Water Rights … and Water Wrongs

While the rules about them are extremely complicated, “water rights” are simply your permission slip from the State to use water, if you can find it (often a big “if”).  Water rights are often called “paper water.”  Separate and distinct from paper water are collections of dihydrogen oxide molecules (H2O).  Such collections are affectionately known as “wet water.”  All too often, people conflate paper water and wet water. The results can be seriously misleading or worse. 

Wet water can be neither created nor destroyed (with very minor exceptions).  But it can change form, from solid (ice melting) to liquid to gas (evaporating), and back.  Most water users deal with the liquid form.  It comes to us as precipitation, where the gaseous form of water condenses into liquid or solid form as rain or snow.  And then it migrates:  coalesces into streams/rivers, seeps into the ground, and/or evaporates back into gas.  We obtain wet water for use by diverting it from streams/rivers (“surface water”) or by pumping it out of the ground where seepage has accumulated either recently or over millennia (“groundwater”).  In some places, pressure drives groundwater naturally to the surface as springs, where it becomes surface water.

Paper water (permission slips) has four attributes.  They are (1) a maximum quantity of water;  (2) a location or point of diversion from the stream/river/well;  (3) a purpose and place of use; and  (4) a priority date when water was first put to beneficial use in that place.  When there is insufficient wet water in the stream/river for all of the water rights holders, New Mexico law allocates the limited water among permission holders.  It says that the oldest priority date user (“most senior”) gets all of his/her water; the next oldest can draw up to his/her limit from what’s left over, and so on down the priority date chain until the entire stream/river is used up, regardless of their location along the stream/river.  In that “strict priority administration” regime, the recent date water permission holders (“junior users”) may get no water at all.  New Mexico law also allows an exception for permission holders on a stream/river system to enter into shortage-sharing agreements with a different plan of allocation (“alternative administration”).  New Mexico law also allows permission slips to be bought, sold, leased, and/or moved, subject to State approval, except for domestic wells.

Water permission procedures were established long ago when almost all water use was surface water.  In the mid-20th century, use of groundwater started becoming substantial.  The state created a new form of paper water called “permits.”  These were permissions to pump limited quantities of groundwater from a specific well for a particular purpose.  Recognizing that substantial groundwater pumping would place a drain on the river stream systems, the state required groundwater permittees to purchase offsetting surface water rights, presumably maintaining the overall quantity of demand on water in the stream/river system at pre-groundwater historical levels.  There are no similar constraints to preserve available groundwater.  Anticipating minimal groundwater impacts, New Mexico law also provides an exception where domestic and livestock wells routinely are permitted without offsetting water rights.  There are now 160,000 or more domestic wells, according to the Office of the State Engineer.  

Paper and wet water have different availabilities.  Between permits and water rights, New Mexico has developed far more permissions for use than there is – or ever was – wet water. New Mexico has no shortage of paper water (water rights or permits).  However, wet water is another story.  Surface wet water flows are highly variable, seasonally, annually, and across decades.  For example, tree ring studies have shown that the last two decades of the 20th century were the wettest in 2000 years.  The first two decades of the 21st century are among the driest.  Climate studies project that New Mexico is facing another 25% reduction in surface water flows over the next 50 years (due to increased evaporation from higher temperatures).  Groundwater studies (and dry wells) have shown that in many places within New Mexico, groundwater supplies accreted over thousands of years are dwindling toward extinction.  Now and in the future, there are and will be serious water shortages across New Mexico.

Action is needed.  Among other considerations, the state’s economic well-being depends upon a reliable wet water supply for individuals and businesses.  Paper water cannot quench these thirsts.  Strict priority administration cannot meet these dependencies either.  For example, the cities have mostly junior water rights, but also the most New Mexicans.  We must collaboratively develop shortage-sharing agreements that will equitably serve as alternative administration regimes for those times of significantly reduced supply of wet water lest our water and economic security suffer. 

