Ask a Water Lawyer: Change in Place of a Use of a Water Right

posted in: News | 0

Enrique & Tayari Romero in Nambe, NM -Photo taken by Rita Topete

By Enrique Romero, NM Legal Aid

A member is proposing to change permanently the place of use of his water rights served by our Acequia. No other changes are proposed. The Acequia is capable of serving the new place of use, but it is not located on any historically irrigated land. The Acequia has adopted the transfer bylaw. Does the Acequia have jurisdiction over this type of change?

This is a fascinating question for water nerds like us – the staff at NMAA and NMLA – and presumably you, dear reader. I appreciate this question because it gives us the opportunity to review some of the differences between water banking and water transfers. Here's a head's up (and a spoiler alert): the change in the place of use described in the question is in fact a water transfer and is not the type of "temporary reallocation" accomplished through water banking. Let's talk about why that is.
Acequias that have adopted the transfer bylaw from NMAA's template have clear jurisdiction over this type of "transfer", namely, a change in the place of use. Appendix A of the template states: "[Any] proposed transfer by any person or entity must be formally considered by the Commission using the procedure set forth below, and must be approved prior to application for the transfer to the Office of the State Engineer. As used in this document, 'transfer' means any type of change or modification whatsoever to the point of diversion, and/or place of use, and/or purpose of use of a water right…" This provision is, of course, consistent with the state laws that give acequias authority over all water transfers: "Pursuant to the rules or bylaws duly adopted by its members, an acequia or community ditch may require that a change in point of diversion or place or purpose of use of a water right served by the acequia or community ditch…shall be subject to approval by the commissioners of the acequia or community ditch."
Now, as you must know after diligently reviewing NMAA's governance handbook, every acequia water right has certain elements. For example, every acequia water right has a specific point of diversion (which is the acequia's point of diversion off the water source, and not, as is sometimes thought, where the individual member takes his or her water from the acequia, i.e. an individual headgate), a purpose of use, and a specific place of use. The place of use is the historically irrigated parcel on which water has been continually and beneficially used. When a member wants to change the place of use to a location that has not been historically irrigated by the acequia – whether to a place off the ditch completely or to a place on the ditch capable of receiving water from and being served by the ditch – the commission of the acequia must make a determination as to whether the change will be detrimental to the acequia or its members.
Those of you who are familiar with water banking at this point might be wondering how this transfer is different from those temporary reallocations of water allowed through your acequia's water bank. After all, the water banking statute allows for "temporarily reallocating water without change of purpose of use or point of diversion to augment the water supplies available for the places of use served by the acequia or community ditch." Ok, that's a mouthful! Reread this passage and give yourself a minute to think about why the proposed change does not fall under water banking, and is instead a water transfer.
Great! You're back! Two key terms in the statute eliminate the possibility that the change of place of use proposed by the member is allowed through water banking: "temporary" and "served by". What the member is proposing is to transfer permanently his water rights to a new place of use currently not being served by the acequia. Even if he fashioned his application to allow for a temporary transfer to a new place of use, the new place of use is not currently served by the acequia. The proposal is a water transfer subject to the formal requirements of the acequia's water transfer bylaw, and don't let anyone tell you otherwise.