New Mexico Statutes
Article 5 - Appropriation and Use of Surface Water
Section 72-5-33 - Federal reclamation projects; appropriation for.

A. Whenever the proper officers of the United States, authorized by the Federal Reclamation Law of June 17, 1902, 32 Statutes at Large 388, or acts amendatory thereof or supplementary thereto, to construct federal reclamation project works for the utilization of waters within the state, notify the state engineer that the United States intends to utilize certain specified waters, the waters so described and unappropriated, and not covered by applications or affidavits duly filed or permits as required by law, at the date of such notice shall not be subject to a further appropriation under the laws of the state for a period of three years from the date of the notice, within which time the proper officers of the United States shall file plans for the proposed works in the office of the state engineer for his information, and no adverse claim to the use of water required in connection with such plans, initiated subsequent to the date of such notice, shall be recognized under the laws of the state, except as to such amount of water described in such notice as may be formally released in writing by the secretary of the interior as the officer of the United States duly authorized; provided that:
(1) in case of failure to file plans of the proposed works within three years as required in this section, the waters specified in the notice given by the United States to the state engineer shall become public waters subject to general appropriations; and
(2) even if plans are filed within three years as required by this section, in the event the United States congress, the secretary of the interior or a court of competent jurisdiction, in a nonappealable final judgment, determines that the planned federal reclamation project will not be constructed, the water withheld under the provisions of this section for the federal reclamation project shall be released by operation of state law and shall become public water subject to general appropriations and the provisions of this section.
B. If it is determined pursuant to the provisions of this section that a planned federal reclamation project will not be constructed:
(1) upon receipt of an application, the state engineer shall give first preference for any appropriation of released water to water users who have contracted to receive such waters under a repayment contract with the United States or its agencies, provided the water users under the repayment contract apply to appropriate the water within one year of being released;
(2) the appropriation by the water users shall be presumed to be consistent with the public welfare of the state and the conservation of water within the state; and
(3) the appropriation of water under this section by water users under a repayment contract shall bear the priority date of the original notice to appropriate such water.
C. The provisions of this section apply to all pending notices, permits issued pursuant to such notices, prospective notices and permits issued pursuant to prospective notices filed under this section.
D. Nothing in this section shall affect the water rights of any senior appropriators in New Mexico or any Indian tribe.
History: Laws 1907, ch. 49, § 40; Code 1915, § 5699; C.S. 1929, § 151-152; Laws 1941, ch. 126, § 15; 1941 Comp., § 77-531; 1953 Comp., § 75-5-31; Laws 1995, ch. 188, § 1.
Cross references. — For the federal reclamation laws, see 43 U.S.C. § 371, et seq.
For the state engineer, see 72-2-1 NMSA 1978.
The 1995 amendment, effective April 6, 1995, designated the existing language as Subsection A, in Subsection A, substituted "32" for "38", divided the subsection to form Paragraph (1), added Paragraph (2), and added Subsections B through D, and made minor stylistic changes in Subsection A.
Applicability. — Statute concerning use of water for federal reclamation projects had no bearing upon legality of applications filed under Sections 72-12-7 and 72-12-24 NMSA 1978 by nonprofit corporation on behalf of members owning valid water rights in underground basin, for partial change of point of diversion and to supplement existing water rights. Coldwater Cattle Co. v. Portales Valley Project, Inc., 1967-NMSC-089, 78 N.M. 41, 428 P.2d 15.
United States subject to permit requirements. — Unless state requirements regarding distribution of water are inconsistent with applicable federal law, the United States is subject to those requirements such that it would have to apply for a permit under Section 72-5-1 NMSA 1978. Jicarilla Apache Tribe v. United States, 657 F.2d 1126 (10th Cir. 1981).
Passing on applications. — With respect to protest to applications to appropriate water, required by regulations of state engineer, no distinction should be made between government reclamation service and other persons in the practice as to passing upon such applications. 1915 Op. Att'y Gen. No. 15-1506.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 93 C.J.S. Waters § 169.