SENATE BILL 77

51st legislature - STATE OF NEW MEXICO - second session, 2014

INTRODUCED BY

Timothy M. Keller and Brian F. Egolf, Jr.

AN ACT

RELATING TO WATER; REQUIRING ADDITIONAL PROCEDURES IN THE APPLICATION PROCESS FOR THE DIVERSION AND USE OF WATER FROM THE BASIN OF ORIGIN FOR USE OUTSIDE THE BASIN OF ORIGIN; PROVIDING FOR EXCEPTIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] APPLICATION FOR INTER-BASIN TRANSFER OF WATER.--

          A. Any person or other entity intending to withdraw water from any surface or underground water source and transport it for use outside the basin of origin shall apply to the state engineer for a permit to do so in addition to fulfilling all other permit application requirements of Articles 5 and 12 of Chapter 72 NMSA 1978.

          B. Before approving an application submitted pursuant to the provisions of Subsection A of this section, the state engineer shall conduct a comprehensive review of the information required by Subsection C of this section, at the applicant's expense, and find that the applicant's proposed use of water outside the basin of origin will not impair existing water rights in either the basin of origin or the receiving basin, is not contrary to the conservation of water within the state and is not otherwise detrimental to the public welfare of the state.

          C. In acting upon an application submitted pursuant to the provisions of Subsection A of this section, the state engineer shall consider, but not be limited to, the following factors:

                (1) the amount of water in the basin of origin available for future appropriation;

                (2) present and reasonably foreseeable projected future needs for water in the basin of origin and the receiving basin;

                (3) benefits presently and prospectively derived from the return flow of water used within the basin of origin that will be eliminated by the proposed out-of-basin use;

                (4) the correlation between surface water and ground water in the basin of origin, and whether the proposed use will be harmful to the supply of either;

                (5) interference with planned uses or developments within the basin of origin for which a permit has been issued or for which an application is pending;

                (6) whether the proposed use will adversely affect the quantity or quality of water available for domestic, agricultural, environmental, public recreational or municipal uses within either the basin of origin or the receiving basin;

                (7) whether the proposed transfer will unduly limit the future growth and development in the basin from which the water is exported;

                (8) the practicable availability of alternative sources of water for the proposed use that would not rely on transfer of water out of its basin of origin;

                (9) whether the entity in the receiving basin has prepared and implemented a drought contingency plan and an approved water conservation plan;

                (10) whether all funding necessary for the withdrawal and transportation of water to the receiving basin has been secured and guaranteed by the applicant; and

                (11) whether the source of supply can reliably sustain the diversion's anticipated firm yield considering the predicted effects of climate change on precipitation patterns and temperature in the basin of origin.

          D. This section shall apply only to an application filed on or after July 1, 2014.

          E. This section shall not apply to an application for the inter-basin transfer of less than one thousand acre-feet of water per year.

          F. Diversions in excess of seven thousand acre-feet per year shall require the express consent of the legislature. The legislature may require such terms, conditions, exceptions, reservations, restrictions and provisions in an inter-basin permit as is reasonable to protect the natural resources in the basin of origin and the health and welfare of the present and future residents of the basin of origin.

          G. This section shall not apply to:

                (1) an appropriation or diversion by a municipality to facilitate regional municipal water service if the municipality has historically transported water between the basin of origin and the proposed receiving basin identified in the application; or

                (2) an inter-basin diversion project that is authorized and approved and for which construction began or was completed on or before January 1, 2014.

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