HB0095

HOUSE BILL 95

55th legislature - STATE OF NEW MEXICO - first session, 2021

INTRODUCED BY

Andrea Romero

AN ACT

RELATING TO WATER; PROVIDING FACTORS FOR THE STATE ENGINEER TO CONSIDER IN ASSESSING WHETHER A WATER USE WILL BE CONTRARY TO THE CONSERVATION OF WATER OR DETRIMENTAL TO THE PUBLIC WELFARE; ALLOWING CITIZEN STANDING TO CHALLENGE AN APPLICATION BEFORE THE STATE ENGINEER; REQUIRING THE STATE ENGINEER TO PUBLISH FINDINGS IN SUPPORT OF APPROVING OR DENYING AN APPLICATION AND TO BE BOUND BY THE RATIONALE IN FUTURE DECISIONS; DIRECTING THE STATE WATER PLAN, WATER CONSERVATION PLANS AND REGIONAL WATER PLANNING TO INCLUDE CONSIDERATION OF CLIMATE CHANGE IMPACTS ON WATER SUPPLY AND DEMAND OVER A FORTY-YEAR PERIOD; DIRECTING THE STATE ENGINEER TO ADOPT RULES TO ADDRESS THE IMPACT OF CLIMATE CHANGE ON THE STATE'S WATERS.

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

SECTION 1. Section 72-5-5 NMSA 1978 (being Laws 1965, Chapter 285, Section 6, as amended) is amended to read:

"72-5-5. OBJECTIONS TO APPLICATIONS--FILING OF PROTESTS--DEFINITION OF STANDING.--

A. If objection or protest to the application is timely filed, the state engineer shall advise interested parties, and a hearing shall be held as otherwise provided by statute.

B. [Any] A person, firm or corporation or other entity objecting that the granting of the application will be detrimental to the objector's water right shall have standing to file objections or protests. [Any] A person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state [and showing that the objector will be substantially and specifically affected by the granting of the application] shall have standing to file objections or protests. [Provided, however, that] The state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions and all political subdivisions of the state and their agencies, instrumentalities and institutions shall have standing to file objections or protests."

SECTION 2. Section 72-5-6 NMSA 1978 (being Laws 1907, Chapter 49, Section 27, as amended) is amended to read:

"72-5-6. HEARING--APPROVAL--PERMIT.--

A. Upon the receipt of the proofs of publication, accompanied by any statutory fees required at this time, the state engineer shall determine, from the evidence presented by the parties interested, from such surveys of the water supply as may be available and from the records, whether there is unappropriated water available for the benefit of the applicant. [If so]

B. If there is unappropriated water available for the benefit of the applicant and if the proposed appropriation is not contrary to the conservation of water within the state and is not detrimental to the public welfare of the state, the state engineer shall endorse [his] approval on the application, which shall become a permit to appropriate water, and shall state in [such] the approval the time within which the construction shall be completed and the time within which water shall be applied to a beneficial use; provided that the state engineer may, in [his] the state engineer's discretion, approve [any] an application for a less amount of water or may vary the periods of annual use, and the permit to appropriate water shall be regarded as limited accordingly. The time allowed by the state engineer for completion of works or application of water to beneficial use shall be governed by the size and complexity of the project, but in no case shall exceed five years from the date of approval within which to complete construction, and four years in addition thereto within which to apply water to a beneficial use; provided that the state engineer shall have the power to grant extensions of time for completion of works or application of water to beneficial use as provided in Section 72-5-14 NMSA 1978.

C. The state engineer shall publish specific findings to support the state engineer's approval or denial of an application, which shall include the factual and legal rationale for the state engineer's decision. The rationale used in approving or denying an application shall be precedent for the state engineer's consideration of subsequent applications, unless the factual or legal basis for approval or denial of a subsequent application is clearly distinguished."

SECTION 3. Section 72-5-7 NMSA 1978 (being Laws 1907, Chapter 49, Section 28, as amended) is amended to read:

"72-5-7. APPLICATION--REJECTION--NONCOMPLIANCE WITH RULES--CONSERVATION AND PUBLIC WELFARE.--

A. If, in the opinion of the state engineer, there is no unappropriated water available, [he] the state engineer shall reject [such] an application. [He]

B. The state engineer shall decline to order the publication of notice of [any] an application [which] that does not comply with the requirements of the law and rules. [and regulations. He]

C. The state engineer may also refuse to consider or approve [any] an application or notice of intention to make application or to order the publication of notice of [any] an application if, in [his] the state engineer's opinion, approval would be contrary to the conservation of water within the state or detrimental to the public welfare of the state. In determining if the approval would be:

(1) contrary to the conservation of water within the state, the state engineer shall make written findings based on reliable scientific projections of the impacts of climate change over a forty-year period on the sustainability or depletion of the water source; and

(2) detrimental to the public welfare of the state, the state engineer shall make written findings on whether the proposed beneficial use of the water is economically viable over a forty-year period."

