HOUSE BILL 289
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Mimi Stewart
AN ACT
RELATING TO WATER; IMPOSING WATER RESOURCE FEES FOR THE DIVERSION OR WITHDRAWAL OF PUBLIC WATERS OF THE STATE; RECONCILING AMENDMENTS TO SECTION 72-4A-5 NMSA 1978 (BEING LAWS 2001, CHAPTER 164, SECTION 5, AS AMENDED BY LAWS 2003, CHAPTER 139, SECTION 3 AND BY LAWS 2003, CHAPTER 365, SECTION 1); MAKING AN APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 8 of this act may be cited as the "Water Resource Fee Act".
Section 2. [NEW MATERIAL] DEFINITIONS.--As used in the Water Resource Fee Act:
A. "acequia association" means an association of landowners along a community ditch or acequia that is recognized under Chapter 73, Article 2 NMSA 1978 and not otherwise subject to assessments by any irrigation, conservancy or artesian conservancy district organized pursuant to Chapter 73, Article 1, 9, 10 or 14 NMSA 1978;
B. "domestic well" means a well permitted pursuant to Section 72-12-1.1 NMSA 1978;
C. "person" means any individual or legal entity; and
D. "public water supply system" means a system that supplies water to the public and that has at least fifteen service connections or regularly services an average of twenty-five individuals at least sixty days per year.
Section 3. [NEW MATERIAL] WATER RESOURCE FEES--IMPOSITION--EXCEPTIONS.--
A. In order to exercise the right to use the public waters of the state, the following water resource fees are imposed on the following persons who divert or withdraw the public waters of the state:
(1) irrigation districts, conservancy districts and artesian conservancy districts organized pursuant to Chapter 73, Article 1, 9, 10 or 14 of NMSA 1978, two dollars ($2.00) per acre-foot per year paid annually;
(2) persons other than an acequia association supplying water for agricultural uses for which the fees imposed by this subsection have not otherwise been imposed, two dollars ($2.00) per acre-foot per year paid annually;
(3) persons operating a public water supply system, twenty-five dollars ($25.00) per acre-foot per year paid annually;
(4) persons supplying water for a commercial, industrial, mining or utility concern and for which the fees imposed by this subsection have not otherwise been imposed or paid, twenty-five dollars ($25.00) per acre-foot per year paid annually; and
(5) persons owning a domestic well, a fixed annual fee of twenty-five dollars ($25.00) per well paid annually.
B. With the exception of domestic wells that are assessed a fixed annual fee, the water resource fee shall be based on the actual diversion or withdrawal of water if measured by a metering system approved by the state engineer; otherwise, fees shall be based on the amount of the permitted, declared or adjudicated water right.
C. The following water users and uses are exempt from water resource fees imposed by the Water Resource Fee Act:
(1) water diverted or withdrawn by the interstate stream commission, state parks division of the energy, minerals and natural resources department and the department of game and fish for public use or benefit;
(2) water diverted or withdrawn for agricultural use by a member of an acequia association on the member's land;
(3) water diverted or withdrawn from a livestock well permitted pursuant to Section 72-12-1.2 NMSA 1978 for livestock watering; and
(4) water diverted or withdrawn by an Indian nation, tribe or pueblo on tribal or pueblo lands.
Section 4. [NEW MATERIAL] PAYMENT OF WATER RESOURCE FEE--EVIDENCE OF WATER RIGHT.--Payment of fees imposed by the Water Resource Fee Act neither confirms nor is evidence of any right to appropriate the public waters of the state.
Section 5. [NEW MATERIAL] DOMESTIC WELL WATER RESOURCE FEE--COLLECTION.--
A. The county assessor shall collect the water resource fee imposed by the Water Resource Fee Act on domestic well owners. The annual fee shall be assessed with the property tax bill for the property on which the domestic well is located. The county assessor shall remit the water resource fee collected to the taxation and revenue department within thirty days of receipt.
B. The state engineer shall provide the county assessor of each county with the addresses of the owners and locations of domestic wells within the county.
