1. A. An owner may lease to any person all or any part of the water use due the owner under the owner's water right, and the owner's water right shall not be affected by the lease of the use. The use to which the owner is entitled under the owner's right shall, during the exercise of the lease, be reduced by the amount of water so leased. Upon termination of the lease, the water use and location of use subject to the lease shall revert to the owner's original use and location of use.
2. B. The lease may be effective for immediate use of water or may be effective for future use of the water covered by the lease; however, the lease shall not be effective to cumulate water from year to year or to substantially enlarge the use of the water in such manner that it would injure other water users. The lease shall not toll any forfeiture of water rights for nonuse, and the owner shall not, by reason of the lease, escape the forfeiture for nonuse prescribed by law; provided, however, that the state engineer shall notify both the owner and the lessee of declaration of nonuser as provided in Sections 72-5-28 and 72-12-8 NMSA 1978. The initial or any renewal term of a lease of water use shall not exceed ten years, except as provided in Subsections C and D of this section.
3. C. A water use may be leased for forty years by municipalities, counties, state universities, special water users' associations, public utilities supplying water to municipalities or counties and member-owned community water systems as lessee and shall be entitled to the protection of the forty-year water use planning period as provided in Section 72-1-9 NMSA 1978.
4. D. A water use deriving from an acequia or community ditch organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, whether owned by a water right owner under the acequia or community ditch or by the acequia or community ditch, may be leased for a term not to exceed ten years; provided that pursuant to the rules or bylaws duly adopted by its members, an acequia or community ditch may require that any water use lease of a water right served by the acequia or community ditch, or any water use lease in which a water right is moved into and then served by the acequia or community ditch, shall be subject to approval by the commissioners of the acequia or community ditch in accordance with the procedures for approval of changes in point of diversion or place or purpose of use as provided in Subsection E of Section 73-2-21 NMSA 1978 and Sections 72-5-24.1 and 73-3-4.1 NMSA 1978.
5. E. A water use due under an adjudicated water right secured to a pueblo pursuant to the settlement agreements approved in Title 5 and Title 6 of the federal Claims Resolution Act of 2010, P.L. No. 111-291, Sections 501-626, or in the partial final judgments and decrees entered pursuant to those settlement agreements, may be leased for a term, including all renewals, not to exceed the term specifically authorized in that act; provided that this subsection shall not apply to any water use due under any state-law based water rights acquired by a pueblo or by the United States on behalf of a pueblo.

History: 1953 Comp., § 75-40-3, enacted by Laws 1967, ch. 100, § 3; 1999, ch. 40, § 1; 2003, ch. 369, § 2; 2014, ch. 45, § 2; 2014, ch. 48, § 2; 2019, ch. 121, § 1.

ANNOTATIONS

Cross references. — For the state engineer, see 72-2-1 NMSA 1978.

The 2019 amendment, effective April 2, 2019, provided that a lease of a water right served by an acequia or community ditch or any water use lease in which a water right is moved into and then served by the acequia or community ditch shall be subject to approval by the commissioners of the acequia or community ditch in accordance with the procedures for approval of changes in point of diversion or place or purpose of use; added new subsection designation "D." and redesignated former Subsection D as Subsection E; in Subsection D, after "not to exceed ten years", added "; provided that pursuant to the rules or bylaws duly adopted by its members, an acequia or community ditch may require that any water use lease of a water right served by the acequia or community ditch, or any water use lease in which a water right is moved into and then served by the acequia or community ditch, shall be subject to approval by the commissioners of the acequia or community ditch in accordance with the procedures for approval of changes in point of diversion or place or purpose of use as provided in Subsection E of Section 73-2-21 NMSA 1978 and Sections 72-5-24.1 and 73-3-4.1 NMSA 1978."

The 2014 amendment, effective May 21, 2014, provided for the lease of adjudicated water rights by pueblos; in Subsection B, in the third sentence, after "except as provided in", deleted "Subsection C" and added "Subsections C and D"; and added Subsection D.

The 2003 amendment, effective July 1, 2003, inserted "except as provided in Subsection C of this section" at the end of the last sentence in Subsection B; and inserted "special water users' associations" near the beginning of Subsection C.

The 1999 amendment, effective June 18, 1999, added the Subsection A and B designations; substituted "exercise" for "term" in the second sentence of Subsection A; updated statutory references in the next-to-last sentence of Subsection B; added Subsection C; and made minor stylistic changes.

State engineer is without statutory or regulatory authority to issue preliminary approvals of proposed leases of water rights. — The legislature has provided standards that the state engineer must follow when considering the approval of proposed leases of water rights and has provided a step by step process of the administrative procedures that a lease application is subject to, including the incorporation of procedural requirements to add public notice and specific timelines to the state engineer’s review of these applications, and therefore where the state engineer has approved temporary changes in water use leases on a "preliminary" basis prior to or without a hearing, this practice is without statutory authority. Moreover, state engineer regulations explicitly prohibit changes to point of diversion, place of use, or purpose of use prior to use by a lessee without the opportunity for objections to be considered in a hearing first. The law does not allow for the state engineer to circumvent procedures and protections clearly defined in statute, even if temporary in nature. 2023 Op. Att’y Gen. No. 23-01.

Law reviews. — For article,"Hip Deep: A Survey of State Instream Flow Law from the Rocky Mountains to the Pacific Ocean," see 43 Nat. Resources J. 1151 (2003).

For article, "Water Leasing: Evaluating Temporary Water Rights Transfers in New Mexico through Experimental Methods," see 49 Nat. Resources J. 707 (2009).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters § 247.

93 C.J.S. Waters § 224.