If, in the opinion of the state engineer, there is no unappropriated water available, he shall reject such application. He shall decline to order the publication of notice of any application which does not comply with the requirements of the law and rules and regulations. He may also refuse to consider or approve any application or notice of intention to make application or to order the publication of notice of any application if, in his opinion, approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state.

History: Laws 1907, ch. 49, § 28; Code 1915, § 5683; C.S. 1929, § 151-134; Laws 1941, ch. 126, § 10; 1941 Comp., § 77-506; 1953 Comp., § 75-5-6; Laws 1985, ch. 201, § 4.

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

The 1985 amendment added "Application" and substituted "conservation and public welfare" for "public interest" in the section heading, deleted "the" preceding, and "thereunder" following, "rules and regulations" near the end of the second sentence, and substituted "approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state" for "approval thereof would be contrary to public interest" at the end of the section.

State engineer's jurisdiction when water is unavailable for appropriation. — The state engineer is required to dispose of applications for permits to appropriate water without a hearing when the state engineer determines that water is unavailable for appropriation. If an aggrieved applicant requests a post-decision hearing before the state engineer to perfect an appeal to the district court, the state engineer is barred from reaching any of the secondary issues that must be considered before a permit to appropriate water can be granted, such as whether the proposed appropriation is contrary to the conservation of water or would be detrimental to the public welfare or to an objector's water right. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.

Contrary to public interest. — To be contrary to public interest, project need not be menace to public health or safety; project requiring water in excess of amount unappropriated in stream is contrary to public interest. Young v. Hinderlider, 1910-NMSC-061, 15 N.M. 666, 110 P. 1045.

Point of diversion change. — Transfer of water rights from one county to another and change of purpose does not constitute a new appropriation of surface water. 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.

Waters already appropriated. — This section applied only to applications to appropriate previously unappropriated surface water, and not to transfers of rights to waters already appropriated. Ensenada Land & Water Ass'n v. Sleeper, 1988-NMCA-030, 107 N.M. 494, 760 P.2d 787, cert. quashed, 107 N.M. 413, 759 P.2d 200.

Cost. — Mere fact that irrigation under one proposed project would cost more per acre than under subsequently proposed project was not conclusive that former project should be rejected. Young v. Hinderlider, 1910-NMSC-061, 15 N.M. 666, 110 P. 1045.

Law reviews. — For student article, "Defining the Public Interest: Administrative Narrowing and Broadening of the Public Interest in Response to the Statutory Silence of Water Codes," see 50 Nat. Resources J. 255 (2010).

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

For comment, "Water Rights - Failure to Use - Forfeiture," see 6 Nat. Resources J. 127 (1966).

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, "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 comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).

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).

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. — 78 Am. Jur. 2d Waters § 324.

93 C.J.S. Waters § 180.