AN ACT
RELATING TO WATER; PROVIDING FOR
COMPLIANCE WITH AN ACEQUIA OR COMMUNITY DITCH REQUIREMENT FOR A CHANGE IN POINT
OF DIVERSION OR PLACE OR PURPOSE OF USE OF A WATER RIGHT.
BE IT ENACTED BY THE LEGISLATURE OF
THE STATE OF NEW MEXICO:
Section 1. A new section of Chapter 72, Article 5 NMSA
1978 is enacted to read:
"ACEQUIAS AND COMMUNITY
DITCHES--CHANGES IN POINT OF DIVERSION OR PLACE OR PURPOSE OF USE.--
A. The state engineer shall not approve an
application for a change, including an emergency change, in point of diversion
or place or purpose of use of a water right into or out of an acequia or
community ditch if the applicant has not complied with the applicable requirement
adopted by an acequia or community ditch pursuant to Subsection E of
Section 73-2-21 or Section 73-3-4.1
NMSA 1978.
B. The applicant for a change described in
Subsection A of this section shall submit with the application to the state
engineer documentary evidence provided by the commissioners of the acequia or
community ditch of the applicant's compliance with any applicable requirement
for the change adopted by the acequia or community ditch pursuant to Subsection
E of Section 73-2-21 or Section 73-3-4.1 NMSA 1978.
C. If an acequia or community ditch has not
adopted an applicable requirement, the applicant shall submit to the state
engineer along with the application an affidavit provided by the commissioners
of the acequia or community ditch stating this fact.
D. If an acequia fails to make a decision within
one hundred twenty days in response to an applicant's request for approval
pursuant to a applicable requirement, the acequia or community ditch shall be
deemed to have approved the applicant's request for approval and the state
engineer shall proceed on the application as if the applicant had complied with
any applicable acequia or community ditch requirement. The applicant's request shall be in writing
and delivered by certified mail to the commissioners of the acequia or
community ditch.
E. The provisions of this section do not apply
to water rights or lands owned by or reserved for an Indian pueblo."
Section 2. Section 73-2-21 NMSA 1978 (being Laws 1895,
Chapter 1, Section 4, as amended) is amended to read:
"73-2-21. COMMISSIONERS' POWERS AND DUTIES--MAYORDOMO'S
DUTIES.--
A. The commissioners shall:
(1) assess fatigue work or tasks of all parties
owning water rights in such community ditches or acequias;
(2) have power to contract and be contracted
with;
(3) make all necessary assessments to provide
funds for the payment of the salary of the mayordomo and other legitimate
expenses incident to the proper conduct and maintenance of the acequias under
their charge;
(4) make contracts for obtaining water for
irrigation purposes in connection with their ditches, such contracts to be
ratified by a vote of a majority of the owners of water rights in the ditches;
(5) have general charge and control of all
affairs pertaining to the same, together with the power to receive money in
lieu of such fatigue or task work at a price to be fixed by them; and
(6) immediately upon taking office, provide
bylaws, rules and regulations not in conflict with the laws of the state for
the government of the ditch or acequia, a printed copy of which shall be
furnished to each owner of a water right in such ditch.
B. The mayordomo or superintendent shall, under
the direction of the commissioners, be the executive officer of the ditch and
shall:
(1) have the superintendence of all work thereon,
the distribution of the waters thereof and the collection of fines, if any, and
of amounts to be paid in lieu of fatigue or task work;
(2) perform such other duties in connection with
the ditch as may be prescribed by the rules and regulations of the same or as
may be directed by the commissioners; and
(3) make full written reports of all money
received, expended and how expended, and of all activities performed as such
officer to the commissioners of the ditch, semiannually, on the first Monday in
June and the last Monday in September; provided, further, that the mayordomo
shall make such further reports as may be required by the ditch commissioners.
C. The treasurer of the ditch commissioners shall
make reports to the ditch commissioners of the money received, expended and how
expended, and kept in the custody of the treasurer, and of all activities
performed as such officer as are herein required of the mayordomo.
D. The commissioners shall receive and pass upon
the reports of the mayordomo and the treasurer provided for in this section
before their term of office expires. If
the reports are found to be true and correct, they shall approve them;
otherwise they shall reject them, respectively.
All proceedings of the commissioners relating to all subjects whatsoever
shall be reduced to writing in a book or books kept for that purpose, and all
books and papers so kept by the commissioners and all reports made, filed or
kept as herein required shall always be and remain public property, and shall
be subject to the inspection of all persons therein concerned.
E. Pursuant to the rules or bylaws duly adopted
by its members, an acequia or community ditch may require that a change in
point of diversion or place or purpose of use of a water right served by the
acequia or community ditch, or a change in a water right so that it is moved
into and then served by the acequia or community ditch, shall be subject to
approval by the commissioners of the acequia or community ditch. The change may be denied only if the
commissioners determine that it would be detrimental to the acequia or
community ditch or its members. The
commissioners shall render a written decision explaining the reasons for the
decision. If the person proposing the
change or a member of the acequia or community ditch is aggrieved by the
decision of the commissioners, he may appeal the decision in the district court
of the county in which the acequia or community ditch is located within thirty
days of the date of the decision. The
court may set aside, reverse or remand the decision if it determines that the
commissioners acted fraudulently, arbitrarily or capriciously, or that they did
not act in accordance with law."
Section 3. A new Section 73-3-4.1 NMSA 1978 is enacted
to read:
"73-3-4.1. COMMISSIONERS--ADDITIONAL DUTIES--APPROVAL OF
CHANGES IN PLACE OR PURPOSE OF USE OF WATER--APPEALS.--Pursuant to rules or bylaws
duly adopted by its members, an acequia or community ditch may require that a
change in the point of diversion or place or purpose of use of a water right
served by the acequia or community ditch, or a change in a water right so that
it is moved into and then served by the acequia or community ditch shall be
subject to the approval by the commissioners.
The change may be denied only if the commissioners determine that it
would be detrimental to the acequia or community ditch or its members. The commissioners shall render a written
decision explaining the reasons for the decision. If the person proposing the change or a
member of the acequia or community ditch is aggrieved by the decision of the
commissioners, he may appeal the decision in the district court of the county
in which the acequia or community ditch is located within thirty days of the
date of the decision. The court may set
aside, reverse or remand the decision if it determines that the commissioners
acted fraudulently, arbitrarily or capriciously or that they did not act in
accordance with law."
Section 4. EFFECTIVE DATE.--The effective date of the
provisions of this act is March 1, 2004.
HB
303
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