Opportunity presents itself.  The 2023 Water Security Planning Act provides a medium for regional and community water planning.  It encourages individuals and stakeholders to collaboratively design and prioritize actions to equitably adapt to much less water, thereby optimizing the communities’, the regions’, and the State’s future economic well-being within the water availability.

Bob Wessely has worked with and led the Water Assembly, now Water Advocates, for twenty-five years. Partnering with the Middle Rio Grande Council of Governments, the Assembly coordinated the planning process that resulted in the 2004 MRG Regional Water Plan.

In Bob’s previous 30-year career, he co-founded and served as Technical Director of SciSo, Inc., an Albuquerque software system engineering and management consulting firm supporting diverse industries nationwide. Although Bob holds a PhD in Theoretical, Solid-State Physics, at heart he is a systems engineer who enjoys finding solutions for problems important to NM and its communities, especially water.


  1. Cheryl Hadtings on December 7, 2023 at 7:47 am

    Thank you Bob for breaking down a complex field into understandable parts.
    Cheryl Hastings
    Datil, NM

  2. Bill Turner on December 7, 2023 at 9:59 am

    Thank you too Bob for your dedication.

  3. Bill Turner on December 7, 2023 at 10:28 am

    The foregoing article entitled Water Rights and Water Wrongs is essentially correct but it casts our present system of allocating water to beneficial users in somewhat of a pejorative framework. The use of the word “perit”, for example, is to be interpreted as a dirty word. It is of the same level of importance in realty law as a deed or evidence of ownership. No more and no less. The issuance of permits is sometimes an arduous task undertaken by our Office of the State Engineer. The OSE does this with skill, care, technical competence, and fairness. They are carrying on with the same process that agents of Spanish sovereigns did when petitioned for water by settlers in this land. Even the ancient Romans had a similar system with hydrofilakases for the Praetor (See: Sextus Julius Frontinus, 95, The Water System of Ancient Rome). It is an ancient, practical and equitable system. To be clear our water law grants a property right in water that is captured and placed to beneficial use. The Permit is the Deed. When water is captured, it changes from real to personal property. Unlike many other states New Mexico has long recognized the hydraulic connection of groundwater and surface water and has administered both as a single resource. New Mexico and the U.S. Geological Survey have carried out many studies on water availability and developed tools to manage the water resources. It is simply not true that there are water or will be water shortages across the state. This is inflammatory and does not reflect truthful information. It is true that growth of our population and our economy is placing greater demand upon avalable water supplies in some parts of the state However, water is a marketable commodity, and the growing demand has been met with the voluntary sale of water rights to meet the demand. At present there is far more water available to purchase than the demand. In some instances, past state engineers and federal agencies have very badly managed our resources and poor laws and regulations have led to bad decisions. Arguably in some cases the OSE has recognized water rights that should never have been recognized. They have collectively committed fraud many decades ago which has been condoned by both State and Federal Courts and we are still suffering from the consequences. These must be rectified. In today’s day and age modern technology and instant communications are a powerful weapon against the abuse of our water allocation systems. The State Engineer staff are good, hard-working people. The agency needs more financing to do the good work they are capable of rather than new institutions. Several years ago, the City of Albuquerque stopped purchasing water rights because their planning did not see any shortages for at least 40 years. The sky is not falling in.

  4. Ladona K. Clayton on December 7, 2023 at 2:00 pm

    Excellent article, Bob! Very informative and on point. Thank you, especially, for enhancing our understanding of “wet” versus “paper” water and the inevitable depletion of finite groundwater resources from aquifers like the Ogallala. In Portales alone, the demand for “wet” water has exceeded available supply placing this city in a Stage 3 Emergency for water restrictions since June 2023. Paper water rights would say there is sufficient water available. Actual “wet” water does not support that assertion. In the area we are targeting for our project in Clovis, NM, irrigation farmers will confirm that what they have been appropriated in regards to paper water rights far exceeds “wet” water availability. As the saying goes, you can’t get blood out of a turnip.

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