How do I obtain a water right permit?
In New Mexico, three different routes may be appropriate to obtain a permit:
- 72-12 permits – offer a limited volume of water to support a residence, a business, or livestock in an area without public water supply
- In an undeclared basin, it is possible to file a water right declaration to obtain a new water right permit
- In a declared basin, no new water rights, except 72-12 permits, will be granted. The only option to obtain a right is to purchase an existing water right
A water rights purchase typically entails the following:
- Determining the validity and transferability of a water right
- Changing the ownership of the water right at the Office of the State Engineer (OSE) and record this change at the appropriate County Clerk’s Office
- Submitting an application to the OSE to transfer the right to a new place of use and point of diversion (and potentially purpose of use)
- OSE acceptance of the application for publication
- Public notice of the application in a newspaper of local circulation
- Technical review by OSE staff
- Findings and permit action (approval with conditions, or denial) by the OSE
- Permit implementation and compliance
Why should I conduct water rights research?
The purpose of the water rights research is to abstract/validate a water right to minimize the risk that the right may have been previously sold or is not valid for a variety of reasons. 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.
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 rights (or crop irrigation requirement, if irrigation right) approved by the OSE.
Ownership:The initial step in abstracting/validation of a water right is determination of ownership. 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 property records (plat maps and deeds). 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 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 declaration 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 availability and applicability, the following documents should be researched and examined include:
- 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
Legal files: These records pertain to past and ongoing adjudication suits. Copies of executed water rights 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 rights file number.
How do I transfer a water right after the purchase?
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 well diversion amounts)
Publication: Public notice of the application, via an ad placed in the legal section must be published once weekly for three consecutive weeks. 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 prepares the public notice, and you should check every word, number, period, and comma for accuracy prior to submitting it for legal publication. You as an applicant have the burden to ensure that the exact content of the public notice is complete and correct. You should also ask the newspaper to provide you with a proof copy for review prior to publication.
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 effect 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.