water rights

For a lot of properties, somebody else owns the water rights.  Yesterday I learned that a lot of times this is because when the state was formed, somebody was there before the state and there was concern that the state was gonna take stuff away.  So the water rights pre-date the state and the state is set up respecting those rights.

So I have two points to explore:

1)  Somebody owns the rights.  Therefore it seems possible that you can buy those rights back.

2)  Assuming that the owner of the water rights is down stream, you would think that that person would favor any methods you might have of holding that water back in the winter and releasing it in the summer.

paul wheaton wrote:
For a lot of properties, somebody else owns the water rights.  Yesterday I learned that a lot of times this is because when the state was formed, somebody was there before the state and there was concern that the state was gonna take stuff away.  So the water rights pre-date the state and the state is set up respecting those rights.

So I have two points to explore:

1)  Somebody owns the rights.  Therefore it seems possible that you can buy those rights back.

2)  Assuming that the owner of the water rights is down stream, you would think that that person would favor any methods you might have of holding that water back in the winter and releasing it in the summer.

The first point it seems like you should other rights like mineral rights are bought and sold all the time.

I think on the second point you can take all you need from upstream as long as you release as much as those down steam would normally get if the river or stream was unobstructed.

Here is a wiki thing on Riparian water rights This explains it better than I can.

Water Rights vary from State to State.
  In Colorado for instance you were not allowed to even collect rain water or snow melt for use. Recently I understand that they have loosened up that restrictive portion through legislation, but there are still limitations.
The Western states are far more restrictive than the Eastern states.
If I have a stream running through my property in Oregon I can not divert for use any of that water that I do not have water right ownership of, even in the riparian zone.
Purchasing water rights from one who has first claim is not as easy as it sounds at least in our area.
Eastern states many are governed by the riparian description, but definitely not the way it is in the Western states.

In general, western states - and I believe Montana is one - use the prior appropriation doctrine to determine who has the right to use stream water - the people with the oldest rights can satisfy their entire claim, and if the available water is all allotted before the less senior folks can claim any, well that's just the way it is. Many western streams are over-appropriated - there are more existing water rights than there is water, even in a good year.

Also, in most western states, a water right is a right of use. If a senior user is not making good, efficient use of his/her claim, a junior user can contest the amount of a senior right, and get it reduced. The extra water then becomes available to the junior right holders, in order of seniority.

A water right is often not a property right that can be bought and sold like, for instance, a mineral right. Usually, in the west, the water right stays with the land.

A surprising number of western ranchers will readily state that water that reaches the ocean is wasted. Screw the fish and the fishermen, in other words.

This general picture is confused by the existence of water districts/projects, which will have different internal rules, and by instream water rights, which a number of western states now allow for. Typically, the state government or a private entity will gain control of a senior water right, and then that amount of water must stay in the stream. Even if you, the junior water right holder, are watching your pastures turn crisp, you must let that water run by your irrigation gates.

If you live in any of the western states and are buying rural land, you are well-advised to talk to the local water master - and there will be one. The fact that you have property on a permanent stream or on an irrigation canal does not necessarily mean that you can count on using any of that water (although there is such a thing as de minimis use, which means watering the lawn). You *must* understand your situation, or you can get in big trouble. Don't take the realtor's or the seller's word for it, either.

Also, western states have started grappling with the issue of ground water as well. I don't know whether any states have yet started demanding proof of ground water availability before allowing well drilling, but in some areas, folks who already have wells that they depend on are getting pretty worried about how many new wells are being drilled.

jacqueg wrote:
Also, western states have started grappling with the issue of ground water as well. I don't know whether any states have yet started demanding proof of ground water availability before allowing well drilling, but in some areas, folks who already have wells that they depend on are getting pretty worried about how many new wells are being drilled.

Some counties in New Mexico have instituted rules that if you try to do a lot split or add additional households you have to establish that there is 100 years worth of groundwater under the land (within the property boundaries) that is directly accessible by the well that is already installed.  I have done a few of these assessments, and often it is not possible to achieve this number. 

Also in New Mexico, if you buy land and get a permit to drill a well for residential use, you are essentially granted permission to appropriate a certain amount of water (typically 0.5 to 1.0 acre-feet/year).  This is not a water right that you own - even though a lot of people think they own a water right.  The NM Supreme Court recently ruled that the state cannot grant these permissions without assessing how it might affect people who actually own transferable water rights.  So it is definitely getting tighter here. 

When you start talking surface water rights around here you are talking laws adopted from Spain, and compacts and treaties signed with Texas and Mexico.  OMG that gets convoluted... 

Ardilla,
    You forgot to mention about the "fun" working with NM's State engineers or the bias that can come when talking about Senior water users rights(prior to NM's statehood) on what would become "Federal" surface water areas(Gila river is the one I have in mind-not the only one by any means).

NM water rights whether they be for irrigation channels (under a major domo) or on some of the overly taxed aquifers around the state are a mixed bag of Spanish laws and the handiwork of politicians that came afterwords. You are quite right about that. Convoluted! (

    A development company near Edgewood did run into the 100 year law-which many of us were thrilled about. Unfortunately, they have figured out by buying up the water rights of nearby farmers and under various "companies" they could garner enough water rights on paper to pull off their development. That is under review now.

Here in Torrance county, before our current county manager, there was little to stop new developments from going in. State water law was ignored.There are numerous empty homes here now with dry wells in those "old boy" developments. Often water rights as "stated" in closing papers were never recorded or mis-stated in the state engineer's office. That and the "new" owners were conned(or didn't bother to do their research) that water rights were/are separate from title on land. 

You are right Pat.

Water use restrictions effectively curb water use for the little guy but do little to curb the massive water use of monied interests.  It follow's the corollary of "Wilson's Law":

"Water and rocks move down hill (except to money)"

A few times a year I get calls from people who want help to sell water rights they have on paper but not in reality.  Several states have beneficial use provisions where you may have 10 acre-feet/year on paper but if you only use 2 acre-feet/year to water your fields and supply your home/business that is all you really have legally.  It is safe to say that people generally think they "own" more water rights than they really have.  They only find this out when they try to sell them.

I'm glad these water rights issues are only a small part of my job...  If I had to do more of it, I would find a different line of work.

Hi Ardilla,
    That's why I work so hard to create the sponge on my land. It makes more sense to bank your water then hope the government is going to protect us from those vested interests, especially when often times they are the vested interest! (
   
Think that is your thinking also with what you're working on your land.