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

SPONSOR Wirth

ORIGINAL DATE

LAST UPDATED

2-20-07

2-24-07 HB 1234

SHORT TITLE Water Management Plans for Certain Entities

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB1118

SOURCES OF INFORMATION

LFC Files

Responses Received From

American Planning Association (APA)

Office of the State Engineer (OSE)

Office of the Attorney General (OAG)

1

Department of Agriculture (NMDA)

New Mexico Municipal League (NMML)

New Mexico Higher Education Department (NMHED)

SUMMARY

Synopsis of Bill

House Bill 1234 seeks to require certain local governmental entities to submit water management

plans if these entities hold unused water rights to meet future demand. These water management

plans would provide the state with sufficient information to determine whether such entities are

holding water in excess of the amount necessary to meet their reasonable needs within 40 years.

Existing law prohibits these entities from holding such excess water.

1

The OAG analysis bears the caveat: “This analysis is neither a formal Attorney General’s Opinion nor an Attorney

General’s Advisory Opinion letter. This is a staff analysis in response to the agency’s, committee’s or legislator’s

request."

House Bill 1234 – Page

2

There is no appropriation attached to this legislation.

FISCAL IMPLICATIONS

OAG notes that although the legislation does not contain any appropriations. Nonetheless, the

local governmental entities that would be required to prepare water management plans pursuant

to HB1234 will incur additional expenses if HB1234 is enacted. In addition, the State Engineer,

who is required to review and approve these plans, will incur additional administrative expenses.

SIGNIFICANT ISSUES

This FIR has been updated to reflect the comments of the Office of the State Engineer (OSE) and

the American Planning Association (APA).

APA advises that the legislation simply outlines specific criteria that must be included in the

water development plan. Additionally, the water development plan would need to be updated

every three years, be approved by the appropriate governing body and be made available to the

public. Further, that proposed criteria to be included in the water development plan include:

•

An assessment of (1) existing water demand, including surface water

diversions and groundwater depletions by category of use; (2) existing

water supply, including point of diversion, purpose of use, place of use

and priority of the rights; and (3) future water demands and needs for the

forty-year planning period;

•

A description of proposed management alternatives for balancing water

demand and supply over the forty-year planning period; and

•

An evaluation of the consistency of the water development plan with the

regional water plan.

APA indicates that while there is no appropriation attached to this legislation, cities, counties and

other entities are already required to prepare water development plans and the State Engineer is

already charged with reviewing these plans. However, realistically, there should be funding

earmarked for such planning to assist smaller communities and entities charged with preparing

such plans. APA indicates a potential language correction to the bill which changes the word

“management" to “development" throughout, so the names of the planning document are

consistent.

APA concludes that the current statute requires modification because it does not:

•

Outline useful and specific criteria which must be included in the plan,

meaning these plans lack consistency. This bill would allow these plans

to become more useful, effective planning documents. Additionally,

given a lack of existing criteria set forth by the State Engineer to

determine whether there is a “reasonable need," this will create a

practical way for the State Engineer to enforce this restriction;

House Bill 1234 – Page

3

•

Require that these plans be adopted by the appropriate governing body,

so that they can be more useful as on-the-ground planning documents

used to drive local decisions; and

•

Require that these plans be made public.

Further, that the effects of the legislation include: promoting long-term, local water planning;

creating consistency and usefulness in planning documents; and developing a plan whereby New

Mexico’s water suppliers can balance water use with a renewable supply.

OSE suggests that this statute proposes to codify the process by which 40-year water

development plans must be developed. The state engineer recognizes the importance of

standardizing the 40-year development planning process. However, this is best done through

either a rule promulgation process or development of a policy directive. Additionally, the

proposed bill goes far beyond the statutory duties of the state engineer. Concepts related to land

use planning; political feasibility; and social and cultural impacts (lines 16, 17, and 18 of page 5)

go far beyond the current administrative considerations of the state engineer. OSE adds that it

expends 2 FTEs on reviewing 40-year water development plans and, currently, a 40-year water

development plan requires approximately 0.05 FTE for an unprotected application, .25 FTE for a

protested application, and that the proposed criteria roughly double the necessary review times.

OAG notes that in Colorado v. New Mexico, 467 U.S. 310 (1984), the U.S. Supreme Court made

it clear that, under the rules of equitable apportionment, a state must demonstrate a need for

interstate waters or risk losing them to another state that can make such a demonstration. In

2003, the Legislature required the preparation of a state water plan. Section 72-14-3.1, NMSA

1978. One purpose of the state water plan was to protect New Mexico’s apportionments in

interstate waters from appropriation by other states. Similarly, the Legislature created the state’s

regional water planning program in 1987. Sixteen regional water plans have been developed to

document the state’s water planning for specific geographic regions of the state.

2

OAG adds that the legislation would advance this important public purpose of planning for the

state’s future water needs by requiring planning at the local level, which would complement

planning that has already occurred and is ongoing at the state and regional level. State law

already prohibits local governmental entities from acquiring and holding water rights to meet

future demand in an amount greater than the amount necessary to meet their reasonable needs

within 40 years. However, without local water planning, there is no practical way for the state to

enforce this restriction. HB1234 would require certain local governmental entities to submit

water management plans.

NMHED indicates that the revisions concern water use planning and require that water

management plans conform to specified criteria and be submitted to the State Engineer. Specific

language details the content of water management plans dealing with issues of assessment, water

depletion, points of diversion, water quality, future projections, conservation, proposed

management alternatives, and other technicalities. The water plans would be made public. No

water rights would be acquired until management plans were approved by the State Engineer.

2

http://www.ose.state.nm.us/isc_regional_plans.html

House Bill 1234 – Page

4

NMHED concludes that this act focuses on the mention of state universities in the act. The state

promotes the conservation of water by state universities among other municipalities and entities.

New Mexico State University is the largest holder of water rights among postsecondary

institutions. The language "state university" in the water law statute begs the question of whether

or not all postsecondary institutions are included in the planning processes for their future water

use. Further, NMHED recommends that the State Engineer's Office review the list of required

entities that are allowed to acquire and hold unused water rights to ensure that the growing needs

of all postsecondary campus communities are taken into consideration

ADMINISTRATIVE IMPLICATIONS

NMHED notes that the requested water management plan would help to synchronize the system

statewide. New Mexico’s state universities would be responsible for submitting required plans to

ensure maintenance of water rights and usage to meet the demands of the campus communities.

NMDA suggests that there would not be any administrative implications to NMDA, but all

entities required to produce water management plans would encounter administrative costs,

while the state engineer will have to administer a program to evaluate plans and enforce the

legislation.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates HB1234.

TECHNICAL ISSUES

OAG suggests that, although the Interstate Stream Commission has been extensively involved in

state and regional water planning activities, it is not given any explicit review or approval

authority in HB1234. The Interstate Stream Commission is administrative attached to and works

closely with the State Engineer, who is given approval authority over local water management

plans in HB1234. It may be beneficial for the State Engineer to involve the Interstate Stream

Commission at some level during his review and approval process for local water management

plans. This could be addressed in the rules that the State Engineer is required to promulgate in

the proposed subsection 72-1-9(E).

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

OAG states, “Continuation of the status quo, which could include challenges by other states to

New Mexico’s appropriations of interstate waters."

BFW/csd