Upon the receipt of the proofs of publication, accompanied by any statutory fees required at this time, the state engineer shall determine, from the evidence presented by the parties interested, from such surveys of the water supply as may be available and from the records, whether there is unappropriated water available for the benefit of the applicant. If so, and if the proposed appropriation is not contrary to the conservation of water within the state and is not detrimental to the public welfare of the state, the state engineer shall endorse his approval on the application, which shall become a permit to appropriate water, and shall state in such approval the time within which the construction shall be completed and the time within which water shall be applied to a beneficial use; provided that the state engineer may, in his discretion, approve any application for a less amount of water or may vary the periods of annual use, and the permit to appropriate water shall be regarded as limited accordingly. The time allowed by the state engineer for completion of works or application of water to beneficial use shall be governed by the size and complexity of the project, but in no case shall exceed five years from the date of approval within which to complete construction, and four years in addition thereto within which to apply water to a beneficial use; provided that the state engineer shall have the power to grant extensions of time for completion of works or application of water to beneficial use as provided in Section 72-5-14 NMSA 1978.

History: Laws 1907, ch. 49, § 27; Code 1915, § 5682; C.S. 1929, § 151-133; Laws 1941, ch. 126, § 9; 1941 Comp., § 77-505; 1953 Comp., § 75-5-5; Laws 1985, ch. 201, § 3.

Cross references. — For state engineer, see 72-2-1 NMSA 1978.

The 1985 amendment substituted "and if the proposed appropriation is not contrary to the conservation of water within the state and is not detrimental to the public welfare of the state, the state engineer" for "he" and deleted "thereupon" preceding "become a permit" near the beginning of the second sentence and substituted "Section 72-5-14 NMSA 1978" for "Section 13 of this act" at the end of the section.

Power of state engineer in this section is discretionary. Herrington v. State ex rel. Office of State Eng'r, 2004-NMCA-062, 135 N.M. 585, 92 P.3d 31, rev'd on other grounds, Herrington v. State ex rel. Office of the State Eng'r, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.

New appropriation of surface water. — New appropriation of surface water requires finding of unappropriated water. Montgomery v. N.M. State Eng'r, 2005-NMCA-071, 137 N.M. 659, 114 P.3d 339, aff'd in part sub nom. Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971.

Conditions to prevent impairment. — The state engineer may impose conditions on an application to prevent impairment. Herrington v. State ex rel. Office of State Eng'r, 2004-NMCA-062, 135 N.M. 585, 92 P.3d 31, rev'd on other grounds, Herrington v. State ex rel. Office of the State Eng'r, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.

No conditions to make well permissible. — The state engineer is not required to impose conditions to make a well permissible. Herrington v. Office of State Eng'r, 2004-NMCA-062, 135 N.M. 585, 92 P.3d 31, rev'd on other grounds, Herrington v. State ex rel. Office of the State Eng'r, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258.

Reasonable time for development of water use relates back to the date of showing an intent to appropriate by acquiring a permit. Jicarilla Apache Tribe v. U.S., 657 F.2d 1126 (10th Cir. 1981).

Injunction not appropriate. — Relator seeking to have records of his water rights restored after attempted cancellation cannot secure mandatory injunction, when rights are not described or properly designated; nor can he enjoin state engineer from dispensing information questioning such rights or title. Turley v. State Eng'r, 1935-NMSC-075, 39 N.M. 472, 49 P.2d 1135.

State engineer is authorized to hold hearing for purpose of determining whether there is unappropriated water available for benefit of applicant, and if permit should be issued. 1933 Op. Att'y Gen. No. 33-588.

State engineer may afford legal protection for instream flows for recreational, etc., purposes. — Neither the New Mexico constitution nor statutes governing appropriation and use of surface water prohibit the state engineer from affording legal protection for instream flows for recreational, fish or wildlife, or ecological purposes, by conditioning approval of a transfer of an existing water right to an instream use on installation of gauging devices. 1998 Op. Att'y Gen. No. 98-01.

Law reviews. — For essay, "Water, Theology, and the New Mexico Water Code," see 48 Nat. Resources J. 227 (2008).

For comment on Mathers v. Texaco, Inc., 77 N.M. 239, 421 P.2d 771 (1966), see 7 Nat. Resources J. 433 (1967).

For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).

For comment on State ex rel. Reynolds v. Miranda, 83 N.M. 443, 493 P.2d 409 (1972), see 13 Nat. Resources J. 170 (1973).

For note, "Appropriation By the State of Minimum Flows in New Mexico Streams," see 15 Nat. Resources J. 809 (1975).

For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).

For article, "The Administration of the Middle Rio Grande Basin: 1956-2002," see 42 Nat. Resources J. 939 (2002).

Am. Jur. 2d, A.L.R. and C.J.S. references. — Power of state to exact fee or require license for taking water from stream, 19 A.L.R. 649, 29 A.L.R. 1478.

93 C.J.S. Waters § 180.