By Enrique Romero,
New Mexico Legal Aid
Since 2003, acequia communities have the ability to keep decision making power over water transfers local. Many of New Mexico's 800-plus acequias have adopted a water transfer bylaw – a statutory requirement if the acequia wants to have jurisdiction over water transfers affecting their members. The New Mexico Acequia Association's template water transfer bylaw requires that transfers of water rights served by the acequia, or transfers of water rights so that they are moved into and then served by the acequia, be approved by the acequia's commission before proceeding to the State Engineer. If the transfer would be detrimental to the acequia or its members, the commission may deny the transfer.
The demand for water transfers has not diminished since 2003 and acequias continue to take advantage of this Legislative grant of authority by adopting the transfer bylaw, conducting meetings, hearing from their members, and issuing decisions on proposed transfers. Most acequias that have received applications to transfer water rights have received assistance from New Mexico Legal Aid or the New Mexico Acequia Association. Because following the 2003 acequia water transfer law requires attention to a lot of detail, we STRONGLY encourage you to contact one of these organizations ANY TIME your acequia receives ANY document relating to a proposed transfer of water rights – we very much want to help your acequia implement this important law!
Over a decade has passed since the Legislature granted this authority to acequias, but many acequias still have not adopted a water transfer bylaw. In addition, resourceful, and perhaps disingenuous, water transfer applicants have created a need for acequias to be vigilant and become informed about the water transfer process even if the acequia has a water transfer bylaw.
So, what is a water transfer exactly? A water transfer under acequia jurisdiction is simply a change in one or more of the following elements of a water right: point of diversion, place of use, and/or purpose of use. Every acequia water right shares the same point of diversion (POD): the acequia's point of diversion from a water source like a stream or a spring. When an applicant wants to change the POD in any way – for example, from the acequia's POD to a well, or to a pump from the river that is the source of the acequia's water – the water transfer bylaw requires that the applicant seek the acequia commission's approval. Another possible water transfer involves a change in the purpose of use. Most acequia water rights are associated with irrigation use only. If an applicant wants to change all, or a portion of, his water rights from irrigation to say, sand and gravel washing, he has to get the commission's approval first.
The clearest example of a water transfer is when an applicant wants to move his acequia water rights off the acequia completely to a different place of use – for example, to a municipal well for use on locations throughout the municipality. This type of transfer is actually a change in the POD (from acequia POD to a groundwater well POD), place of use (from applicant's irrigable land to land within the city limits) and purpose of use (from irrigation to municipal/domestic).
Regardless of whether the proposed change is permanent or temporary, partial or complete, a supplemental or additional POD used to supplement an irrigation water right, or labeled an "emergency transfer" – to name a few ways applicants have presented these changes to acequias and the State Engineer – if there is a change to the POD, purpose, and/or place of use of the water right, the acequia makes the decision about whether to allow the transfer in the first instance. If the acequia approves it, the State Engineer must then review the application and provide an analysis before approving it. If the acequia denies the transfer, the State Engineer is foreclosed from considering the application.
Because of some confusion at the acequia and State Engineer levels about what constitutes a type of transfer that falls within the jurisdiction of the acequia, NMAA has updated its bylaws template to include new provisions that clarify the types of transfers acequias may regulate and the actions commissioners must take in order to ensure the integrity of the water transfer process. If your acequia does not have a water transfer bylaw, or you would like to amend your bylaws to include the new language from NMAA's template, please call NMAA for assistance.
If your acequia has received an application for a water transfer, or someone has presented the commission with a document to sign regarding a proposed change – like an affidavit or a letter purporting to approve a change – contact NMAA or NMLA immediately and we will guide you through the process to ensure the acequia follows the law and its bylaws with regard to water transfers.
*For further advice or questions on water transfers, please contact NM Acequia Association (505) 995-9644 or NM Legal Aid (505) 501-7997*