Section 6. [NEW MATERIAL] OTHER WATER RESOURCE FEES--COLLECTION--INFORMATION.--
A. The taxation and revenue department shall provide by regulation for the manner and form of collection of the water resource fees imposed by the Water Resource Fee Act.
B. The taxation and revenue department shall provide the state engineer with an annual report on the amount of fees collected for each type of user specified in the Water Resource Fee Act.
C. The state engineer, interstate stream commission, department of environment and public regulation commission shall provide the taxation and revenue department with the information and records necessary to assess the fees imposed by the Water Resource Fee Act other than the fee imposed on domestic well owners.
Section 7. [NEW MATERIAL] WATER RESOURCE FEES--DISPOSITION.--Money distributed to the state engineer pursuant to the Water Resource Fee Act is appropriated to the state engineer for research related to water conservation, active water rights administration, water rights adjudications, updating and maintaining the state engineer's WATERS database and providing information to the counties and the taxation and revenue department necessary for the collection of fees imposed by the Water Resource Fee Act.
Section 8. [NEW MATERIAL] WATER RESOURCE FEES--DISPOSITION.--Money distributed to the interstate stream commission pursuant to the Water Resource Fee Act is appropriated to the commission to administer the New Mexico irrigation works construction fund and to manage water rights acquired by state agencies for public use and benefit, including compliance with interstate compact requirements, recreation purposes, stream ecosystem restoration and the enhancement of fish and wildlife populations and habitat. Section 9. A new section of the Tax Administration Act is enacted to read:
"[NEW MATERIAL] ADMINISTRATIVE FEE IMPOSED.--The department shall withhold an administrative fee of five percent of the receipts collected pursuant to the Water Resource Fee Act."
Section 10. A new section of the Tax Administration Act is enacted to read:
"[NEW MATERIAL] DISTRIBUTIONS--WATER RESOURCE FEES.--Distributions pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the following agencies and funds in the specified amounts from the receipts attributable to the water resource fees less any administrative fee withheld by the department:
A. to the office of the state engineer, eight percent of receipts;
B. to the interstate stream commission, two percent of receipts;
C. to the water project fund, sixty percent of receipts; and
D. to the New Mexico irrigation works construction fund, thirty percent of receipts."
Section 11. Section 7-1-2 NMSA 1978 (being Laws 1965, Chapter 248, Section 2, as amended) is amended to read:
"7-1-2. APPLICABILITY.--The Tax Administration Act applies to and governs:
A. the administration and enforcement of the following taxes or tax acts as they now exist or may hereafter be amended:
(1) Income Tax Act;
(2) Withholding Tax Act;
(3) Venture Capital Investment Act;
(4) Gross Receipts and Compensating Tax Act and any state gross receipts tax;
(5) Liquor Excise Tax Act;
(6) Local Liquor Excise Tax Act;
(7) any municipal local option gross receipts tax;
(8) any county local option gross receipts tax;
(9) Special Fuels Supplier Tax Act;
(10) Gasoline Tax Act;
(11) petroleum products loading fee, which fee shall be considered a tax for the purpose of the Tax Administration Act;
(12) Alternative Fuel Tax Act;
(13) Cigarette Tax Act;
(14) Estate Tax Act;
(15) Railroad Car Company Tax Act;
(16) Investment Credit Act, Capital Equipment Tax Credit Act, rural job tax credit, Laboratory Partnership with Small Business Tax Credit Act and Technology Jobs Tax Credit Act;
(17) Corporate Income and Franchise Tax Act;
(18) Uniform Division of Income for Tax Purposes Act;
(19) Multistate Tax Compact;
(20) Tobacco Products Tax Act; and
(21) the telecommunications relay service surcharge imposed by Section 63-9F-11 NMSA 1978, which surcharge shall be considered a tax for the purposes of the Tax Administration Act;
B. the administration and enforcement of the following taxes, surtaxes, advanced payments or tax acts as they now exist or may hereafter be amended:
(1) Resources Excise Tax Act;
(2) Severance Tax Act;
(3) any severance surtax;
(4) Oil and Gas Severance Tax Act;
(5) Oil and Gas Conservation Tax Act;
(6) Oil and Gas Emergency School Tax Act;
(7) Oil and Gas Ad Valorem Production Tax Act;
(8) Natural Gas Processors Tax Act;
(9) Oil and Gas Production Equipment Ad Valorem Tax Act;
