Every water right in New Mexico carries with it the right to use
water from a specific water
source to be used at a specific location
and for a specific purpose of use. A water right for irrigation
purposes is associated with a designated tract of land. When someone
sells his or her land, the sale
automatically includes any water
rights unless the seller specifically states in the deed that he or she
is
retaining ownership of the water right. As long as the tract of
land continues to be irrigated, without
any long periods of non-use,
the water right will remain valid.
Most irrigation water rights in
New Mexico became established simply by historic irrigation of
the
land and continuous use to the present. Surface water rights originating
prior to 1907 do not need
any kind of permit or paperwork to be
considered valid today, as long there is continued use. The land
does
not need to be plowed or planted with crops to have a water right; for
example, land that is
irrigated only for pasture or for a lawn can
have a valid water right. The only requirements are a manmade
diversion from a stream and beneficial use associated with the
irrigation. People who wanted
to obtain a new surface water right
after 1907 had to get a permit from the State Engineer, and could
only get one by proving that there was surplus water in the particular
stream system.
A “water right” differs from a “ditch right”. A water
right has to do with the state’s rules and
laws governing who can
take water from a stream. A ditch right usually refers to the specific
rules a
particular ditch has about being in good standing with the
acequia. A person can temporarily lose
ditch rights, for example, by
failing to pay dues, but can re-establish them by paying the back dues.
None of this affects the validity of the water right under state law.
But if a water right is lost according
to state law, it is
permanently lost. The state can only take away an established water
right if the
requirements of forfeiture or abandonment are met (see
“Forfeiture and Abandonment”). Usually it is
a court that determines
whether someone has lost his or her water right. The Office of the State
Engineer (OSE) often has an opinion about whether a water right has been
lost under state law, but if
there is any disagreement about the
OSE’s opinion, it must be resolved by a court. Likewise, an
acequia
cannot decide whether a water right is lost under state law. Only the
courts can make this
determination.
Every water right is legally
defined by a number of elements:
· Source of water (i.e., which
stream)
· Place of use (i.e., which tract of land and how many acres)
· Purpose of use
· Point of diversion
· Priority date (i.e., date
water was first put to use on the land)
· Amount of water (limit on
the volume of water that can be used per acre)content goes here
The complete New Mexico Acequia Governance Handbook can be read by clicking here.