Water Rights Evaluation: Historical & Field Analysis of Land
Documentation of irrigation features, Northern NM
Authentication/Validation
The purpose of the water right authentication/validation process is to minimize the risk that a water right may have been previously sold or is not valid for a variety of reasons. The water right authentication/validation process includes: 1) tracing its ownership back to the original water right holder, 2) determining the elements and quality of the right, and 3) determining its transferability.
Pond for wildlife habitat fed by surface water flows.
Ownership
The initial step in abstracting/authenticating a water right is determination of ownership of the water right. Abstracting water rights ownership is analogous to compiling a “chain of title” used to track ownership of the water right. If the records are in order, the ownership may be easily determined from real property records (plat maps and deeds) for irrigation rights. Each deed should be examined to determine if any part of the water right has been severed from the land. The legal description of the real property should also be examined to ensure that it has not changed from one transaction to another.
The owner of a vested, permitted, or adjudicated water right at the time of its initial beneficial use can be easy to ascertain since the permittee is the owner of the right. Similarly the owner in a chain of title search for an adjudicated water right is the defendant identified in the adjudicatory order. Depending on their availability and applicability, the following documents that should be researched and examined may include some or all of the following:
· Deeds
· Plat maps
· Title reports
· Mortgage notes
· Declaration of ownership of a water right
· Permits issued by the OSE
· Adjudicatory orders
· Change of Ownership of Water Right document
· Hydrographic survey reports and maps
The authenticity and usefulness of these documents requires that they are properly completed, signed and recorded with the appropriate custodian of public records.
Sources of Water Right Information
Water right files: These are public records created and maintained by the Water Rights Division of the OSE. They include documents (forms, filing maps, correspondence, records of field checks, meter readings, technical analyses, etc.) pertaining to declarations, permits and changes of ownership. Some documents (such as legal staff review) related to enforcement action or application review are not publicly available. The publicly available records can be found in the OSE’s main Santa Fe office and in district offices located around the state. Some records are available online through the agency’s iWATERS digital database (www.ose.state.nm.us). Records are located and tracked by means of a water right File Number.
The records of OSE review and action on transfer applications involving similar circumstances may also provide useful, precedent information related to the transferability of a water right. Keep in mind that previous approval of a water rights transfer does not guarantee that the same conditions of approval will be applied as in the previous transfer.
Legal files: These records pertain to past and ongoing adjudication suits. Copies of executed water right offers of judgment and final adjudicatory orders are usually made available upon request since these documents are in the public records of the court having jurisdiction. Finalized hydrographic survey maps and reports are also available to the public. Draft maps may be available to the public at the discretion of the OSE. Adjudication records are tracked by the court assigned case number and a water right subfile number assigned by the OSE. A subfile number is not the same as the water right File Number.
Livestock well on irrigated ranch land, near Taos, NM.
Field investigation
A field investigation on behalf of the purchaser to determine if the water rights have been put to historical beneficial use of an irrigation right is essential especially if the subject water right has not been adjudicated. The main purpose of the site visit is to ascertain if the water rights are susceptible to a claim of forfeiture or abandonment. Things to look for include:
· Are the fields tilled or is there evidence of past farming activities?
· Condition of diversion works
· Condition of conveyance works
· Presence of permanent structures constructed on formerly irrigated land
· Presence of excessive phreatophytes
· Water-logged soils/high water table
· Meter readings for groundwater rights
Additional site information may be obtained from aerial photographs, irrigation district maps and payment records, county assessor records, acequia/mayordomo records and federal/state project reports, surveys and maps.
Coring of fruit tree to determine age of irrigated orchard
Measurement of flow from diversion into acequia (irrigation ditch) Overlay of land ownership or hydrographic survey map