2023 New Mexico Statutes › Chapter 72 - Water Law › Article 12 - Underground Waters › Section 72-12-8 - Water right forfeiture.

A. When for a period of four years the owner of a water right in any of the waters described in Sections 72-12-1 through 72-12-28 NMSA 1978 or the holder of a permit from the state engineer to appropriate any such waters has failed to apply them to the use for which the permit was granted or the right has vested, was appropriated or has been adjudicated, the water rights shall be, if the failure to beneficially use the water persists one year after notice and declaration of nonuser given by the state engineer, forfeited and the water so unused shall revert to the public and be subject to further appropriation; provided that the condition of notice and declaration of nonuser shall not apply to water that has reverted to the public by operation of law prior to June 1, 1965.
B. Upon application to the state engineer at any time and a proper showing of reasonable cause for delay or for nonuse or upon the state engineer finding that it is in the public interest, the state engineer may grant extensions of time, for a period not to exceed three years for each extension, in which to apply to beneficial use the water for which a permit to appropriate has been issued or a water right has vested, was appropriated or has been adjudicated.
C. Periods of nonuse when irrigated farm lands are placed under the acreage reserve program or conservation reserve program provided by the federal Food Security Act of 1985, P.L. 99-198, shall not be computed as part of the four-year forfeiture period.
D. Periods of nonuse when water rights are acquired and placed in a state engineer-approved water conservation program by an individual or entity that owns water rights, an artesian conservancy district, a conservancy district, a soil and water conservation district organized pursuant to Chapter 73, Article 20 NMSA 1978, an acequia or community ditch association organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, an irrigation district organized pursuant to Chapter 73, Articles 9 through 13 NMSA 1978 or the interstate stream commission shall not be computed as part of the four-year forfeiture statute.
E. A lawful exemption from the requirements of beneficial use, either by an extension of time or other statutory exemption, stops the running of the four-year period for the period of the exemption, and the period of exemption shall not be included in computing the four-year period.
F. Periods of nonuse when water rights are acquired by incorporated municipalities or counties for implementation of their water development plans or for preservation of municipal or county water supplies shall not be computed as part of the four-year forfeiture statute.
G. Periods of nonuse when the nonuser of acquired water rights is on active duty as a member of the armed forces of this country shall not be included in computing the four-year period.
H. The owner or holder of a valid water right or permit to appropriate waters for agricultural purposes appurtenant to designated or specified lands may apply the full amount of water covered by or included in that water right or permit to any part of the designated or specified tract without penalty or forfeiture.
I. Water deposited in a lower Pecos river basin below Sumner lake water bank approved by the interstate stream commission or an acequia or community ditch water bank shall not be computed as part of the four-year forfeiture period.
History:
Laws 1931, ch. 131, § 8; 1941 Comp., § 77-1108; 1953 Comp., § 75-11-8; Laws 1957, ch. 118, § 1; 1959, ch. 7, § 1; 1961, ch. 32, § 1; 1963, ch. 195, § 1; 1965, ch. 250, § 2; 1967, ch. 182, § 2; 1978, ch. 153, § 2; 1983, ch. 2, § 3; 1985, ch. 198, § 2; 1987, ch. 113, § 2; 1991, ch. 102, § 2; 1996, ch. 36, § 2; 1997, ch. 134, § 2; 1998, ch. 37, § 2; 2002, ch. 77, § 3.
ANNOTATIONS
Cross references.
— For penalty for appropriation of forfeited water or water rights without permit,
see
72-12-11 NMSA 1978.
For state engineer,
see
72-2-1 NMSA 1978.
For comparable forfeiture provision relating to surface waters, see 72-5-28 NMSA 1978.
For water conservation program,
see
73-1-20 NMSA 1978.
For the Food Security Act of 1985, P.L. 99-198,
see
Titles 7, 15 and 16 of the United States Code.
The 2002 amendment,
effective May 15, 2002, added Subsection I.
The 1998 amendment,
effective May 20, 1998, in Subsection D, inserted "an individual or entity that owns water rights," and "a soil and water conservation district organized pursuant to Chapter 73, Article 20 NMSA 1978".