(10) Copper Production Ad Valorem Tax Act;
(11) any advance payment required to be made by any act specified in this subsection, which advance payment shall be considered a tax for the purposes of the Tax Administration Act;
(12) Enhanced Oil Recovery Act;
(13) Natural Gas and Crude Oil Production Incentive Act; and
(14) intergovernmental production tax credit and intergovernmental production equipment tax credit;
C. the administration and enforcement of the following taxes, surcharges, fees or acts as they now exist or may hereafter be amended:
(1) Weight Distance Tax Act;
(2) the workers' compensation fee authorized by Section 52-5-19 NMSA 1978, which fee shall be considered a tax for purposes of the Tax Administration Act;
(3) Uniform Unclaimed Property Act;
(4) 911 emergency surcharge and the network and database surcharge, which surcharges shall be considered taxes for purposes of the Tax Administration Act;
(5) the solid waste assessment fee authorized by the Solid Waste Act, which fee shall be considered a tax for purposes of the Tax Administration Act;
(6) the water conservation fee imposed by Section 74-1-13 NMSA 1978, which fee shall be considered a tax for the purposes of the Tax Administration Act; [and]
(7) the gaming tax imposed pursuant to the Gaming Control Act; and
(8) the water resource fees imposed pursuant to the Water Resource Fee Act, which fees shall be considered a tax for the purposes of the Tax Administration Act; and
D. the administration and enforcement of all other laws, with respect to which the department is charged with responsibilities pursuant to the Tax Administration Act, but only to the extent that the other laws do not conflict with the Tax Administration Act."
Section 12. Section 72-4A-5 NMSA 1978 (being Laws 2001, Chapter 164, Section 5, as amended by Laws 2003, Chapter 139, Section 3 and by Laws 2003, Chapter 365, Section 1) is amended to read:
"72-4A-5. BOARD--DUTIES.--The board shall:
A. adopt rules governing terms and conditions of grants or loans recommended by the board for appropriation by the legislature from the water project fund, giving priority to projects [that have urgent needs, that have been identified for implementation of] identified as being urgent to meet the needs of a regional water planning area that has had a completed regional water plan [that is] accepted by the interstate stream commission and that have matching contributions from federal or local funding sources and that have obtained all requisite state and federal permits and authorizations necessary to initiate the project;
B. authorize qualifying water projects to the authority that are for:
(1) storage, conveyance or delivery of water to end users;
(2) implementation of federal Endangered Species Act of 1973 collaborative programs;
(3) restoration and management of watersheds;
(4) flood prevention; [or]
(5) state acquisition or lease of water rights from voluntary sellers or lessors for public use and benefit, including compliance with interstate compacts, recreation purposes, stream ecosystem restoration and the enhancement of fish and wildlife populations and habitat; or
[(5) water] (6) conservation, recycling, treatment or reuse of water as provided by law; and
C. create a drought strike team to coordinate responses to emergency water shortages caused by drought conditions."
Section 13. Section 72-4A-9 NMSA 1978 (being Laws 2001, Chapter 164, Section 9) is amended to read:
"72-4A-9. WATER PROJECT FUND--CREATED--PURPOSE.--
A. The "water project fund" is created in the New Mexico finance authority and shall consist of distributions made to the fund from the water trust fund and payments of principal of and interest on loans for approved water projects. The fund shall also consist of any other money appropriated, distributed or otherwise allocated to the fund for the purpose of supporting water projects pursuant to provisions of the Water Project Finance Act. The fund shall be administered by the authority. Income from investment of the water project fund shall be credited to the fund. Balances in the fund at the end of any fiscal year shall not revert to the general fund. The water project fund may consist of such sub-accounts as the authority deems necessary to carry out the purposes of the fund. The authority may establish procedures and adopt rules as required to administer the fund and to recover from the fund costs of administering the fund and originating grants and loans.
B. Money in the water project fund may be used to make loans or grants to qualified entities for any project approved by the legislature.
