65, 439 P.2d 714.
Where water rights had been adjudicated by prior decree, purchaser of certain water rights who petitioned state engineer to change point of diversion was only entitled to amount of water that was available at former point of diversion. W.S. Ranch Co. v. Kaiser Steel Corp., 1968-NMSC-041, 79 N.M. 65, 439 P.2d 714.
No authority in state engineer to adjudicate. — In holding that total amount of water appropriated in any year under all public service company's claims of right should not exceed 5040 acre-feet, state engineer in effect adjudicated or attempted to adjudicate company's claimed water rights, and this the state engineer had no authority to do. Public Serv. Co. v. Reynolds, 1960-NMSC-137, 68 N.M. 54, 358 P.2d 621.
Injunction against enforcement of order. — Owner of water rights in interstate stream was entitled to injuction against enforcement of state engineer's order, made without notice and hearing, which forbade use of excess storage space of New Mexico reservoir, constructed primarily for storing unappropriated water to irrigate New Mexico land, for initial stor age of water attributable to Colorado reservoirs with prior water rights, and to use New Mexico ditch to carry water to Colorado reservoirs, where such use would not affect other water users adversely. Lindsey v. McClure, 136 F.2d 65 (10th Cir. 1943).
Law reviews. — For student article, "Herrington v. State: Straightening Out the Tangled Doctrines of Surface Water to Groundwater Transfers in New Mexico," see 48 Nat. Resources J. 697 (2008).
For article, "Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean," see 43 Nat. Resources J. 1151 (2003).
For comment on Mathers v. Texaco, Inc., 77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).
For note, "Common Law Remedies for Salt Pollution," see 15 Nat. Resources J. 353 (1975).
For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).
For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).
For article, "Prior Appropriation, Impairment, Replacements, Models and Markets," see 23 Nat. Resources J. 25 (1983).
For article, "Do Water Market Prices Appropriately Measure Water Values?", see 27 Nat. Resources J. 617 (1987).
For article, "Adapting to the Changing Demand for Water Use Through Continued Refinement of the Prior Appropriation Doctrine: An Alternative Approach to Wholesale Reallocation," see 29 Nat. Resources J. 435 (1989).
For note, "The Milagro Beanfield War Revisited in Ensenada Land & Water Ass'n v. Sleeper: Public Welfare Defies Transfer of Water Rights," see 29 Nat. Resources J. 861 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 289, 332.
Modern status of rules governing interference with drainage of surface waters, 93 A.L.R.3d 1193.
Liability for diversion of surface water by raising surface level of land, 88 A.L.R.4th 891.
93 C.J.S. Waters § 188.