A water right may be lost for nonuse in two ways. First, the right may be forfeited pursuant to Section 72-5-28 NMSA or Section 72-12-8 NMSA. Alternatively, the right may be abandoned. Abandonment is a judicial doctrine.

1. A. Forfeiture: All or any part of a water right is subject to forfeiture when a person entitled to the use of water fails to apply water to beneficial use for a period of four or more consecutive years. If the state engineer determines that a water right is subject to forfeiture, the water right owner will be sent a notice and declaration of nonuse by certified mail. If failure to apply water to its associated beneficial use persists for one year after receipt of notice and declaration of nonuse given by the state engineer the water right will be forfeited and the unused water shall revert to the public. The requirement for an issuance of a notice and declaration of nonuse by the state engineer shall not apply to water that has reverted to the public by operation of law prior to June 1, 1965 (see Sections 72-5-28 and 72-12-8 NMSA). Periods of non-use for the following reasons shall not be applied towards the four or more consecutive year period required for a water right to be subject to forfeiture:

   (1) 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.

   (2) The state engineer has granted an extension of time in which to apply water to beneficial use.

   (3) The water is part of a state engineer approved water development plan (see 19.26.2.19 NMAC).

   (4) The water right owner is on active duty in the armed forces of the United States of America.

   (5) The water right is acquired and placed in a state engineer approved water conservation program.

   (6) The water right is appurtenant to irrigated farm lands which have been placed under the acreage reserve or conservation reserve program provided by the Food Security Act of 1985, P.L. 99-108.

2. B. Abandonment: Common law abandonment of a water right requires both the nonuse of water by a person entitled to such use and the intent to abandon the right. Whether or not a court would determine that a water right has been abandoned depends on the facts and circumstances in each particular case. The intent to abandon the right may be express or may be inferred from the acts of the water right owner. In making such determination, the state engineer is not adjudicating a right, but merely making a threshold administrative determination of the validity and existence of the underlying water right. Nonuse for an unreasonable period of time establishes a presumption of abandonment and prima facie evidence of the intention to abandon the right. To rebut a presumption of abandonment a person must establish not merely their expressions of desire or hope or intent, but some fact or condition excusing the period of nonuse.

[19.26.2.20 NMAC - N, 1/31/2005]