46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO WATER; AUTHORIZING THE GOVERNOR TO REQUEST FEDERAL COLLABORATION IN WATER RESOURCE PLANNING AND WATERSHED RESTORATION, PROTECTION AND MANAGEMENT PURSUANT TO FEDERAL AND STATE LAW; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. FINDINGS--DECLARATION OF EMERGENCY--GOVERNOR--ADDITIONAL DUTIES.--

A. The legislature finds that:

(1) New Mexico's watersheds located on federal lands currently contain excess junipers, conifers, salt cedar and other woody vegetation;

(2) 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;

(3) 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;

(4) the federal Water Resources Planning Act directs federal land management agencies to collaborate with the states, to assess adequacies of water supplies in each resource region of the country and to coordinate development and conservation of water and related land resources of the states;

(5) in the federal Watershed Protection and Flood Prevention Act, congress recognized that watershed damages have threatened the national welfare;

(6) the federal Organic Administration Act of 1897 found that "no national forest shall be established except to improve and protect the forest . . . or for the purpose of securing favorable conditions of waterflows", and the act further recognizes the preeminence of state water law;

(7) the federal Land Policy and Management Act and the National Environmental Policy Act direct adaptive management based on best available science and public input;

(8) the Treaty of Guadalupe Hidalgo directs the federal government to protect existing water rights in place at the time of the treaty;

(9) 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 is to preserve, protect and improve United States land and water resources and quality of the environment;
(10) 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;

(11) 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;

(12) 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;

(13) Section 4-36-11 NMSA 1978, enacted in 2001, acknowledges the deteriorating conditions of New Mexico's forests;

(14) the United States congress expressly provided in 16 USCA 475 that "[n]o 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";

(15) the United States supreme court, in United States v. New Mexico, 438 U.S. 696 (1978), stated "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";

(16) New Mexico has a legal entitlement to favorable conditions of waterflow from watersheds within the state;

(17) the excessive overgrowth on the watersheds located on federal lands is depriving the state of favorable conditions of waterflow in direct violation of the mandates of the United States congress and the rulings of the United States supreme court;

(18) 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 located in national forests; and

(19) pursuant to the Community Forest Restoration Act and the wildlands, wildfire urban interface program, the United States forest service is authorized to actively manage and fund New Mexico watershed restoration in compliance with the federal Land Policy and Management Act and the National Environmental Policy Act.

B. The legislature declares that:

(1) the deteriorating conditions of watersheds are due to excessive forest overgrowth, which 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;

(2) 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

(3) 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, garnering the public and private resources and services needed to mitigate and ultimately eliminate the state of emergency.

C. Pursuant to the provisions of state and federal law, the governor:

(1) shall request the United States forest service and the bureau of land management to reconcile their ten-year plans to the New Mexico state and regional water plans and county comprehensive plans every five years;

(2) shall cooperate with the United States secretaries of agriculture and the interior to achieve consistency between federal projects and plans and New Mexico water laws, policies and plans to restore and maintain water delivery from the watersheds; and

(3) shall request from the United States secretaries of agriculture and the interior any actions necessary for New Mexico to restore its watersheds to a condition of health, increase the waterflows and end the state of emergency created by the damage to New Mexico's watersheds, waterflows and total water supply.

D. If, within nine months of the effective date of this section, the United States secretaries of agriculture and the interior have not taken significant actions toward compliance with the request, the governor may, pursuant to Section 19-2-2 NMSA 1978, 7 U.S.C. 2268 and any other applicable law, request that jurisdiction over lands under their control be relinquished to the state and that the state assume primacy for enforcement and administration of federal provisions identified in Subsection A of this section.

E. If the governor requests transfer of limited jurisdiction over the federal lands, the request shall include an express provision that any acceptance by New Mexico of a transfer of the limited jurisdiction to restore watershed health on the federal lands shall be conditioned on:

(1) New Mexico receiving sufficient federal funds determined by New Mexico to be necessary to enable the state to perform the actions needed to mitigate or eliminate the state of emergency created by the federal government's impairment of New Mexico's watersheds, waterflows and aggregate water supplies; and

(2) the state receiving all revenues from the sale of material from the restoration of the watersheds.

F. If, within ninety days after the request made pursuant to Subsection D of 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, file 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.

G. Nothing in this section shall be construed to permit strip logging or clear-cutting of any old growth forest located in New Mexico.

Section 2. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.