SENATE MEMORIAL 17

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

David M. Gallegos

A MEMORIAL

REQUESTING THE STATE ENGINEER TO ESTABLISH OR OTHERWISE DEFINE THE TYPE OF FACTS AND PUBLIC POLICY THAT WILL DETERMINE WHETHER GRANTING AN APPLICATION FOR A NEW APPROPRIATION OF WATER WILL BE DETRIMENTAL TO THE PUBLIC WELFARE OF THE STATE.

     WHEREAS, many cities, towns and unincorporated communities rely on ground water aquifers as their sole source of potable water to provide for the public health and safety of their residents, including the provision of safe drinking water that is essential for domestic consumption, sanitation, fire and police protection, medical services and veterinary services; and

     WHEREAS, all sole source aquifers in New Mexico are mined because diversions exceed their recharge, and the water supply is finite; and

     WHEREAS, the state engineer supervises the mining of all sole source aquifers; and

     WHEREAS, almost uniformly, cities, towns and communities relying on sole source aquifers are constrained geographically and by the cost of engineering necessary to access alternative water supplies; and

     WHEREAS, the state engineer has a policy of granting new appropriations from sole source mined aquifers or portions of such aquifers based on the preservation of the water supply sufficient to sustain existing water rights for forty years, but not beyond forty years; and

     WHEREAS, granting new appropriations that deplete a sole source aquifer's fully appropriated water supply reduces the conserved forty-year water supply to the detriment of prior appropriators and impairs their prior rights to the water supply intended to be conserved by the state engineer; and

     WHEREAS, additionally, decisions to grant new depletions to a water supply that the state engineer has determined to be fully appropriated by the prior appropriators, including cities, towns and communities, are conscious decisions to deplete the water supply more quickly; and

     WHEREAS, the statutory requirement that a new appropriation of water be determined to "not be detrimental to the public welfare" was added to the Water Code in 1985; and

     WHEREAS, if dewatering sole source aquifers without regard to the public that will be left without water is not detrimental to the public welfare of the state, then it is time for the state engineer to clearly define the term "not detrimental to the public welfare"; and

     WHEREAS, state engineer staff are not informed of, educated on, trained in or provided written directives for determining whether an application for a new appropriation will be detrimental to the public welfare of the state if granted; and

     WHEREAS, applicants and protestants are left to their imaginations as to what is relevant to the state engineer in the determination of whether the granting of an application will be detrimental to the public welfare of the state; and

     WHEREAS, after thirty-five years, the time has come and the legislature hereby requests that the state engineer, in finding that granting a new appropriation is not detrimental to the public welfare, provide a specific rationale as required by the law; and

     WHEREAS, in doing so, the meaning of the term "not detrimental to the public welfare of the state" will develop and be understood by the state engineer and staff, applicants, protestants and the courts;

     NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that the state engineer be requested to establish or otherwise define the type of facts and public policy that will determine whether granting an application for a new appropriation will be detrimental to the public welfare of the state; and

     BE IT FURTHER RESOLVED that the state engineer be requested to not accept for filing applications for new appropriations that will result in new depletions to aquifers, or portions thereof, determined by the state engineer to have a forty-year or less supply of water to sustain existing prior appropriators until such time as the state engineer has established or otherwise defined the term "detrimental to the public welfare"; and

     BE IT FURTHER RESOLVED that the state engineer be requested to stay action on all pending applications for new appropriations that will result in new depletions to aquifers, or portions thereof, determined by the state engineer to have a forty-year or less supply of water to sustain existing prior appropriators until such time as the state engineer has established or otherwise defined the term "detrimental to the public welfare"; and

     BE IT FURTHER RESOLVED that the state engineer be requested to stay action on all pending applications for new appropriations that will result in new depletions to aquifers, or portions thereof, determined by the state engineer to have a forty-year or less supply of water to sustain existing prior appropriators docketed by the state engineer's hearing unit until such time as the state engineer has established the criteria that the state engineer considers in order to determine whether the granting of an application will be "detrimental to the public welfare", unless the state engineer explicitly sets forth findings of fact and policies for the basis for the state engineer's determination as to whether the application will not be "detrimental to the public welfare of the state" if granted; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the governor and the state engineer.

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