The 1997 amendment,
effective June 20, 1997, rewrote Subsection D.
The 1996 amendment,
effective May 15, 1996, substituted "for a period not to exceed three years for each extension" for "not to exceed a term of one year for each extension" in Subsection B.
The 1991 amendment,
effective June 14, 1991, inserted "conservancy district or the interstate stream commission" in Subsection D.
The 1987 amendment,
effective June 19, 1987, in Subsection C substituted "reserve program provided by the Food Security Act of 1985 (P.L. 99-198)" for "program provided by the Soil Bank Act (Public Law 540, 84th Congress)".
The 1985 amendment
substituted "Sections 72-12-1 through 72-12-28 NMSA 1978" for "Sections 72-12-1 through 72-12-10 NMSA 1978" near the beginning of Subsection A and deleted the last sentence in Subsection F, relating to a water development plan for incorporated municipalities or counties.
Distinction between holders and owners.
— The legislature was aware of the distinction between holders of permits and owners of water rights.
Hanson v. Turney
, 2004-NMCA-069, 136 N.M. 1, 94 P.3d 1.
Appropriative right to water is lost by nonbeneficial user thereof
for period of four years.
State ex rel. Erickson v. McLean
, 1957-NMSC-012, 62 N.M. 264, 308 P.2d 983.
New Mexico's groundwater forfeiture statute allows for partial forfeiture of water rights.
— Forfeiture is an essential enforcement mechanism for New Mexico's beneficial use doctrine, and there is no distinction between partial forfeiture and forfeiture. Beneficial use is the measure of the water right, whether a water owner has ceased to use all of a water right or has ceased to use part of a water right, and therefore where petitioner, for more than four years, used only three acre-feet per year of water for livestock purposes from a claimed 394 acre-feet per year water right, the special master did not err in finding that New Mexico's groundwater forfeiture statute, § 72-12-8 NMSA 1978, allows for partial forfeiture and that petitioner forfeited his water rights above the three acre-feet per year for failure to put the water to beneficial use.
State ex rel. Off. of St. Eng'r v. Romero
, 2022-NMSC-022,
aff'g
2020-NMCA-001.
Partial forfeiture is a potential consequence of non-use of a portion of groundwater rights.
— Where defendant, after purchasing property where a water well was located, filed a declaration of groundwater rights with the state engineer, and where the declaration stated that the well was used from 1921 through 1966 for providing water to steam locomotives and from 1992 through 1995 for livestock watering purposes, the district court did not err in determining that defendant's underground water rights were forfeited and abandoned, except for the portion used for livestock purposes, because there was no direct evidence in the record that the water right was used for non-livestock purposes after the 1950s, and all or any part of a water right is subject to forfeiture when a person entitled to use of water fails to apply water to beneficial use for a period of four or more consecutive years.
State ex rel. State Engineer v. Romero
, 2020-NMCA-001, cert. granted.
The failure to file an application for extension of time
to place water to beneficial use prior to the expiration of the last extension granted does not automatically terminate water permits. Retroactive approval by the state engineer of applications for extension of time is permissible.
State ex rel. Reynolds v. Aamodt
, 1990-NMSC-099, 111 N.M. 4, 800 P.2d 1061.
Issue of pro tanto forfeiture was not properly before court,
as notice requirements of this section were not complied with; the only issues properly before court were existence of water right owned by defendants, and whether same had been lost by nonuse, forfeiture or abandonment.
State ex rel. Reynolds v. Mears
, 1974-NMSC-070, 86 N.M. 510, 525 P.2d 870.
Irrigation district.
— Length of time that irrigation district may hold right without putting water of that right to beneficial use is limited to four years, although, in discretion of state engineer, extensions of time may be granted beyond four-year period. 1964 Op. Att'y Gen. No. 64-01.
Law reviews.
— For comment, "Water Rights - Failure to Use - Forfeiture," see 6 Nat. Resources J. 127 (1966).
For note, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statute," see 29 Nat. Resources J. 223 (1989).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 78 Am. Jur. 2d Waters § 334.
93 C.J.S. Waters § 193.