A. Except as provided in Subsection D of this section, any person, association or corporation, public or private, the state or the United States intending to construct a dam shall file applications for appropriations and use of water pursuant to Section 72-5-1, 72-5-22, 72-5-23 or 72-5-24 NMSA 1978.

B. Any person, association or corporation, public or private, the state or the United States intending to construct or operate a dam shall submit detailed plans to the state engineer for approval before construction or operation of the dam, except for a dam that:

(1) is less than twenty-five feet in height from the lowest natural ground surface elevation at the downstream toe of the dam to the crest of the dam and has a storage capacity of less than fifty acre-feet of water;

(2) is less than six feet in height from the lowest natural ground surface elevation at the downstream toe of the dam to the crest of the dam, regardless of storage capacity; or

(3) has a storage capacity of fifteen acre-feet or less of water, regardless of height.

C. If the state engineer finds that the dam design and operational plan are safe, the state engineer shall approve the plans.

D. Filing an application for the appropriation and use of water is not required for the construction or operation of a flood or erosion control dam; provided that a flood or erosion control dam shall not store water for more than ninety-six hours unless a longer duration time is authorized by the state engineer and water stored shall not be placed to any beneficial use unless specifically authorized by the state engineer.

E. The state engineer shall determine how the height, storage capacity and storage duration for all dams are calculated or measured and shall prescribe the form in which dam design plans and operational plans are submitted.

History: Laws 1941, ch. 126, § 25; 1941 Comp., § 77-530; 1953 Comp., § 75-5-30; Laws 1979, ch. 114, § 1; 1997, ch. 66, § 1; 2004, ch. 86, § 1; 2009, ch. 36, § 1.

Cross references. — For definition of "acre-foot," see 72-5-19 NMSA 1978.

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

The 2009 amendment, effective June 19, 2009, in Subsection A, added "Except as provided in Subsection D of this section"; in Subsection B, added "or operate", deleted the former provision which limited application of Subsection B to dams that exceed 10 feet in height or dams that impound more than 10 acre feet, and added "or operation of the dam, except for a dam that:"; added Paragraphs (1), (2), and (3) of Subsection B; in Subsection C, added "and operational plan are" and deleted the former provision which provided that this section does not apply to erosion control structures; and added Subsections D and E.

The 2004 amendment, effective May 19, 2004, amended this section to delete the "supervision of the United States army corps of engineers" and to add the last sentence as follows: "An erosion control structure shall not impound surface water in any amount for fishing, fish propagation, recreation or aesthetic purposes, which shall require a permit pursuant to Section 72-5-1 NMSA 1978."

The 1997 amendment, effective June 20, 1997, rewrote the section to such an extent that a detailed comparison would be impracticable.

Exception to permit requirement. — The provisions of this section expressly enumerating the dams and resulting ponds which require permits exempt those dams not mentioned from the general permit requirement. State ex rel. State Eng'r v. Lewis, 1996-NMCA-019, 121 N.M. 323, 910 P.2d 957, cert. denied, 121 N.M. 242, 910 P.2d 318.

Construction. — Section recognizes three exceptions to requirement that application must be made for use of public waters: (1) when dam is 10 feet or less in height from lowest natural ground surface elevation; (2) when dam is stock dam having storage capacity of 10 acre-feet or less even though dam itself exceeds 10 feet; and (3) when construction is solely to retain silt and impounds no water for beneficial use though dam exceeds 10 feet in height. 1947 Op. Att'y Gen. No. 47-4976.

Law reviews. — For article, "New Mexico Water Law: An Overview and Discussion of Current Issues," see 22 Nat. Resources J. 1045 (1982).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 393.

93 C.J.S. Waters § 147.