SECTION 4. Section 72-5-23 NMSA 1978 (being Laws 1907, Chapter 49, Section 44, as amended) is amended to read:

"72-5-23. WATER APPURTENANT TO LAND--CHANGE OF PLACE OF USE.--

A. All water used in this state for irrigation purposes, except as otherwise provided in this article, shall be considered appurtenant to the land upon which it is used, and the right to use it upon the land shall never be severed from the land without the consent of the owner of the land, but, by and with the consent of the owner of the land, all or any part of the right may be severed from the land, simultaneously transferred and become appurtenant to other land, or may be transferred for other purposes, without losing priority of right theretofore established, if such changes can be made without detriment to existing water rights and are not contrary to conservation of water within the state and not detrimental to the public welfare of the state, on the approval of an application of the owner by the state engineer.

B. Publication of notice of application, opportunity for the filing of objections or protests and a hearing on the application shall be provided as required by Sections 72-5-4 and 72-5-5 NMSA 1978.

C. In determining if the approval would be:

SECTION 5. Section 72-5A-5 NMSA 1978 (being Laws 1999, Chapter 285, Section 5, as amended) is amended to read:

"72-5A-5. NOTICE--PROTESTS--HEARINGS--DETERMINATIONS--JUDICIAL REVIEW.--

A. Upon receipt of an application for a permit to construct and operate a project, the state engineer shall endorse on the application the date it was received and shall keep a record of the application. The state engineer shall conduct an initial review of the application within sixty days of receipt. If the state engineer determines in the initial review that the application is incomplete, the state engineer shall notify the applicant of the application's deficiencies. The application shall remain incomplete until the applicant provides all information required by the Ground Water Storage and Recovery Act. The state engineer may request additional information from the applicant and shall conduct an investigation of the project.

B. Within thirty days after determining that an application is complete, unless an extension is requested by the applicant, the state engineer shall proceed in accordance with the provisions of Section [1 of this 2019 act] 72-2-20 NMSA 1978 regarding notice of the application. The notice shall contain:

(1) the legal description of the location of the proposed project;

(2) a brief description of the proposed project, including its capacity;

(3) the name of the applicant;

(4) the date of the last publication; and

(5) the requirements for an objection.

C. A person objecting that the granting of the application will impair the objector's water right, will be contrary to the conservation of water or will be detrimental to the public welfare [and showing that the objector will be substantially and specifically affected by the granting of the application] shall have standing to file objections or protests. [provided, however, that] The state or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions, shall have standing to file objections or protests.

D. An objection shall be filed in writing, include the name and mailing address of the objector, identify the grounds for the objection and include the signature of the objector or the objector's legal representative. The state engineer shall schedule a hearing on the application and provide at least thirty days' notice of the hearing, by certified mail, to the applicant and any objector.

E. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if the state engineer finds that the application meets the requirements of the Ground Water Storage and Recovery Act, issue a permit to the applicant to construct the project to store and recover all or a part of the waters applied for, as conditioned by the state engineer.

F. The state engineer shall publish specific findings to support the state engineer's approval or denial of an application, which shall include the factual and legal rationale for the state engineer's decision. The rationale used in approving or denying an application shall be precedent for the state engineer's consideration of subsequent applications, unless the factual or legal basis for approval or denial of a subsequent application is clearly distinguished.

[F.] G. A person or governmental entity aggrieved by any decision of the state engineer may appeal that decision to the district court pursuant to Section 72-7-1 NMSA 1978."

SECTION 6. Section 72-6-5 NMSA 1978 (being Laws 1967, Chapter 100, Section 5, as amended) is amended to read:

"72-6-5. APPROVAL.--

A. The state engineer shall approve the application if the applicant has reasonably shown that [his] the applicant's proposed use and location of use is a beneficial use and:

(1) will not impair any existing right to a greater degree than [such] the right is, or would be, impaired by the continued use and location of use by the owner; and

(2) will not be contrary to the conservation of water within the state or detrimental to the public welfare of the state.

