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

SPONSOR Larranaga

ORIGINAL DATE

LAST UPDATED

2/7/2007

3/6/2007 HB 680/aHENRC

SHORT TITLE Transportation Commission Water Notices

SB

ANALYST Schuss

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the State Engineer (OSE)

NM Department of Transportation (NMDOT)

SUMMARY

Synopsis of HENRC Amendment

The amendment proposed by the House Energy and Natural Resources Committee adds a

qualification regarding a water right to be changed that is owned or served by an acequia or

community ditch. This addition states that:

“…will not be detrimental to the other holders of valid water rights; provided, however,

that if the water right to be changed is owned or served by an acequia or community ditch

organized pursuant to Chapter 73, Article 2 or 3 NMSA 1978, the applicant shall also comply

with any applicable requirement adopted by the acequia or community ditch pursuant to

Subsection E of Section 73-2-21 NMSA 1978 or Section 73-3-4.1 NMSA 1978".

OSE has included the following in their analysis of the amendment:

The amendment adds language to the effect that acequias or community ditches organized

pursuant to Chapter 73, Article 2 or 3, NMSA 1978 have the right to adopt by-laws for

approval or denial changes in a point of diversion or place or purpose of use of a water right

served by the acequia or community ditch. The change may be denied only if the

House Bill 680/aHENRC– Page

2

commissioners determine that it would be detrimental to the acequia or community ditch or

its members. This approval / denial right is provided under Articles 73-2-21(E) and 73-3-4.1,

NMSA 1978. If an applicant is aggrieved by the decision of the acequia commissioners, he

may appeal the decision to district court.

Synopsis of Original Bill

House Bill 680 exempts the State Transportation Commission and its contractors from the

requirement of publication and hearing for water rights applications to temporarily change the

location of use, method of use or point of diversion of water rights for projects involving the

construction, reconstruction, maintenance or repair of public roads, streets, highways and

airports – when, in the opinion of the state engineer, the temporary change will not be

detrimental to existing, valid water rights.

SIGNIFICANT ISSUES

NMDOT states that the provisions of HB 680 include limiting the use of water for temporary

changes to two years. This could potentially cause NMDOT problems on road projects in the

instances when the timelines for those projects exceed the two year period.

HB 680 also eliminates that ability to obtain temporary two year permits for advance

withdrawals of water which could also negatively affect NMDOT’s projects.

ADMINISTRATIVE IMPLICATIONS

OSE states that they will continue to evaluate these types of water rights applications (temporary

uses for road construction) for impairment, public welfare, and conservation of water even

though the applications will not be subject to publication of notice and hearing. The state

engineer will approve temporary changes for road construction projects - if there is no

impairment to existing, valid water rights and if it is in the public welfare of the state.

Passage of this bill will result in an expedited process for evaluating and acting on temporary

changes of water rights in support of New Mexico road construction projects. Passage of this

bill will also result in fewer cases going to hearing – the resources of the office of the state

engineer will be able to better address more significant water rights changes and will be able to

act on all types of water rights applications in a more efficient manner.

DUPLICATION

Duplicates SB 900

OTHER SUBSTANTIVE ISSUES

OSE notes the following issues:

This bill will allow temporary use of water for construction, maintenance and repair of

the state’s highway and road system in a timely manner. Contractors are responsible for

obtaining water for their projects but cannot begin the formal part of this process (water rights

application process) until they are awarded a contract. The present process requires

House Bill 680/aHENRC– Page

3

advertisement of a notice in local newspapers once per week for three consecutive weeks and

allows a period for receipt of protests after the last date of publication. Occasionally, there are

protests to the application, which must be settled in a formal hearing procedure prior to use of the

water. This process is time consuming and often delays the construction project.

Many highway construction projects within the state are in sparsely populated, rural areas

with no easy access to sources of water for construction purposes – such as concrete batching,

hotmix batching, dust control, compaction, etc. Present statutes allow for use of 3.0 acre-feet per

annum under a temporary permit but 3.0 acre-feet is usually not enough. The amount authorized

for use in construction, maintenance or repair of the state’s roads and streets should be increased

to more nearly provide for the needs of the construction industry. This amount of water is not

likely to impair existing water rights over the long term and will allow for more timely and

efficient road construction contracts. The state engineer will evaluate all applications for

impairment, for conservation of water and for public welfare considerations

.

BS/sb:csd