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<br />" <br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />WATER AND WATER RIGHT TRANSFERS <br />IN <br />NEW MEXICO <br /> <br />9/27/88 <br /> <br />I. State Policy regarding Water Transfers - <br />--mere 1S no wrltten or-ornerwlse explicit state policy in New Mexico <br />regarding the transfer of water or' water rights from one use and user to <br />another. However, water rights in the state are considered and treated as <br />property ri~hts severable from the land by statute, judicial decision, and <br />administratlve practice. As such, the rights are transferable from one use <br />and user to another subject to certain restrictions regarding impairment, <br />public welfare, and the conservation of water. . <br /> <br />As is common practice in all western states, water rights may not be <br />transferred among different uses and users if the transfer would impair the <br />right of another established rightholder. This "no impairment" restriction is <br />a lon~ standing rule which has resulted in a body of case law and <br />adminlstrative practice which operationally interprets this restriction. More <br />recent restrictions which prohibit transfers if they are contrary to the <br />public welfare or conservation of water were enacted after the U.S. Supreme <br />Court s~orhase decision. Issues regarding their operational interpretation <br />have no been resolved, and there exist competing perspectives regarding their <br />scope. <br /> <br />The competing perspectives are illustrated in the recent report, Water: <br />The Lifeblood of New Mexico. That report is the product of the Second New <br />Mexico lown HaTT,-neld on May 15-18, 1988, through the sponsorship of New <br />Mexico First, a non-profit, non-partisan, organization created through the <br />auspices of the state's two U.S. Senators. The report endorses "open market <br />competition" as "the best method for shifting the use of the.available water <br />supply." But it simultaneously supports the use of "public welfare <br />considerations...to protect values associated with historical and customary <br />use of water." No recommendation is made regarding a policy for resolving <br />existin~ and potential conflicts between "market competition" and the <br />protectlon of traditional "values." <br /> <br />2. Extent and Characteristics of Transfer Activity <br /> <br />The principal method by which water is reallocated to new uses within New <br />Mexico is the sale and purchase of the water rights themselves, as contrasted <br />with the sale and purchase of the water corpus alone. Although there is some <br />anecdotal evidence of transfers of water within irrigation or conservancy <br />districts apart from the transfer of the underlying water right, this method <br />of reallocation does not appear to be a significant factor in the changing <br />pattern of water use within the state overall. There is some leasing of water <br />rights for fixed periods of time as opposed to outright sale, but this method <br />of transfer also appears to be of secondary importance. <br /> <br />All parties proposing changes in place or purpose of use of a water <br />right, whether it be a right to surface water or groundwater, must file <br />application with the State Engineers Office (SED). These applications then <br />follow administratively specified procedures in which they are scrutinized for <br />conformity with the transfer restrictions described above. All transfer <br />applications are contained within water rights files within one of four <br />offices of the SEO. Tables 1 and 2 report the total number of applications <br />filed during the 1974-1987 period. <br /> <br />As a major task of this research project, a team of students, relying on <br />the close cooperation of SED personnel, has been manually reviewing all water <br />