B. In the case of annual allotments of project water leased to a special water users' association from an irrigation district organized pursuant to Chapter 73, Article 10 NMSA 1978, if the state engineer determines that the proposed changes in place and purpose of use and point of diversion comply with the rules established pursuant to Subsection G of Section 73-10-48 NMSA 1978, the board of directors of the irrigation district may approve the application in accordance with the provisions of Section 73-10-48 NMSA 1978.

C. In determining if the approval would be:

(2) detrimental to the public welfare of the state, the state engineer shall make written findings on whether the proposed beneficial use of the water is economically viable over a forty-year period.

D. The state engineer shall publish specific findings to support the state engineer's approval or denial of an application, which shall include the factual and legal rationale for the state engineer's decision. The rationale used in approving or denying an application shall be precedent for the state engineer's consideration of subsequent applications, unless the factual or legal basis for approval or denial of a subsequent application is clearly distinguished."

SECTION 7. Section 72-12-3 NMSA 1978 (being Laws 1931, Chapter 131, Section 3, as amended) is amended to read:

"72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER--PUBLICATION OF NOTICE--PERMIT.--

A. [Any] A person, firm or corporation or any other entity desiring to appropriate for beneficial use any of the waters described in Chapter 72, Article 12 NMSA 1978 shall apply to the state engineer in a form prescribed by the state engineer. In the application, the applicant shall designate:

(1) the particular underground stream, channel, artesian basin, reservoir or lake from which water will be appropriated;

(2) the beneficial use to which the water will be applied;

(3) the location of the proposed well;

(4) the name of the owner of the land on which the well will be located;

(5) the amount of water applied for;

(6) the place of the use for which the water is desired; and

(7) if the use is for irrigation, the description of the land to be irrigated and the name of the owner of the land.

B. If the well will be located on privately owned land and the applicant is not the owner of the land or the owner or the lessee of the mineral or oil and gas rights under the land, the application shall be accompanied by an acknowledged statement executed by the owner of the land that the applicant is granted access across the owner's land to the drilling site and has permission to occupy such portion of the owner's land as is necessary to drill and operate the well. This subsection does not apply to the state or any of its political subdivisions. If the application is approved, the applicant shall have the permit and statement, executed by the owner of the land, recorded in the office of the county clerk of the county in which the land is located.

C. No application shall be accepted by the state engineer unless it is accompanied by all the information required by Subsections A and B of this section.

D. Upon the filing of an application, the state engineer shall proceed in accordance with the provisions of Section [1 of this 2019 act] 72-2-20 NMSA 1978 regarding notice of the application. [Any] A person, firm or corporation or other entity objecting that the granting of the application will impair the objector's water right shall have standing to file objections or protests. [Any] A person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state [and showing that the objector will be substantially and specifically affected by the granting of the application] shall have standing to file objections or protests. [provided, however, that] The state or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions, shall have standing to file objections or protests.

E. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if the state engineer finds that there are in the underground stream, channel, artesian basin, reservoir or lake unappropriated waters and that the 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.

F. If objections or protests have been filed within the time prescribed in the notice or if the state engineer is of the opinion that the permit should not be issued, the state engineer may deny the application without a hearing or, before the state engineer acts on the application, may order that a hearing be held. The state engineer shall notify the applicant of the action by certified mail sent to the address shown in the application.

G. In determining if the approval would be:

(2) detrimental to the public welfare of the state, the state engineer shall make written findings on whether the proposed beneficial use of the water is economically viable over a forty-year period.

H. The state engineer shall publish specific findings to support the state engineer's approval or denial of an application, which shall include the factual and legal rationale for the state engineer's decision. The rationale used in approving or denying an application shall be precedent for the state engineer's consideration of subsequent applications, unless the factual or legal basis for approval or denial of a subsequent application is clearly distinguished."

SECTION 8. Section 72-12B-1 NMSA 1978 (being Laws 1983, Chapter 2, Section 1, as amended) is amended to read:

"72-12B-1. APPLICATIONS FOR THE TRANSPORTATION AND USE OF PUBLIC WATERS OUTSIDE THE STATE.--

A. The state of New Mexico has long recognized the importance of the conservation of its public waters and the necessity to maintain adequate water supplies for the state's water requirements. The state of New Mexico also recognizes that under appropriate conditions, the out-of-state transportation and use of its public waters is not in conflict with the public welfare of its citizens or the conservation of its waters.

