A. Any stockmen or stock owners desiring to impound any of the surface waters of the state for watering of livestock shall apply to the state engineer on a form prescribed by the state engineer. If the capacity of the proposed impoundment is ten acre-feet or less, the applicant shall meet the requirements of this section. If the capacity of the proposed impoundment exceeds ten acre-feet, the applicant shall meet the requirements of filing applications for the appropriation and use of water pursuant to Section 72-5-1, 72-5-22, 72-5-23 or 72-5-24 NMSA 1978.

B. Upon the filing of an application pursuant to this section, if the state engineer finds that the capacity of the proposed impoundment is ten acre-feet or less, will not be on a perennial stream and will be used for watering of livestock as defined in Subsection D of this section, the state engineer shall issue a permit to the applicant to impound and use the waters applied for; provided that as part of an application for an impoundment on state or federal land, the applicant submits proof that the applicant is legally entitled to place livestock on the state or federal land where the water is to be impounded and has been granted access to the site and has permission to occupy the portion of the state or federal land as is necessary for the impoundment.

C. This section shall only apply to impoundments constructed for the watering of livestock after the effective date of this 2004 act.

D. As used in this section, "livestock" means "livestock" as defined in Section 77-2-1.1 NMSA 1978 and this section applies only to the impoundment of surface water for the purpose of watering livestock. Watering of livestock does not include an impoundment of surface or ground 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. In determining whether an impoundment will be used for the watering of livestock, the state engineer may consider the maximum amount of water required per livestock unit and shall take into account regional and climatic conditions that affect consumption.

History: Laws 1907, ch. 49, § 74, enacted by Laws 1909, ch. 54, § 1; Code 1915, § 5730; C.S. 1929, § 151-179; Laws 1941, ch. 126, § 24; 1941 Comp., § 77-803; 1953 Comp., § 75-8-3; 2004, ch. 86, § 2.

Compiler's notes. — The 1915 Code compilers substituted the term "this article" for "this act." "This act" would refer to Laws 1907, ch. 49, the provisions of which are presently compiled as 19-7-26, 72-1-1, 72-1-2, 72-1-5, 72-2-1 to 72-2-7, 72-2-9, 72-2-10, 72-3-1 to 72-3-5, 72-4-1, 72-4-13, 72-4-15, 72-4-17 to 72-4-19, 72-5-1, 72-5-3, 72-5-4, 72-5-6 to 72-5-24, 72-5-26 to 72-5-28, 72-5-33, 72-7-1 to 72-7-3, 72-8-1 to 72-8-6, 72-9-1 to 72-9-3 NMSA 1978. "This article" would refer to the same sections and, in addition, to 72-5-2, 72-5-29 to 72-5-31 NMSA 1978.

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

The 2004 amendments, effective May 19, 2004, added Subsections A through D. Prior to the 2004 amendments, this section read: "This article shall not be construed to apply to stockmen or stock owners who may build or construct water tanks or ponds for the purpose of watering stock, which have a capacity of ten acre-feet of water or less".

Use of water for watering stock is "beneficial use". First State Bank v. McNew, 1928-NMSC-040, 33 N.M. 414, 269 P. 56, abrogated, Walker v. United States, 2007-NMSC-038, 142 N.M. 45, 162 P.3d 882.

Wrongful removal of water from stock tanks. — Trial court's submission to jury of question of damages based upon market value of water taken and damage to appellee's stock-raising activities, in action for wrongful removal of water from stock tanks, was not error. Frank Bond & Son v. Reserve Minerals Corp., 1959-NMSC-016, 65 N.M. 257, 335 P.2d 858.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 93 C.J.S. Waters §§ 60, 61.