46th legislature - STATE OF NEW MEXICO - first session, 2003
RELATING TO THE NATIONAL FORESTS; DECLARING A STATE OF EMERGENCY WITHIN THE NATIONAL FORESTS OF NEW MEXICO; REQUIRING THE GOVERNOR AND THE ATTORNEY GENERAL TO TAKE CERTAIN ACTIONS TO ELIMINATE THE EMERGENCY; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. FINDINGS--DECLARATION OF EMERGENCY--GOVERNOR-- ATTORNEY GENERAL--ADDITIONAL DUTIES.--
A. The legislature finds that:
(1) in 16 U.S.C. §§ 1001, the Watershed Protection and Flood Prevention Act, the United States congress found that "erosion, floodwater and sediment damages in the watersheds of U.S. rivers and streams cause loss of life and damage to property, threatening the national welfare. The sense of Congress is that the federal government should cooperate with states and political subdivisions, soil and water conservation districts, flood prevention or control districts, and other local public agencies to: prevent this damage; further the conservation, development, use and disposal of water; further the conservation and use of land"; the goal being to preserve, protect and improve United States land and water resources and quality of the environment;
(2) a state of emergency exists in New Mexico due to a shortage, and ever diminishing total supply, of water available to its citizens, communities, livestock, wildlife and wildlife habitats;
(3) New Mexico communities that have been seriously threatened or impacted by a shortage of available water within the last calendar year include Albuquerque, Santa Fe, Las Vegas, Farmington, Bloomfield, Aztec, Rio Rancho, Bernalillo, Edgewood, Alamogordo, Ruidoso, Roswell and Carrizozo;
(4) New Mexico waterways that have experienced a significant depletion of available water include the Rio Grande and the Pecos, Gila and Animas rivers, as well as the streams and tributaries that contribute water to those rivers;
(5) New Mexico livestock and wildlife that are now or are likely to be directly or indirectly seriously imperiled by a shortage of available water include cattle, sheep, elk, deer, antelope, black bears, spotted owls, shiners, trout and silvery minnows;
(6) because of the state of emergency, it is imperative that New Mexico promptly take actions necessary to restore and increase the total supply of water available within the state;
(7) the state's total supply of water is significantly dependent upon watersheds located on forested lands. To achieve an increase in the total supply of water in New Mexico, it is imperative for the state to take all necessary actions that may be available to remedy the current deteriorated conditions of these watersheds;
(8) Section 4-36-11 NMSA 1978, enacted in 2001, acknowledges the deteriorating conditions of New Mexico's forests;
(9) the United States congress expressly provided in 16 USCA 475 that "No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of waterflows" and reaffirmed this directive in the Multiple-Use Sustained-Yield Act of 1960 when it provided that the national forests "shall be administered for watershed purposes";
(10) the United States supreme court, in United States v. New Mexico, 438 U.S. 696 (1978), stated that "Congress has evidenced its continuing concern with enhancing the water supply for non-forest use by specifically authorizing the president to set aside and protect national forest lands needed as sources of municipal water supplies". In that same case, the supreme court also stated that it was the belief of congress that "the states had exclusive control of the distribution of water on public lands and reservations";
(11) New Mexico's watersheds located on federal lands currently contain at least one billion excess junipers and conifers, each of which consumes at least ten gallons of water each day, which results in, at a minimum, ten billion gallons of water consumed every day;
(12) the continued existence of the overgrowth serves no legitimate federal or state purpose and poses a present unreasonable risk to the lives and property of New Mexico citizens;
(13) the failure to remove the excess tree overgrowth from New Mexico's watersheds prevents downstream flow to New Mexico in violation of the state's legal entitlement to the diverted waters under both state and federal law;
(14) New Mexico has a legal entitlement to the waterflows that are or may be derived from watersheds within the state;
(15) the excessive overgrowth on the watersheds is depriving the state of its legal entitlement to water, in direct violation of the mandates of the United States congress and the rulings of the United States supreme court; and
(16) to abate the diversion of New Mexico's water, to increase the total supply of water available in New Mexico in the future and to remedy the state of emergency, New Mexico should affirm and assert the supremacy of its right to the ownership and use of the water that is currently being diverted to supply the demands of forest overgrowth on New Mexico's watersheds.
B. The legislature declares that:
(1) a state of emergency exists due to a shortage of available water, caused in significant part by the deteriorating conditions of the state's watersheds;
(2) the deteriorating conditions are due to excessive forest overgrowth that is diverting New Mexico's waterflows and depleting New Mexico's total supply of water available to its citizens, communities, livestock, wildlife and wildlife habitats;
(3) the continued existence of the state of emergency poses a direct threat to the health, safety, well-being and economic viability of New Mexico's citizens and to the continued health and viability of its communities, livestock, wildlife and wildlife habitats; and
(4) it is imperative that New Mexico take such actions as may be necessary and appropriate to mitigate or eliminate the deteriorating conditions of the state's watersheds, including:
(a) obtaining a transfer to the state of such limited jurisdiction over federal lands as may be necessary to enable the state to restore the watersheds to a condition of health and to maximize waterflows within New Mexico; and
(b) upon the transfer of the limited jurisdiction, garner the public and private resources and services needed to mitigate and ultimately eliminate the state of emergency.
C. The governor, pursuant to the provisions of state or federal law:
(1) shall cooperate with the United States secretaries of agriculture and the interior to achieve consistency between New Mexico water laws, policies and plans to restore and maintain water delivery from the watersheds; and
(2) if, by October 1, 2003, the governor finds that the United States secretaries of agriculture and the interior are not cooperating with the state to achieve that consistency, the governor shall request, pursuant to Section 19-2-2 NMSA 1978 and 7 USCA 2268, from the United States secretaries of agriculture and the interior the transfer of such limited jurisdiction over relevant federal lands as may be necessary for New Mexico to restore its watersheds to a condition of health and thereby increase the waterflows that may be derived from the watersheds. The request to the United States secretaries of agriculture and the interior for the transfer of the limited jurisdiction shall include an express provision that an acceptance of the limited jurisdiction by New Mexico is conditioned on New Mexico's receipt of sufficient federal funds determined by New Mexico to be necessary to enable the state to perform the actions needed to eliminate the state of emergency created by the federal government's impairment of New Mexico's watersheds, waterflows and total water supply.
D. If, within ninety days after the request made pursuant to this section, the United States secretaries of agriculture and the interior have not taken significant actions toward compliance with the request, the attorney general shall prepare and pursue a lawsuit on behalf of New Mexico to:
(1) obtain a judicial declaration of New Mexico's right to the waterflows originating from watersheds located on national forest lands;
(2) obtain a judicial declaration of the impairment of the state's rights to waterflows originating on federal lands as a foreseeable consequence of excessive vegetative growth; and
(3) compel the United States secretaries of agriculture and the interior to take such actions as may be determined by the court to be necessary to eliminate the state of emergency.
Section 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.