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

SPONSOR Gardner

ORIGINAL DATE

LAST UPDATED

2-17-07

HB 853

SHORT TITLE Changes to Adjudicated Water Rights

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the State Engineer (OSE)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of Bill

House Bill 853 seeks to amend NMSA 1978, § 72-4-19 (1907), the statute that provides for the

adjudication of water rights by court decree. This bill would add a sentence which reads, “The

elements of a water right that is declared and adjudicated shall not be altered or modified except

as provided by statute or by order of the court."

There is no appropriation attached to this legislation.

SIGNIFICANT ISSUES

AGO indicates that it is unclear what this amendment would accomplish since it describes the

law as it currently exists under § 72-4-19. Under existing law, the only way that the elements of

an adjudicated water right can be altered or modified is by application to the state engineer,

pursuant to statute, and the state engineer’s decision is subject to review by the courts. Because

the proposed language does not alter existing law, it is unclear why the amendment is deemed

necessary or desirable.

House Bill 853 – Page

2

OSE notes that, as drafted, this amendment to § 72-4-19 is a simple restatement of the law as it

currently exists. The state engineer is unaware of any reason such an amendment is needed or

desirable. If the intent of the sponsor is to change some aspect of water law, whether statutory or

common law, it is not evident from the bill. Further, that the only existing procedure for

transferring or changing any element of an adjudicated water right as set forth in a final decree is

by application to the state engineer whose decision is subject to review by the courts. During the

course of an adjudication, including inter se, water rights elements are subject to being altered or

modified prior to the courts’ final decree.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Both OSE and AGO agree that there will be no consequences, as whether this bill is enacted or

not, the courts’ ability to decree and adjudicate water rights and the statutory authority of the

state engineer to administer and act on applications to transfer water rights and modify or alter

only those elements related to amending purpose and place of use, or point of diversion (but not

priority date or source and the amount of water) of adjudicated water rights in accordance with

the constitutional requirement of beneficial use will remain unchanged.

BFW/csd