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Show 520 NEW MEXICO 3.3 Changes, Sales, and Transfers a. PROCEDURE FOR CHANGES The owner of a water right in New Mexico may change the pur- pose for which the water was originally appropriated or may change the point of diversion, storage, or use of such right without losing the priority of his right. However, in order to accomplish a change, the appropriator must file a change application with the State en- gineer and notice of the proposed change is given by publication.84 If an emergency exists, a change may be approved without following the provisions of the statute relating to publication of notice. An emergency is defined by statute to include a threatened crop loss or economic loss to the appropriator. However, the engineer must deter- mine that no foreseeable detriment exists to other valid existing rights. The applicant must then comply with the regular statutory provisions governing changes and the emergency approval only continues in effect until the State engineer enters liis decision under the regular statutory procedure.85 b. CRITERIA FOR APPROVAL OF CHANGES In order to approve a change application, the State engineer must find that such a change can be made without detriment to other valid existing rights on the stream.86 The quantity of water specified in a prior court decree was accepted in one case as proof of the amount of beneficial use by a junior appropriator, even though there was no affirmative showing that this was the actual quantity which had been beneficially used by him.87 Community ditches which were in operation prior to the passage of the 1907 act are not subject to the jurisdiction of the State engi- neer with respect to change applications.88 One recent New Mexico decision casts doubt on the right to change surface rights to ground water rights. The plan was to allow water in the applicant's surface reservoir to percolate into the ground water basin and to take the water from the ground, but the New Mexico Supreme Court ruled that once the surface water percolated into the ground it lost its identity and became public water.89 In prior decisions, the New Mexico court had approved changes in point of diversion from surface water sources to underground water sources.90 There are special statutory provisions relating to changes of point of diversion, place, or nature of use by the State Highway Commission for highway purposes.91 C. EXCHANGES OF WATER A New Mexico statute provides that water may be delivered into any ditch, stream, or watercourse to supply appropriators there- 84 New Mexico Stat.. sees. 75-5-22, 75-5-23. as New Mexico Stat., sec. 75-5-23.1. 88 New Mexico Stat., sec. 75-5-23. »W.S. Ranch Co. v. Kaiser Steel Corp., 79 N. Mex. 65, 439 P. 2d 714 (1968). S8New Mexico Stat.. sec. 75-14-fiO. ®>Kelley v. Carlsbad Irripation Dist., 7fi N. Mex. 466, 415 P. 2d 849 (1966). 90 Templeton v. Pecos Valien Artesian Conserv. DM., 65 N. Mex. 59, 332 P. 2d 465 (1958) : Clodletter v. Reynolds, 68 N. Mex. 61. 358 P. 2d 626 (1961). 81 New Mexico Stat., sees. 75-5-32 to 75-5-36. |