C. The authority is authorized to issue revenue bonds payable from the proceeds of loan repayments made into the water project fund upon a determination by the authority that issuance of the bonds is necessary to replenish the principal balance of the fund. The net proceeds from the sale of the bonds shall be deposited in the water project fund. The bonds shall be authorized and issued by the authority in accordance with the provisions of the New Mexico Finance Authority Act.
D. Fifty percent of the amount distributed to the water project fund pursuant to the Water Resource Fee Act shall be used only for water conservation projects benefiting public water systems that pay water resource fees. All other amounts distributed to the fund pursuant to that act shall be expended for water conservation projects, restoration and management of watersheds and the acquisition or lease from voluntary sellers or lessors of water rights for public use and benefit, including compliance with interstate compacts, recreation purposes, stream ecosystem restoration and the enhancement of fish and wildlife populations and habitat."
Section 14. Section 72-14-23 NMSA 1978 (being Laws 1955, Chapter 266, Section 15, as amended) is amended to read:
"72-14-23. NEW MEXICO IRRIGATION WORKS CONSTRUCTION FUND CREATED--LIMITATION OF LIABILITY UNDER ACT--REPARATION OF DAMAGES CAUSED IN CARRYING OUT POWERS GRANTED--AUTHORITY OF COMMISSION TO RECEIVE CONTRIBUTIONS.--
A. There is [(hereby)] created a fund to be known as the "New Mexico irrigation works construction fund", which shall consist of the income creditable to the permanent reservoirs for irrigation purposes income fund not otherwise pledged under Section [75-34-19 New Mexico Statutes Annotated, 1953 Compilation, (being Laws 1955, chapter 266, section 11)] 72-14-19 NMSA 1978 and all other [moneys which] money that may be appropriated by the [state] legislature to [said] the construction fund. [Such] The fund shall be a continuing fund and shall not revert to the general fund [of the state] or to any other fund [of the state at the end of any biennium].
B. The cost of investigations and construction as authorized in Section [75-34-11 New Mexico Statutes Annotated, 1953 Compilation (being Laws 1955, Chapter 266, Section 3)] 72-14-11 NMSA 1978 shall be paid from [said] the New Mexico irrigation works construction fund and also the cost of all preliminary work on any project, and all expenses directly chargeable to such project, prior to the receipt of the proceeds of bonds, shall be paid from the construction fund. The amount of all such expenses on account of any project [or projects] and such part of the general administrative expenses of the commission and the cost of investigation [or investigations] as shall be properly chargeable, in the opinion of the commission, to such project [or projects] shall be reimbursed to the construction fund upon the receipt of the proceeds of bonds issued for such project [or projects]. No liability or obligation shall be incurred under the provisions of Sections [75-34-9 to 75-34-27 New Mexico Statutes, 1953 Compilation (being Laws 1955, Chapter 266, Sections 1 to 19)] 72-14-9 through 72-14-28 NMSA 1978 beyond the extent to which the money [shall have] has been provided under the authority of [this act] those sections. All public and private property damaged or destroyed in carrying out the powers granted under [this act] those sections shall be restored or repaired and placed in [their] its original condition, as nearly as practicable, or adequate compensation made therefor out of funds provided by [this act] those sections.
C. The commission shall also have authority to pay the cost of such investigations and construction on any project from [said] the New Mexico irrigation works construction fund when contracts in form satisfactory to it [shall] have been entered into whereby title to works [shall] have been mortgaged, deeded, assigned or transferred by the owner [thereof] to the commission, and a program for reimbursement of all amounts expended, together with operation and maintenance charges, [shall] have been agreed upon. Provided that no construction contract shall be entered into without the prior approval of the state board of finance. The commission shall also have authority to receive and accept appropriations and contributions from any source of either money or property or other things of value to be held, used and applied for the purposes [in this act] provided in Sections 72-14-9 through 72-14-28 NMSA 1978.
D. Money distributed to the New Mexico irrigation works construction fund pursuant to the Water Resource Fee Act shall be expended for water conservation projects, including the metering and monitoring of water withdrawals and diversions that benefit persons diverting or withdrawing water for agricultural uses or districts supplying water to irrigators who have paid fees imposed by that act."
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