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SPONSOR: |
Marquardt |
DATE TYPED: |
02/17/03 |
HB |
600 |
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SHORT TITLE: |
Municipal Water Rights |
SB |
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ANALYST: |
Chabot |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
|
|
|
NFI |
|
|
|
|
(Parenthesis
( ) Indicate Expenditure Decreases)
LFC Files
Responses
Received From
Department
of Game and Fish (DGF)
Energy,
Minerals and Natural Resources Department (EMNRD)
New
Mexico Environment Department (OSE)
Office
of the State Engineer (OSE)
State
Land Office (SLO)
SUMMARY
Synopsis
of Bill
House Bill 600 amends
Section 72-5-23 NMSA 1978 to include a change of water use to municipal use as
provided in Section 72-5-24 NMSA 1978.
That statute is amended to allow a municipality to change the place or
purpose of use under five conditions:
1. The
change in use is submitted to the State Engineer for a determination of whether
the change will not impair existing water rights, be contrary to conservation
or be detrimental to the public welfare;
2. Publish
the request in the newspaper once a week for three consecutive weeks;
3. Protesters
to the change in use have to file a protest within 10 days following the last
advertisement in the newspaper;
4. If
the protester proves that the change in use impairs existing water rights, is
contrary to conservation or detrimental to public welfare, the State Engineer
shall modify the permit to address the objections; and
5. The
municipality shall comply with the conditions of the permit before it puts the
water to beneficial use.
Section 72-12-7 NMSA
1978 is amended to allow a municipality to change the location and purpose of
use by meeting the requirements of the amended Section 72-5-24 NMSA 1978.
A new section of
Chapter 72 NMSA is proposed that allows municipalities, within or without their
boundary to acquire, contract or condemn additional sources of water from
springs, wells, water rights, other water supplies and/or right of ways. They may also change the place of diversion
and acquire water rights from persons with vested water rights or through
condemnation at full compensation or satisfaction for all damages.
Significant
Issues
This is a very significant change to water
priorities; it allows municipalities to acquire water for their use and if
there are no willing sellers, obtain the rights through condemnation. Currently, the only method of obtaining the
water rights is through transfer of ownership authorized by the State Engineer.
OSE states the bill requires the State Engineer
to review a municipality’s permit request only if he intends to approve
it. This bill does not address or
provide a review process if the application is denied. As drafted, this bill would assure State
Engineer approval of every application for the transfer of water rights to a
municipality without either an opportunity for an administrative hearing or judicial
review.
NMED is concerned that the proposed Section 4.B
page 7, line 2 could be interpreted to allow dewatering of an entire system
causing concern for water quality and associated habitat.
EMNRD is concerned that the proposed statute
will shift the adjudicatory process of water right transfers in favor of
municipalities. This could impact state
parks by jeopardizing their water supply.
The agency states this statute will interfere with the adjudication
process and cause re-adjudications by giving municipalities undue preference.
SLO states some municipal wells are located on
substantial water resources on and under state trust lands, and this proposed
statute may affect SLO in the development and administration of these lands.
ADMINISTRATIVE IMPLICATIONS
OSE states the
proposed statute provides for publication after the State Engineer has approved
the permit; however, it is not clear whether the application or the permit
needs to be published.
CONFLICT, DUPLICATION, COMPANIONSHIP,
RELATIONSHIP
There is a possible
constitutional conflict with Article XVI, Section 2 that provides for priority
administration of water rights.
TECHNICAL ISSUES
OSE states the proposed Section 4 is unnecessary
as it is virtual identical to Section 3-27-2 NMSA 1978. Striking the section will prevent
conflicting statutory interpretations.
EMNRD states “this bill amends not only the
procedure for protests in connection with changes in place, purpose of use and
point of diversion of surface rights contained in Chapter 72, Article 5, but
also amends requirements in connection with ground water contained in Chapter
72, Article 12. The latter change is
made by HB600 by adopting by reference for the ground water article the changes
to be contained in the surface water article.
Generally, adopting legislation by reference presents legal issues.”
SLO points out that this proposed statute
conflicts with Section 3-18-10 NMSA 1978 which limit’s a municipality’s power
of eminent domain to its municipal boundary or, at most, to its platting and
planning jurisdiction.
OTHER SUBSTANTIVE ISSUES
OSE is concerned that
objections can be made after the permit is issued and then OSE must amend the
permit. This bill will likely create
greater difficulties for the State Engineer as he tries to modify the approval
to address numerous protests. Without a
hearing or judicial review, the State Engineer’s required action are “likely to
engender disregard for the application process.”
POSSIBLE QUESTION
1.
Is there a
constitutional conflict in requiring the State Engineer to approve an application
without public notice or due process for any water right owner to protest the
loss of the water right?
GAC/prr