A. The state engineer shall not approve an application for a change, including an emergency change, in point of diversion or place or purpose of use of a water right into or out of an acequia or community ditch if the applicant has not complied with the applicable requirement adopted by an acequia or community ditch pursuant to Subsection E of Section 73-2-21 or Section 73-3-4.1 NMSA 1978.

B. The applicant for a change described in Subsection A of this section shall submit with the application to the state engineer documentary evidence provided by the commissioners of the acequia or community ditch of the applicant's compliance with any applicable requirement for the change adopted by the acequia or community ditch pursuant to Subsection E of Section 73-2-21 or Section 73-3-4.1 NMSA 1978.

C. If an acequia or community ditch has not adopted an applicable requirement, the applicant shall submit to the state engineer along with the application an affidavit provided by the commissioners of the acequia or community ditch stating this fact.

D. If an acequia fails to make a decision within one hundred twenty days in response to an applicant's request for approval pursuant to a [an] applicable requirement, the acequia or community ditch shall be deemed to have approved the applicant's request for approval and the state engineer shall proceed on the application as if the applicant had complied with any applicable acequia or community ditch requirement. The applicant's request shall be in writing and delivered by certified mail to the commissioners of the acequia or community ditch.

E. The provisions of this section do not apply to water rights or lands owned by or reserved for an Indian pueblo.

History: Laws 2003, ch. 82, § 1 and Laws 2003, ch. 135, § 1.

Duplicate laws. — Laws 2003, ch. 82, § 1 and Laws 2003, ch. 135, § 1 enacted identical new sections, both effective March 1, 2004.

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Notice of application to transfer water rights out of an acequia. — A community acequia is not entitled to actual notice of an application to transfer water rights out of the acequia. Notice by publication is adequate notice. Storm Ditch v. D'Antonio, 2011-NMCA-104, 150 N.M. 590, 263 P.3d 932, cert. denied, 2011-NMCERT-009, 269 P.3d 903.

Where applicants filed an application to transfer water rights out of a community acequia; the community acequia did not have any bylaws or regulations requiring approval for any changes or transfers in water rights; the applicants did not submit the affidavit required by Subsection C of Section 72-5-24.1 NMSA 1978 with the application; the applicants published a notice of the application as required by Section 72-5-4 NMSA 1978; and more than two years after the publication of notice of the application, when the applicants asked the community acequia to provide the required affidavit, the community acequia filed a protest of the application, the notice by publication was sufficient and proper notice to the community acequia and the community acequia's protest was filed too late. Storm Ditch v. D'Antonio, 2011-NMCA-104, 150 N.M. 590, 263 P.3d 932, cert. denied, 2011-NMCERT-009, 269 P.3d 903.