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F I S C A L I M P A C T R E P O R T

SPONSOR SCONC

DATE TYPED 3/9/05 HB

SHORT TITLE Prosecution For Various Misuses Of Water SB 102/SCONCS/aSJC/aHAGC

ANALYST Aguilar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

Minimal

Minimal Recurring

Varies

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

SUMMARY

Synopsis of HAGC Amendment

The House Agriculture and Water Resources Committee amendment to Senate Conservation

Committee Substitute for Senate bill 102 as amended provides for application for injunctive re-

lief to be made in the county where a violation has occurred and removes language exempting

the applicant from posting a bond.

The amendment makes technical corrections to language and keeps monetary fines for failure to

prosecute by mayordomo’s at existing levels.

Synopsis of SJC Amendment

The Senate Judiciary Amendment to Senate Conservation Committee substitute for SB 102 pro-

vides that the easement created by this bill shall be adequate to allow for reasonable mainte-

nance, use and improvements of the ditch.

This amendment changes the provision requiring a magistrate court to issue a warrant for an in-

dividual upon whom a complaint has been made, making the warrant issue optional.

Senate Bill 102/SCONCS/aSJC/aHAGC -- Page 2

Synopsis of Original Bill

Section 73-2-5 NMSA 1978 provides that if there has been continuous use of a ditch for the pur-

poses of irrigation for a period of five years it will be presumed that an easement has been cre-

ated by such.

Senate Bill 102 makes it unlawful to interfere with the easement noted or to prevent access to the

ditch and states such action is a misdemeanor crime punishable by a fine of not less than $300

dollars and not more than $1,000 dollars and/or ninety (90) day imprisonment in the county jail.

SB 102 also provides that in addition to criminal prosecution, the district attorney, mayordomo,

or the commission of the ditch or acequia may file a civil complaint for a civil penalty not to ex-

ceed $5,000 dollars and/or may also file for damages.

SB 102 provides for a misdemeanor offense and establishes penalties for any person who vio-

lates an order of the mayordomo in charge of a ditch; or to interfere with any community ditch or

dam; or to take or use water without having a water right.

SB 102 also provides that in addition to criminal prosecution, the district attorney, mayordomo,

or commission of the ditch may file a civil complaint for a civil penalty not to exceed $5,000 and

includes the owner of the dominant estate as a party permitted to also file for injunctive relief.

The bill further clarifies that the filing of either a criminal complaint or civil complaint will not

prevent the complaining party from seeking damages.

Significant Issues

Under current statute, only the acequia mayordomo may prosecute violations. SB 102 would

authorize the district attorney or an acequia commission to prosecute violations as well.

This bill provides for criminal complaints to be filed in the county where violations occur and

also provides for applications to the district court of the county where a defendant resides for a

prohibitory or mandatory injunctions.

FISCAL IMPLICATIONS

The provisions contained in this bill may generate small revenues to the various courts and

acequias.

PA/sb:lg:njw