Definitions: Statutory definition of “water right” and “beneficial use” (19.26.2.7, title 19, chapter 26, part 2.7): Water right: The legal right to appropriate water for a specific beneficial use. The elements of a water right generally include owner, point of diversion, place of use, purpose of use, priority date, amount of water, periods of use, and any other element necessary to describe the right. A permitted or declared right is considered to be a valid water right only to the extent water has been legally placed to beneficial use. Beneficial use: The direct use or storage and use of water by man for a beneficial purpose including, but not limited to, agricultural, municipal, commercial, industrial, domestic, livestock, fish and wildlife, and recreational uses. Beneficial use shall be the basis, the measure, and the limit of a water right. Prior Appropriation of Water Right: A legal doctrine that states that the first person to use water from a water source is given a priority to use this water over another person who started using it later in time. The person is required to divert, or build some sort of diversion in order to provide notice that the water was appropriated. Adjudications of Water Right: A civil lawsuit that involves the State Of New Mexico (represented by the Office of the State Engineer), and water rights claimants Point of Diversion: The location of constructed works where water is diverted from a stream, watercourse, or well. Acequia and Community Ditch Fund: Established to provide financial assistance for acequia and community ditch systems. Run through the New Mexico Department of Agriculture, and helps New Mexico’s future through the adjudication of water rights. Acequia Associations: legal entities that govern members’ water usage depending on local precedents and traditions. Water Rights: For my research so far, I have focused on the appropriation and use of surface waters in New Mexico. New Mexico seems to have a unique condition due to the fact that it was governed by Spain and Mexico (16th century) before becoming a United States Territory (1850) and then a State (1912). When New Mexico became a territory, the water rights that the Spanish and Mexican governments granted to irrigators and water users were continued and became protected. There are 5 basic tenants of New Mexico water rights:
State water belongs to the public. Only those with water rights may legally use water. These rights are considered private property.
In order to receive water rights, you must fill out a bunch of forms and applications and clear it with the State Engineer.
Older/senior water rights have priority. During dry years, senior rights holders have priority and will receive their full allotment of water while junior rights owners will not.
Water must be put to “beneficial use” (see above).
Rights owners can change the purpose of use or divert water from a different place if the State Engineer determines it won’t impair other water rights, harm public welfare, or run counter to water conservation.
Water rights can be forfeited for non-use or wasting water.
Tribal uses and community acequias are given priority because the New Mexico water code was established before statehood and these two entities have existed and continue to exist into the present day. Adjudications: Older/senior water rights have priority, but how is priority proven? This happens through the process of adjudication. A water rights adjudication is a civil lawsuit that involves the State of New Mexico (represented by the Office of the State Engineer), and water rights claimants. The claimant is anyone that may claim to be the owner of a water right. The claimants become the defendants while the State becomes the plaintiff. This process is very time intensive and requires a lot of resources.
All acequias are in the process of becoming adjudicated. Adjudication in this matter is a formal decision on the age of the acequia, thereby giving it an official priority date. A priority date becomes extremely useful in times of drought or times of limited water. Adjudication is for water users to stake their claim and show how much water they’ve used historically and how much they plan to use in the future.
Every adjudication that is initiated by the State starts with a hydrographic survey. This hydrographic survey becomes the basis of an offer from the State for water right. If at the time of the survey, no irrigation is taking place there will be a “no right” offer from the State. Public money is available from the Acequia and Community Ditch Fund to help pay for legal and technical defense. The Acequia Associations become a source of unity and strength for the individual defendants.
The adjudication process ends with an Offer of Judgment from the State which will be the State’s description of your water right and will include:
Priority
Surface or groundwater source
Point of diversion
Place and purpose of water use
Size of the irrigated parcel of land
Amount of water you have used over the years if you are a municipality or mutual domestic water users association
Source: Watermaster's Report, Rio Chama Mainstream, 2009
Short Video on New Mexico Water Rights and Adjudication: