Water problems have always plagued New Mexico. Its inhabitants have struggled with how to survive in a land thirsty for water from long before recorded history. Just as past leaders of this arid land have tried to implement policies and laws to distribute the precious resource of water equitably, our present and future leaders will continue to wrestle with how to most wisely manage water in New Mexico.
Modern water law has been forged by history. Concepts, attitudes, the language found in today’s constitution, statutes, and judicial decisions addressing New Mexico’s water law have long-standing historical roots. A brief overview of the peoples who have inhabited New Mexico provides a basic understanding of current water law

Buynak, Brigette

Oglesby, Adrian

English

University of New Mexico

Water Matters! 
Volume 2015 Article 6 
1-1-2014 
Basic Water Law Concepts 
Brigette Buynak 
Adrian Oglesby 
University of New Mexico - School of Law 
Follow this and additional works at: https://digitalrepository.unm.edu/utton_watermatters 
Recommended Citation 
Buynak, Brigette and Adrian Oglesby. "Basic Water Law Concepts." Water Matters! 2015, 1 (2015): 1-1-1-6. 
https://digitalrepository.unm.edu/utton_watermatters/vol2015/iss1/6 
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Basic Water Law Concepts | 1-1Water Matters!
“The unappropriated water of
every natural stream, perennial
or torrential, within the state
of New Mexico, is hereby
declared to belong to the
public and to be subject to
appropriation for beneficial
use, in accordance with the
laws of the state.  Priority of
appropriation shall give the
better right.”
Constitution of the State of 
New Mexico, Article XVI,
Irrigation and Water Rights
“Pursuant to the several statutes
relating to the administration
of the appropriation and use of
water, including priority
administration, the State
Engineer must see to it that
senior water rights are not
impaired by new
appropriations.”
Bounds v. D’Antonio, 
2013-NMSC-037, 
306 P.3d 457 
Basic Water Law Concepts
History of New Mexico Waters: A Brief Overview
Water problems have always plagued New Mexico.  Its inhabitants havestruggled with how to survive in a land thirsty for water from longbefore recorded history.  Just as past leaders of this arid land have tried
to implement policies and laws to distribute the precious resource of water
equitably, our present and future leaders will continue to wrestle with how to
most wisely manage water in New Mexico.
Modern water law has been forged by history.  Concepts, attitudes, the language
found in today’s constitution, statutes, and judicial decisions addressing New
Mexico’s water law have long-standing historical roots.  A brief overview of the
peoples who have inhabited New Mexico provides a basic understanding of
current water law.  
Pueblos and Tribes: New Mexico’s indigenous peoples have been harnessing water
for irrigation since as early as 800 A.D.  Ancient canals still wind throughout the
modern lands of New Mexico.  When the Spaniards arrived in the mid 1500s,
the Pueblos and Navajos were established agrarians, with developed irrigation
canals and ditches.  Early settlers noted the growing of corn, beans, melons, and
other crops that depend upon a wide variety of irrigation methods.  The Pueblo
Indians are the first people known to have placed water to beneficial use in New
Mexico, which today entitles them to the earliest priority dates for their water
rights.  
Spanish Influence: The Spaniards brought to the new world their legal principles
for governing water usage.   Central to their water management approach was the
acequia, a community managed water distribution system.  Developed by the
Moors and Berbers, the acequia was a water conveyance system common in
fifteenth-century Spain.  Spanish settlers brought this system into the New
World where it matured into the community acequia.  The
acequia management system became the generally accepted
basis for water administration in New Mexico.  The first
acequias were constructed in New Mexico by the earliest
Spanish colonists in about 1598 at Chamita on the lower
Rio Chama.
Early settlers noted the growing of corn,
beans, melons and other crops which
depended upon a wide variety of
irrigation methods.
1-2 | Water Matters! Basic Water Law Concepts
Treaty of 
Guadalupe Hidalgo
From a Mexican Province to an American
Territory: Under both Spanish and Mexican
rule, the equitable distribution of water was a
frequently contested issue.  Most disputes
were resolved at the local level, but provincial
governors sometimes determined the
outcome of more difficult cases.  During
times of shortage, locally imposed interim
measures allowed contending groups to share
the shortage until precipitation brought
increased stream flow.  Although not
everyone was happy with the process, it
provided community participation and
reflected time-honored procedures for water
management.  According to historian John
Baxter, the goal seemed to be the healing of
rifts within the community rather than
determining a legal winner and loser.
Feeling national growth and expansion to be
its “Manifest Destiny,” the United States
began to look to the lands of New Mexico.
In September of 1846, a month after
General Stephen Watts Kearny led the U.S.
Army of the West unopposed into Santa Fe,
he implemented a legal code for the new
territory.  It provided protection to the
inhabitants of their life, property, and
religion.  The Kearny Code stated that the
“laws, heretofore in force concerning water
courses, . . .shall continue in force.”  
In 1848, the United States and Mexico
entered into a peace treaty to end the
Mexican-American War.  The Treaty of
Guadalupe Hidalgo transferred New Mexico
and California to the United States.  Five
years later, the strip of land in the most
southern parts of New Mexico and Arizona
was added under the Gadsden Treaty.  Under
both treaties, inhabitants’ pre-existing
property rights are to be respected.  
New Mexico water law began changing in
the 1880s with the coming of the railroad
and outside investors.  The territorial laws,
written in the late nineteenth century and
During times of shortage, locally imposed
interim measures allowed contending groups to
share the shortage until precipitation brought
increased stream flow.  
Basic Water Law Concepts | 1-3Water Matters!
later adopted by the State through its
constitution and statutes, were based on
Western mining laws and embraced the
concept of prior appropriation.  Miners who
staked claims needed to use water and with
those needs came the question of how to
determine rights to stream flow diversions.
Since titles to mining claims were based on
“first in time, first in right,” the same
principle was applied to the appropriation of
water, resulting in the development and
adoption of the prior appropriation doctrine.  
In an 1891 Territorial Supreme Court case,
Trambley v. Luterman, the Court specifically
identified prior appropriation as the law of
New Mexico.  The Court found that an
earlier appropriation of water for a grist mill
on the Gallinas River near Las Vegas, New
Mexico, takes precedence over a subsequent
owner’s assertion of a water right under the
common law doctrine of riparian rights.  The
Court’s rejection of riparian rights in favor of
prior appropriation created a precedent that
has been since consistently followed in the
state.  In 1905, the territorial assembly
reduced existing practices regarding surface-
water use to statutory form without
substantial alteration.  New Mexico’s system
closely paralleled the appropriation doctrine
developed by settlers in other western states
and territories.  
In 1907, New Mexico’s territorial legislature
passed a comprehensive code of water law,
which still forms the basis for the State’s
water laws and regulations today.  In
addition to codifying certain rights and
practices, the legislature centralized the
administration of water with the creation of
the territorial engineer (now the State
Engineer).  This official has general authority
to supervise the waters of New Mexico
including the measurement, appropriation,
and distribution of water.   
Statehood: When New Mexico became a state
in 1912, its constitution formally adopted
the principles of public ownership of water
and the doctrines of prior appropriation and
beneficial use found in the 1907 Water
Code.  
Early in its statehood, New Mexico entered
into three compacts with neighboring states.
These compacts attempted to minimize
conflicts over the Colorado and La Plata
rivers and the Rio Grande.  Compacts were
seen as an alternative to litigation with
neighboring states.  New Mexico is now a
party to eight interstate compacts,
administered by the New Mexico Interstate
Stream Commission. 
The federal government also played a
significant role in early New Mexico water
law, entering into a Treaty with Mexico for
delivery of Rio Grande waters in 1906.  The
federal government rehabilitated irrigation
works on the lower Pecos River in 1908, and
formed the Carlsbad Irrigation District.  The
federal government then built Elephant
Butte Dam to serve the Rio Grande Project
in 1916.  Federal-state relations over water
issues continue to be significant, especially in
regard to financing water infrastructure
projects, protecting water quality, and
recovering endangered species.
Legal Concepts: A Brief Overview
Prior Appropriation: The doctrine of prior
appropriation states that when shortages
occur, the right to use water is determined by
the chronological order in which the water
In 1907, New Mexico’s territorial legislature
passed a comprehensive code of water law,
which still forms the basis for the State’s water
laws and regulations today.  
The doctrine of prior appropriation states that
when shortages occur, the right to use water is
determined by the chronological order in
which the water was put to beneficial use.
“Senior” appropriators are served first, and in a
water-short year, “junior” appropriators may
receive a reduce amount or no water,
depending on the supply.  
1-4 | Water Matters! Basic Water Law Concepts
was put to beneficial use.  “Senior”
appropriators are served first, and in a water-
short year, “junior” appropriators may
receive a reduce amount or no water,
depending on the supply.  A senior user is
the first person to apply a quantity of water
to a specific beneficial purpose.  Subsequent
users from the same source can use the
remaining water for their own beneficial
purposes, provided that they do not impinge
on the rights of prior appropriators.  The key
word is “use” as the doctrine awards a water
right to the person actually using the water.  
Beneficial Use: Fundamental to maintaining
water rights under a system of priority
administration is the requirement that a user
apply the water to a beneficial use.
Beneficial use does not include the wasteful
use of water.  In fact, either wasting water or
using water without authorization is a crime
in New Mexico.  A water right may be lost
through “forfeiture” or “abandonment.”
Under either mechanism, the owner loses the
right for failure to “beneficially use” the
water.  The idea is that if a senior water user
no longer appropriates water, the water can
be freed up for someone else to use.  The
New Mexico Constitution states “Beneficial
use shall be the basis, the measure and the
limit of the right to the use of water.” 
The New Mexico Constitution does not
define beneficial use, but judicial decisions
and statutes characterize it as including
irrigation, domestic, commercial and
industrial, game and fish, and endangered
species uses.  There is no priority scheme by
type of use for allocation of water during
shortages.
Article 16 of the New Mexico Constitution
provides that the water of every natural
stream, perennial or torrential, not
appropriated prior to statehood belongs to
the public and is subject to appropriation for
beneficial use.  A water right is actually a
right to “beneficially use” water, not a right
to own water.  Water rights can be conveyed
with real property or severed from the
property and sold separately.  When a water
right is sold, it retains its original
appropriation date and is limited to the
amount of water historically consumed for
that use.  
Pre-1907 Water Rights: The New Mexico
Constitution recognizes and confirms all
existing appropriations of water for useful or
beneficial purposes.  These pre-existing
vested water rights date from the initial use
of that water.  After 1907, a permit from the
State Engineer was required for any new
appropriations of surface-water.  One may
still claim pre-1907 surface-water
appropriations by filing a declaration of use
with the Office of the State Engineer (OSE).
A limited review of a declaration is
performed to be sure there is no overlap with
another declaration.  However, under current
practice, outside of the adjudication process,
the State Engineer will not formally
recognize pre-1907 water rights until a
transfer or change of use is proposed, at
which time the OSE will undertake a validity
study.  The practice for determining the
validity of pre-1907 rights may vary from
basin to basin according to the type of
records available.  
Surface Appropriations: Since 1907, a person
may use unappropriated surface-water or
transfer existing water rights after receiving a
permit from the State Engineer.  The
Engineer must find that there is water
available and that approval of the application
will not impair existing rights, be
detrimental to the public welfare of the state,
or be contrary to water conservation.  The
provisions for public welfare and
conservation, although not defined, were
added to the law in 1985.  If the new use of
water meets these criteria, the State Engineer
will issue the requested permit.  Once the
water has been put to beneficial use as
described in the permit, the applicant may
Article 16 of the New Mexico Constitution
provides that the water of every natural stream,
perennial or torrential, not appropriated prior to
statehood belongs to the public and is subject to
appropriation for beneficial use.  
Basic Water Law Concepts | 1-5Water Matters!
submit proof of the beneficial use of the
water to have the water right formally
licensed by the State Engineer.  
Groundwater: The State did not regulate
groundwater use until 1931 when the
legislature declared groundwater to be public
and subject to appropriation for beneficial
use.  In basins that are “declared,” that is, in
areas where the State Engineer deemed it
necessary to limit the unregulated and
unlimited use of groundwater, the State
Engineer requires permits for new
groundwater appropriations like those
required for surface-water appropriations.
The State Engineer makes these designations
based upon the source aquifers being non-
rechargeable or connected to streams.  The
criteria for issuance of groundwater permits
are essentially the same as for surface-water
claims.  In 2006, the State Engineer
completed the declaration of all groundwater
basins within the state. For more information,
please see the chapter “Groundwater” in this
edition of Water Matters!. 
Priority and Alternative Administration:
Under the doctrine of prior appropriation,
water rights owners are entitled to a given
quantity of water for a specified purpose.
Each water right also has an associated
priority date based on when owner took the
first steps to put the water to beneficial use.
Each year, the senior owner who has the
earliest appropriation date may use up to the
full amount of the water right, provided that
the water source can supply it.  Then the
owner with the next earliest appropriation
date may use his or her full allocation and so
on.  During shortages, junior owners might
not receive their full allocation or even any
water at all.  Under the prior appropriation
system, shortages are not shared and do not
result any diminishment of the amount a
senior appropriator can take, if sufficient
water is available.  Understandably, priority
administration can be technically and
politically challenging.  For instance in years
of low runoff, it is difficult to prevent the
delayed impacts on senior surface-water right
owners from pumping that has occurred in
previous years by junior groundwater users.  
The New Mexico Supreme Court has
recognized the broad discretion of the State
Engineer to administer water within New
Mexico’s version of the prior appropriation
system.  Historically, there have been many
water sharing agreements among water users
in times of shortage, including water rotation
and scheduling agreements.  The State
Engineer encourages local communities’
agreements that avoid the need to strictly
enforce the priority system.  
The State Engineer has also been authorized
to administer water right priorities in areas
where the courts have not yet formally
determined the priority dates and quantities
of existing water rights through adjudication.
With the establishment of water districts and
water masters, the State Engineer can enforce
priorities or local agreements, even in the
absence of fully adjudicated water rights.  The
state Supreme Court upheld this authority in
the 2012 case, Tri-State v. D’Antonio.  For
more information, please see the chapter
“Active Water Resource Management” in this
edition of Water Matters!.
Adjudication: The State’s statutes charge the
State Engineer with pursuing water rights
adjudications as one of its water
management responsibilities.  The purpose
of an adjudication is to formally describe
water uses in a stream system so that the
State Engineer can effectively carry out his
statutory mandate to apportion and
administer water within that system.  An
adjudication results in a final decree that
defines and formalizes all rights to a stream
system’s water supply. The decree quantifies
and legally determines: all surface-water
rights that predate the State’s adoption of the
1907 water code; all groundwater rights that
predate the State Engineer’s assertion of
administrative authority over a groundwater
basin; all water rights that are subject to State
Engineer permitting; and the relative
The State’s statutes charge the State Engineer
with pursuing water rights adjudications as one
of its water management responsibilities.  
1-6 | Water Matters! Basic Water Law Concepts
priorities of all water rights, both Indian and
non-Indian, that share a common
hydrologically connected source.  Ultimately
these adjudications should help the State
define its existing water rights, meet its
interstate compact obligations, manage
shortages, and protect the state’s waters.  
For more information, please see the chapter
“Adjudication” in this edition of Water
Matters!. 
By Brigette Buynak, Esq. (2008)
Updated by Adrian Oglesby, Esq.
Sources and Contributors
Treaties, Constitutions, and Statutes
Gadsden Treaty, art. V, U.S.-Mex., Dec. 30,
1853, 10 Stat. 1031.
Treaty of Guadalupe Hidalgo of 1848, art.
III, U.S.-Mex., Feb. 2, 1848, 9 Stat. 922.
N.M. Const. art. XVI, § 3, Beneficial 
Use of Water.
NMSA 1978, 
§ 72-1-1 (1907), Water Code of 1907.
§ 72-5A-6 (1985), State engineer; 
powers and duties; permit; 
monitoring requirements.  
§ 72-12-1 (1931), Underground Waters.
Kearny Code of Laws of Sept. 22, 1846,
Pamphlet 3, p. 3, NMSA (1978).
Cases
Bounds v. D’Antonio, 2013-NMSC-037, 
306 P.3d 457.
Trambley v. Luterman, 1891-NMSC-016, 
6 N.M. 15, 27 P. 312. 
Tri-State Gen. & Trans’n Ass’n., Inc. 
v. D’Antonio, 2012-NMSC-039, 
289 P.3d 1232. 
Other
JOHN O. BAXTER, DIVIDING NEW MEXICO’S
WATERS, 1700–1912 (1997).
IRA CLARK, WATER IN NEW MEXICO: 
A HISTORY OF ITS MANAGEMENT
AND USE (1987). 
N.M. Office of the State Engineer/Interstate
Stream Commission, State Water Plan
(2003), http://www.nmdrought.state.nm.
us/dtf_water_plans.html
N.M. Legislative Council Service, 
Water in New Mexico (1999).
Contributor
Stephanie Beninato, Ph.D., J.D.


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