Local Voices: ‘Use it or lose it’ – separating myth from reality in a time of drought
Anyone who is familiar with water rights in the Western states has probably heard the term or concept “Use It or Lose It.”
This term implies that if you do not use all the water that is allocated to you in your water rights, you will lose all or part of your rights.
While there is a specific section in the New Mexico Administrative Code (22.214.171.124 Forfeiture and Abandonment of a Water Right) related to when and how a water right may be lost, the processes required for anyone to lose a water right can be fairly complex.
The ultimate goal of the regulation is to protect water rights and also to ensure that this precious resource is used to the greatest benefit.
Several exemptions for periods of non-use are included in the regulation. For example, at §126.96.36.199 A. (1), it is provided that water rights aren’t subject to forfeiture when “despite the diligent effort on the part of the water right owner, circumstances beyond the control of the water right owner have prevented the application of water to beneficial use.”
Times of drought, such as we are currently experiencing, constitute circumstances beyond the control of the water rights owner.
According to the New Mexico Office of the State Engineer, “Cause for forfeiture or abandonment typically happens over multiple years.”
Residents and/ or water users should not be afraid of losing water rights for non-use during drought conditions. Furthermore, the act of applying water with no beneficial use is a misdemeanor.
Beneficial Use is a key term. Beneficial Use is evaluated using many criteria, including water rights records, aerial photography, irrigators information, irrigation districts and neighbors as well as soil and vegetation studies and information documenting lawful exemptions for non-beneficial use. Many uses including agricultural, commercial, industrial and recreational are considered beneficial.
No water right exists for uses of water not held to be beneficial or found to constitute waste of water. Watering a field of bare dirt or noxious weeds just to use water can not only constitute a waste of water, but can increase the fire danger as the fields then dry and become fuel.
It is also important to know if you do have water rights and which ditch is responsible for diverting the water you use. Having a ditch or river running through or near your property does not necessarily mean you have a right to use the water in it. A call to the local (Aztec; District V) office of the NM Office of the State Engineer can help you learn about your water rights.
Local resources are available to help water users navigate through times of drought. The local New Mexico State University Extension Office (NMSU) in San Juan County can help you identify the resource to best answer your questions.
For more information contact the NMSU Extension at 505-334-9496 or the NM State Engineer’s Office, 505-334-4571.
Susan Hakanson is the public relations manager for the San Juan County Executive Office.