NOTE: As provided in LFC policy, this report is
intended only for use by the standing finance committees of the
legislature. The Legislative Finance Committee does not assume
responsibility for the accuracy of the information in this report when used for
other purposes.
The most recent FIR
version (in HTML & Adobe PDF formats) is available on the Legislative
Website. The Adobe PDF version includes
all attachments, whereas the HTML version does not. Previously issued FIRs and attachments may be obtained from the
LFC in Suite 101 of the State Capitol Building North.
SPONSOR: |
HAGC |
DATE TYPED: |
3/06/03 |
HB |
|
||
SHORT TITLE: |
Acequias and Community Ditch Requirements |
SB |
123/HAGCS |
||||
|
ANALYST: |
Chabot |
|||||
APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
||
FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
NFI |
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
Duplicates HB 303/HJCS
LFC Files
Responses
Received From
Office
of the State Engineer (OSE)
SUMMARY
Synopsis
of Bill
House Agriculture and
Water Resources Committee Substitute for Senate Bill 123 is a duplicate of HB
303 which passed the house (60-8) and enacts a new section of Chapter 72,
Article 5 NMSA 1978 requiring the State Engineer not to approve an application
for a 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 commissioners have not
approved the change by determining that approval would be detrimental to the
acequia or community ditch.
It outlines steps an
applicant must take in processing an application, and provides that if the
acequia or community ditch commissioners have not issued a denial within 120
days, the request would be deemed approved.
It also exempts the new section from applying to water rights or lands
owned by or reserved for an Indian pueblo.
The bill makes
editorial changes to Section 73-2-21 NMSA 1978 that establishes the powers and
duties of acequia and community ditch commissioners and adds a new subsection E
which establishes the authority to approve requests for changes in point of
diversion, or place and purpose of use of the members. The request may only denied if it would be
detrimental to the acequia or community ditch.
The commissioners must provide a written decision which maybe appealed
to the district court within 30 days.
The court may set aside, reverse or remand the decision if it determines
that the commissioners acted fraudulently, arbitrarily or capriciously, or not
in accordance with law.
A new Section 73-3-4.1
NMSA 1978 is enacted to give acequia and community ditch commissioners the
authority to approval or deny requests pursuant to rules or bylaws duly adopted
by its members.
The effective date for
provisions of the bill is March 1, 2004.
Significant
Issues
OSE discusses six
issues with the substitute bill:
Although similar to the
language of the existing statutory standards, this proposed new requirement is
different. When compared to the
“detriment to existing water rights” standard in the current law, this new
requirement would allow the ditch to consider the concerns of a new entity, the
ditch itself, including non-hydrologic concerns such as the financial and
organizational viability of the ditch.
Such concerns would not be considered in the analysis of hydrologic
impairment to other existing water rights that is typically performed by the
State Engineer. The concerns of the
ditch and its members would be considered under current law in the State
Engineer’s consideration of the potential impact on public welfare of a proposed
water right transfer, but such specific and localized concerns would be a part
of the overall public welfare analysis, which considers a host of other factors
and evaluates the impact on the public welfare of the State as a whole, not
just a specific entity or local community.
ADMINISTRATIVE IMPLICATIONS
The State Engineer would have to augment the review process for water right transfer applications to include a step to determine whether an applicant seeking to transfer a water right into or out of an acequia has complied with any applicable requirements imposed by the acequia for such a transfer.
TECHNICAL ISSUES
Section 1E exempts the section Indian
Pueblos. To be consistent with other
bills this session, it should be changed to read: “Indian Nation, Tribe or Pueblo.”
POSSIBLE QUESTIONS
GAC/njw:yr