NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

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SOURCES OF INFORMATION

LFC Files

New Mexico Acequia Association (NMAA)

Office of the State Engineer (SEO)

SUMMARY

     Synopsis of the HJC Amendment

This amendment changes section B to read as follows:

B. The water rights of an acequia or community ditch association or the lands and property owned by the acequia or association shall not be lost by the acequia or community ditch association by prescription or adverse possession. Water rights owned by an acequia or community ditch association shall not be lost for nonuse of waters, except for water rights reverted to the public pursuant to Section 72-5-28 NMSA 1978 prior to July 1, 2001.

Synopsis of Bill

This bill amends NM 1978 Section 73-2-22.1 for the purpose of allowing acequias or community ditch associations to acquire and hold property and water rights. These water rights are not subject to forfeiture for non use after July 1, 2001.

Significant Issues

NMAA states that the purpose of the bill is to grant the same status to acequias and ditch associations that exist for other public entities and political subdivisions in matters of water rights ownership, forfeiture and abandonment. Acequias are political subdivisions of the state (NMSA 1978 Section 73-2-28) and want the same forfeiture provisions that exist for conservancy districts. The applicable statue for conservancy districts states water rights "shall not be lost...for non use of the water." (NMSA 1978 Section 73-17-21).

SEO states that the proposed exemption for acequia owned water rights from the requirements of beneficial use is not provided to other political subdivisions of the state (e.g., municipalities, counties, and state universities). These entities are allowed to acquire and hold, unused, water rights for a period not to exceed forty years to allow planning for reasonable development and use (NMSA 1978 Section 72-1-9). They further state that the proposed unlimited exemption may conflict with the equal protection clause of the United States and New Mexico Constitutions because it does not apply to all political subdivisions. Lastly, they point out that acequias and community ditches may already protect water rights from forfeiture by placing the water rights in SEO approved water conservation programs (NMSA 1978 Section 72-5-28(G). This provides that once water rights are included an approved program that they will not be computed as part of the four-year forfeiture period.

Lastly, this statute only applies to acequia or community ditch association owned water rights. It does not include water rights of individuals who are members of an acequia or community ditch association.

DUPLICATION

This bill duplicates SB 639/aSCONC.

OTHER SUBSTANTIVE ISSUES

SEO states "Passage of this bill into law could fundamentally alter the nature of water law and the administration of water rights in New Mexico." However, they do not specify how or why this will occur.

POSSIBLE QUESTIONS

1. How will this bill fundamentally alter the nature of water law and the administration of water rights in New Mexico?

2. Is the non-forfeiture provision of this bill needed if the water rights can be protected through a SEO approved conservation plan?

GAC/njw