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

SPONSOR Campos

ORIGINAL DATE

LAST UPDATED 2-10-06 HB

SHORT TITLE Engineer Evaluation of Ground Water Transfers

SJM 36

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the State Engineer – Interstate Stream Commission (OSE)

SUMMARY

Synopsis of Senate Joint Memorial

Senate Joint Memorial 36 requests the State Engineer, when evaluating applications to, export

ground water out of its basin of origin, to consider the availability of water supplies within the

basin to which water is being exported.

Specifically the memorial notes that:

•

certain governmental entities are considering or have considered policies to mine

and export ground water from closed basins, such as the Estancia basin, which are

often sole water supply sources for communities; and

•

the ground water resources of these basins are not renewable and will not be re-

plenished because they are being mined; and

•

the exportation of ground water from these basins has the potential to shorten their

productivity; and

•

the Estancia basin regional water plan provides that the exportation of ground wa-

ter is contrary to the greater interest of the planning area and that it must be ag-

Senate Joint Memorial 36 – Page

2

gressively discouraged and opposed; and

•

the ground water of the Estancia basin constitutes the sole potable water supply

upon which the communities in the basin depend; and

•

the local governments of Moriarty, Estancia, Mountainair, Edgewood and Tor-

rance county and local residents of the Estancia basin have joined together in op-

posing increased mining and exportation of ground water from the Estancia basin;

and

•

the boards of county commissioners of Torrance, Bernalillo and Santa Fe counties

have actively discouraged the exportation of any ground water from the Estancia

basin; and

•

during the hearings on the regional water plan and the Torrance county compre-

hensive ordinance, the Estancia basin public consistently voiced its opposition to

the exportation of water from the Estancia basin, fearing that exportation will both

impair the existing water rights and be detrimental to planning regions' public wel-

fare; and

•

the state engineer has administratively designated parts of the Estancia basin as a

critical management area, curbing both domestic use and other uses of water; and

•

there is uncertainty regarding the maximum amount of ground water that will be

placed to beneficial use in any given year within the Estancia basin, and all studies

conclude that current existing diversions from the aquifer exceed the rate at which

it is being recharged; and

•

the continued and future economic existence of the Estancia basin communities is

dependent on a reliable, if not entirely sustainable, water supply; and

•

some ground and surface water basins have access to reliable, renewable sustain-

able water supplies from renewable stream systems and have the ability to acquire

water rights within those systems and also have sufficient ground water resources

to sustain and their current and projected growth needs; and

•

the public welfare of the state is served by requiring other basins to develop the

available surface and ground water resources within their own basins rather than

mining the nonrenewable ground water resources in the rural Estancia basin and

depriving fellow New Mexicans, including ranchers, farmers and community gov-

ernments of a future.

The memorial further resolves that:

(1) the exportation of mined ground water from a closed ground water basin be con-

sistent with the public welfare of New Mexico and not contrary to the planning ob-

jectives in a regional water plan; and

(2) that any application to export water from a mined ground water basin be sup-

Senate Joint Memorial 36 – Page

3

ported by proof of a need in the importing basin to import ground water from a

mined basin and proof that there are no alternative available in-basin sources of wa-

ter to supply the region seeking to import ground water from the mined basin.

The memorial resolves that that a copy of this memorial be transmitted to the state engineer.

There is no appropriation attached to this legislation.

SIGNIFICANT ISSUES

The Office of the State Engineer – Interstate Stream Commission (OSE) notes that water rights

in New Mexico are individual property rights and therefore may be sold by the owner. While the

state engineer does not allow transfer of groundwater rights from one underground basin to an-

other, the water itself can be physically exported – if the exportation is done pursuant to a permit

issued by the state engineer and in accordance with rules and regulations of the state engineer

and state statutes. The state engineer regulates the use of water in the state – the place and pur-

pose of use, etc. - through the permit process. To change any element of a water right including

place of use (such as from one basin to another), the public must be given notice of the proposed

change in accordance with §72-12-3 NMSA 1978 and be afforded the right to file objections

with the state engineer regarding the proposed change on the bases of impairment, conservation

of water within the state, or public welfare. After the expiration of the time for filing objections,

if no objections have been filed, the state engineer shall, if he finds that proposed appropriation

would not impair existing water rights from the source, is not contrary to conservation of water

within the state, and is not detrimental to the public welfare of the state, grant the application and

issue a permit to the applicant to appropriate all or a part of the waters applied for, subject to the

rights of all prior appropriators from the source.

OSE further suggests that the memorial addresses the concept of “public welfare,” and discusses

public welfare in the evaluation of water rights applications only in regards to the source of the

water. It does not address public welfare in regards to the proposed place(s) of use of the water.

The water statutes use the term “public welfare” but do not provide a specific definition. For wa-

ter rights applications evaluations, the state engineer must consider the welfare of the people of

the entire state – not one area of the state versus another area of the state.

ADMINISTRATIVE IMPLICATIONS

OSE indicates that this joint memorial, if passed, contemplates that the State Engineer would

verify that the application to export water is supported by “proof” of a need in the basin to which

groundwater is to be imported for water from the basin from which the groundwater is to be ex-

ported. The applicant also would have to show “proof” that there are no alternative in-basin wa-

ter sources available. The memorial is not clear as to what is to be done if the proof is not ade-

quate or what type of proof is required.

OTHER SUBSTANTIVE ISSUES

OSE notes that this joint memorial addresses the concept of “public welfare”. The joint memo-

rial discusses public welfare in the evaluation of water rights applications only in regards to the

source of the water. It does not address public welfare in regards to the proposed place(s) of use

of the water. The water statutes use the term “public welfare” but do not provide a specific defi-

Senate Joint Memorial 36 – Page

4

nition. For water rights applications evaluations, the state engineer must consider the welfare of

the people of the entire state – not one area of the state versus another area of the state.

BW/mt