OSE Document Preparation and Application Consultation
GGI can assist you with all the steps involved in water rights application preparation and consultation.
How do I Obtain a Water Rights Permit?
Since the water resources of the state have been fully appropriated for many years, most entities purchase water rights by converting an existing irrigation water right to another beneficial use. This conversion or water right permitting process typically requires the following:
- Determining the validity and transferability of a water right
- Submitting an Application to the OSE
- OSE acceptance of the application for publication
- Publication of a summary of the application in a newspaper of local circulation
- Technical review
- Findings and permit action (approval with conditions or denial)
- Permit implementation and compliance
Validation and transferability: Purchasing or leasing water rights is similar in many respects to the acquisition or lease of real estate. The purchaser or lessor must exercise the same level of caution and due diligence to ensure that the water rights proposed for transfer to his property are valid, transferable under the applicable rules of the OSE and in a quantity sufficient to meet project objectives.
The validity of a water right requires the purchaser to examine; the validity of ownership claims, the foundation documents (e.g. declaration, permit or adjudication order), granting of a license, history of use or non-use and compliance with applicable OSE conditions of use. Unlike real estate transactions, title insurance and title searches do not typically include the water rights “title assurances” that typically come with the land or previous commercial activity. You can minimize the risk associated with purchasing offsite water rights by having a clear and comprehensive purchase agreement that clearly states that you are purchasing only the consumptive use water rights (or CIR if irrigation right) approved by the OSE. You should make the purchase of offsite water rights contingent on OSE approval of the transfer application.
Making application to the OSE: Transferring a water right requires the filing of an application that clearly indicates that one or more actions or changes will take place:
- Change the point of diversion from surface water to groundwater
- Change point of diversion from one well to another
- Change place of use (irrigated land to future use(s); irrigated land to new irrigated lands)
- Change purpose of use (irrigation to municipal)
- Change in the amount of diversion
- Combine water rights presently under separate permit
- Commingle water rights to allow a water right user to combine places of use (i.e. consolidate water rights from multiple properties without changing how each well is used)
You should craft your water rights applications with as much flexibility and creativity as possible. The OSE uses different forms depending on the action required, and the filing fee may vary accordingly. It is often prudent to find out who at the OSE will be the likely reviewer of the application and to request that they review a draft of the application before its formal submittal.
Publication: Public notice of the application, via an ad placed in the legal section must be published once weekly for three consecutive weeks. The OSE prepares the Public Notice and you should check every word, number, period, and comma for accuracy prior to submitting it for legal publication. The newspaper you publish in must be of general circulation in the county or counties affected by the transfer. Publication in two or more newspapers may be required if the move from and move-to locations are in different counties, or if granting the application may have a substantial effect beyond your county’s boundaries. The OSE specifies the form and content of the notice and the newspaper(s) that must be used.
You as an applicant have the burden to ensure that the exact content of the public notice is complete and correct. To minimize the chance of having to re-publish due to typographic or other errors, you should carefully review the legal notice provided by the OSE, and also ask the newspaper to provide you with a proof copy for review prior to publication. It is also prudent to obtain a copy of the newspaper for the notice’s first date of publication to ensure there are no printing errors.
Protest: The water right application process is public and allows individuals and private and public entities to protest or object to the granting of the application. Valid protests must be sent to the OSE 10 days after the last (third) date of publication of the legal notice. The OSE does not have strict standards defining or limiting who can protest and on what grounds. Many protests are filed out of legitimate concern that granting the application will have an adverse affect on their wells or surface water supplies, and their ability to fully exercise their water rights. However, in recent years some dairy applications have also been protested due to environmental or land use concerns outside the jurisdiction of the OSE. While the establishment and enforcement of environmental regulations and permits is normally within the purview of the New Mexico Environment Department (NMED) or the U.S. Environmental Protection Agency (USEPA), the OSE can condition approval of dairy permits on the applicant’s ability to demonstrate compliance with applicable NMED and USEPA permits and regulations.