B. [Any] A person, firm or corporation or any other entity intending to withdraw water from any surface or underground water source in the state of New Mexico and transport it for use outside the state or to change the place or purpose of use of a water right from a place in New Mexico to a place out of that state shall apply to the state engineer for a permit to do so. Upon the filing of an application, the state engineer shall proceed in accordance with the provisions of Section [1 of this 2019 act] 72-2-20 NMSA 1978 regarding notice of the application. Any person, firm or corporation or other entity objecting that the granting of the application would impair or be detrimental to the objector's water right shall have standing to file objections or protests. [Any] A person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state [and showing that the objector will be substantially and specifically affected by the granting of the application] shall have standing to file objections or protests. [Provided, however, that] The state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions, shall have standing to file objections or protests. The state engineer shall accept for filing and act upon all applications filed under this section in accordance with the provisions of this section. The state engineer shall require notice of the application and shall thereafter proceed to consider the application in accordance with existing administrative law and procedure governing the appropriation of surface or ground water.

C. In order to approve an application under this act, the state engineer must find that the applicant's withdrawal and transportation of water for use outside the state would not impair existing water rights, is not contrary to the conservation of water within the state and is not otherwise detrimental to the public welfare of the citizens of New Mexico.

D. In acting upon an application under this act, the state engineer shall consider [but not be limited to] the following factors:

(1) the supply of water available to the state of New Mexico;

(2) water demands of the state of New Mexico;

(3) whether there are water shortages within the state of New Mexico;

(4) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages in the state of New Mexico;

(5) the supply and sources of water available to the applicant in the state where the applicant intends to use the water; [and]

(6) the demands placed on the applicant's supply in the state where the applicant intends to use the water;

(7) reliable scientific projections of the impacts of climate change over a forty-year period on the sustainability or depletion of the water source; and

(8) whether the proposed beneficial use of the water is economically viable over a forty-year period.

E. By filing an application to withdraw and transport waters for use outside the state, the applicant shall submit to and comply with the laws of the state of New Mexico governing the appropriation and use of water.

F. The state engineer is empowered to condition the permit to insure that the use of water in another state is subject to the same regulations and restrictions that may be imposed upon water use in the state of New Mexico.

G. Upon approval of the application, the applicant shall designate an agent in New Mexico for reception of service of process and other legal notices.

SECTION 9. Section 72-14-3.1 NMSA 1978 (being Laws 2003, Chapter 131, Section 1 and Laws 2003, Chapter 137, Section 1) is amended to read:

"72-14-3.1. STATE WATER PLAN--PURPOSE--CONTENTS.--

A. It is the intent of the legislature that the

interstate stream commission, in collaboration with the office of the state engineer and the water trust board, prepare and implement a comprehensive state water plan.

B. The state water plan shall be a strategic

management tool for the purposes of:

(1) promoting stewardship of the state's water resources;

(2) protecting and maintaining water rights and their priority status;

(3) protecting the diverse customs, culture, environment and economic stability of the state;

(4) protecting both the water supply and water quality;

(5) promoting cooperative strategies, based on concern for meeting the basic needs of all New Mexicans;

(6) meeting the state's interstate compact obligations;

(7) providing a basis for prioritizing infrastructure investment; and

(8) providing statewide continuity of policy and management relative to our water resources.

C. The interstate stream commission in collaboration with the office of the state engineer and in consultation with other government agencies as appropriate shall develop a comprehensive, coordinated state water plan that shall:

(1) identify and reflect the common priorities, goals and objectives that will have a positive impact on the public welfare of the state;

(2) establish a clear vision and policy direction for active management of the state's waters;

(3) identify and use reliable scientific projections of the impacts of climate change for future water demand, supply and storage of the surface and ground waters of New Mexico over a forty-year period;

[(3)] (4) include an inventory of the quantity and quality of the state's water resources, population projections and other water resource demands under a range of conditions, including reliable scientific projections of the impacts of climate change on the waters of New Mexico over a forty-year period;

[(4)] (5) include water budgets for the state and for all major river basins and aquifer systems in the state;

[(5)] (6) develop water conservation strategies and policies to maximize beneficial use, including reuse and recycling by conjunctive management of water resources and by doing so to promote nonforfeiture of water rights;

