Middle Rio Grande Regional Water Plan

Authority’s application sought to divert water, to which the Authority asserted no prior
appropriative right, which required a new appropriation. Moreover, the Authority affirmatively
asserted no beneficial use of the water. The Court remanded the matter to the NMOSE to issue a
corrected permit.
The Court’s decision included the following legal conclusions:
• A new non-consumptive use of surface water in a fully appropriated system requires a
new appropriation of water. A “non-consumptive use” is a type of water use where either
there is no diversion from a source body or there is no diminishment of the source.
Neither the New Mexico Constitution nor statutes governing the appropriation of water
distinguish between diversion of water for consumptive and non-consumptive uses.
Because both can be beneficial uses, New Mexico’s water law applies equally to either.
• The Authority did not need to file for a change in place or purpose of use for the
diversion of its San Juan-Chama Project water. The Court stated that the San Juan-
Chama Project water does not come from the Rio Grande Basin, and the Authority’s
entitlement to its beneficial use is not within the administrative scope of the Rio Grande
Basin. Accordingly, the Authority already had an appropriative right to that water and
did not need to file an application with the NMOSE for its use.
4.1.1.4 Impairment
Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, involved applications to
transfer surface water rights to groundwater points of diversion in the fully appropriated Rio
Grande stream system. In order for a transfer to be approved, an applicant must show, among
other factors, that the transfer will not impair existing water uses at the move-to location. In
Lomos Altos, several parties protested the NMOSE’s granting of the applications, arguing that
surface depletions at the move-to location caused by the applications should be considered per se
impairment of existing rights. The Court found that questions of impairment are factual and
cannot be decided as a matter of law, but must be determined on a case-by-case basis. In doing
so, the Court held that surface depletions in a fully appropriated stream system do not result in
per se impairment, but the Court noted that under some circumstances, even de minimis
depletions can lead to a finding of impairment. The Court further found that in order to
determine impairment, all existing water rights at the “move-to” location must be considered.
4.1.1.5 Rights Appurtenant to Water Rights
The New Mexico Supreme Court has issued three recent opinions dealing with appurtenancy.
Hydro Resources Corp. v. Gray, 2007-NMSC-061, 143 N.M. 142, involved a dispute over
ownership of water rights developed by a mining lessee in connection with certain mining claims
owned by the lessor. The Supreme Court held that under most circumstances, including mining,
water rights are not considered appurtenant to land under a lease. The sole exception to the
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