Ten Common Questions About New Mexico Water Rights - With Answers

March 20, 2001

Summary
1. WHO OWNS THE WATER LOCATED ON OR UNDER MY PROPERTY? The New Mexico Constitution and Water Code provide that all water belongs to the public. Public ownership is the legal basis for government regulation and the fundamental maxim that beneficial use is the measure, the right, and the limit to use the public's water.

1. WHO OWNS THE WATER LOCATED ON OR UNDER MY PROPERTY?

The New Mexico Constitution and Water Code provide that all water belongs to the public. Public ownership is the legal basis for government regulation and the fundamental maxim that beneficial use is the measure, the right, and the limit to use the public's water.

2. WHAT IS (OR DO I HAVE) A WATER RIGHT?

A water right is the right to use the public's water. For purposes of real estate conveyances, a water right is an interest in real property that may be -but is not always- appurtenant to real property. An artificial diversion - a well, headgate, or impoundment - from the stream or reservoir is required.

Water rights are either inchoate - not yet applied to beneficial use - or vested - perfected by actual beneficial use. Water rights allow use of ground or surface water. Unlike other states, ground and surface water are conjunctively managed in New Mexico. Springs are considered surface water. Pre-jurisdiction (declared, Mendenhall, or pre-1907) water rights are rights initiated prior to the exercise of jurisdiction by the State Engineer. Permitted water rights are granted by the State Engineer. Adjudicated water rights result from water rights adjudications, quiet title, and abandonment actions.

3. ARE WATER RIGHTS CONVEYED WITH REAL ESTATE?

If appurtenant to real property, water rights are automatically conveyed when the property is conveyed unless specifically reserved. However, only agricultural water rights and "water rights necessary for the enjoyment of the property" are appurtenant. Water rights may be separately conveyed by warranty, special warranty, or quitclaim deed. In addition, a Change of Ownership of Water Right shall be filed with the State Engineer then recorded in the county where the water rights are located.

4. HOW MUCH ARE MY WATER RIGHTS WORTH?

It depends. The value of any water right is a function of several factors including the water right's current validity, the approved or established purpose(s) of use, water quantity, water quality, location and market demand. Priority date is greatly overrated as a factor.

5. WHEN IS PUBLIC NOTICE REQUIRED?

Public notice and an opportunity for protest is not required for any change of ownership of a water right. Public notice and an opportunity for protest is required for any "transfer" of water rights, i.e., any change in the point of diversion, place of use, or purpose of use of a water right. Public notice and State Engineer approval technically is required for a lease of water rights but the Water Use Leasing Act is rarely used or enforced.

6. HAVE MY WATER RIGHTS BEEN LOST THROUGH NON-USE?

Water rights may be forfeited by the State Engineer or by a court if there is a four year continuous period of non use and no valid excuse. However, the State Engineer must - but does not- provide a notice of non-user for any non-use occurring after 1965. Water rights may be abandoned only by a court upon a showing of 1) intent to abandon, and 2) an unreasonable period of non-use. Declared water rights may be lost or limited for failure to use reasonable diligence under the circumstances. Pre-jurisdiction water rights may be "proved up" by development of historical evidence including affidavits, aerial photography, and various government reports and surveys. Water rights that have not been used for several years can be re-initiated if not forfeited or abandoned.

7. DO I NEED TO FILE A PROOF OF APPLICATION OF WATER TO BENEFICIAL USE OR SHOULD I GET AN EXTENSION OF TIME?

Three to five years after a permit to appropriate or transfer a water right is issued, a "Proof" or "PBU" must be filed by a registered surveyor or engineer. A PBU establishes the amount and location of a water right. Generally, the highest twelve month period of use quantifies the right. A PBU should not be filed until as much water as possible has been applied to beneficial use. An extension of time request should be filed until that time. Extensions may be granted retroactively for a period of one to three years.

8. CAN I MOVE MY WATER RIGHTS?

Water rights generally may be severed from real estate and moved. There is a statutory right to change the point of diversion, place and/or purpose of use provided the transfer does not impair existing water rights and is not contrary to the conservation of water or the public welfare of the state. Public notice and an opportunity for protest is required. The point of diversion may not be transferred between administrative blocks in closed basins, across interstate stream gauges, or from one basin to another. Generally, it is easier to move water rights a short distance or downstream. The amount of water that can be transferred (arguably) is the amount that has vested at the transfer-to site.

9. HOW MANY HOUSES CAN SHARE A DOMESTIC WELL?

Pursuant to statute, permits for three acre feet for a domestic well "shall be granted." Counties may limit this right. Up to four residences can share water from a domestic well provided there is adequate water, a suitable well-share agreement is executed, and the neighbors are compatible. More than four residences triggers various water quality reporting requirements and generally creates a water shortage situation.

10. DO I NEED A WATER LAWYER?

It depends. The Office of the State Engineer is generally helpful and will do a water rights abstract of their files for a nominal fee. They have offices in Santa Fe, Albuquerque, Las Cruces, Roswell, Deming, and Farmington. Most clients and attorneys can handle simple changes of ownership and file for extensions of time. Qualified hydrologists and engineers can handle meter readings and submit technical reports. A knowledgeable water law attorney should be employed or consulted to file or protest water rights transfers, to draft leases, use agreements, and well-share agreements, and to represent parties in formal administrative and judicial proceedings.