[(6)] (7) include a drought management plan designed to address drought emergencies, promote strategies for prevention of drought-related emergencies in the future and coordinate drought planning statewide;

[(7)] (8) recognize the relationship between water availability and land-use decisions;

[(8)] (9) promote river riparian and watershed restoration that focuses on protecting the water supply, improving water quality and complying with federal Endangered Species Act of 1973 mandates;

[(9)] (10) consider water rights transfer policies that balance the need to protect the customs, culture, environment and economic health and stability of the state's diverse communities while providing for timely and efficient transfers of water between uses to meet both short-term shortages and long-term economic development needs;

[(10)] (11) promote strategies and mechanisms for achieving coordination with all levels of government;

[(11)] (12) integrate regional water plans into the state water plan as appropriate and consistent with state water plan policies and strategies;

[(12)] (13) integrate plans of water supply purveyors, including those of local governments, privately owned public utilities, associations, cooperatives, irrigation districts and acequias as appropriate and consistent with state water plan policies and strategies, as those plans are completed and submitted to the office of the state engineer;

[(13)] (14) identify water-related infrastructure and management investment needs and opportunities to leverage federal and other funding; and

[(14)] (15) promote collaboration with and strategic focusing of the research and development of the state's national laboratories and research institutions to address the state's water challenges and to bring to the state demonstration projects in desalination, conservation, watershed restoration, weather modification and other technological approaches to enhancing water supply and management.

D. Recognizing that complete water rights adjudication, measurement, well inventories and adequate databases are essential elements of an effective water management plan, and further recognizing that completion of these work elements will require substantial time and resources until such time as these elements are complete, the state water plan shall include work plans and strategies for:

(1) completion of water rights adjudications, with required supporting documentation, including hydrographic surveys, aquifer mapping and aerial mapping of irrigated land;

(2) creation and completion of a comprehensive database and an electronically accessible information system on the state's water resources and water rights, including file abstraction and imaging of paper files as well as information on pending adjudications;

(3) measuring of surface and ground water uses in the state as necessary for management of the state's water resources; and

(4) taking inventory of existing water wells and determining appropriate disposition of unused wells.

E. The interstate stream commission and the office of the state engineer shall consult directly with the governments of Indian nations, tribes and pueblos to formulate a statement of policy and process to guide:

(1) coordination or integration of the water plans of Indian nations, tribes and pueblos located wholly or partially within New Mexico with the state water plan; and

(2) final adjudication or settlement of all water rights claims by Indian nations, tribes and pueblos located wholly or partially within New Mexico.

F. The interstate stream commission shall ensure that public participation and public input are integrated throughout the planning process. The interstate stream commission shall convene water planners and stakeholders from diverse constituencies to advise it and the office of the state engineer on the state water plan, including statewide policies, priorities, goals and objectives for the plan, issues of statewide concern and strategies for implementation of the plan. The interstate stream commission shall also ensure that representatives of the stakeholder groups affected by various plan components will participate in the development of those plan components. Members of the interstate stream commission and water trust board shall be notified of and are welcome to participate in all aspects of the planning process.

G. After public review and comment, the state water plan developed in conformance with this section is subject to adoption by the interstate stream commission. Following its adoption, the state water plan shall be presented to the interim legislative committee that studies water and natural resources.

H. The state water plan shall be periodically reviewed, updated and amended in response to changing conditions. At a minimum a review shall be undertaken every five years; provided that a water budget analysis for the state and for all major river basins and aquifer systems shall be undertaken and published every two years.

I. Nothing in the state water plan shall be construed to permit the granting or the condemnation of water rights.

J. Nothing in the state water plan shall be construed to determine, abridge or affect the water rights of Indian nations, tribes or pueblos."

SECTION 10. Section 72-14-3.2 NMSA 1978 (being Laws 2003, Chapter 138, Section 3) is amended to read:

"72-14-3.2. WATER CONSERVATION PLANS--MUNICIPALITIES, COUNTIES AND WATER SUPPLIERS.--

A. As used in this section, "covered entity" means municipalities, counties [and] or any other person that supplies, distributes or otherwise provides at least five hundred acre-feet of water annually for domestic, commercial, industrial or government customers for other than agricultural purposes, but does not include Indian tribes, pueblos, nations, chapters or any entity of a tribe, pueblo, nation or chapter.

B. A covered entity may develop, adopt and submit to the state engineer [by December 31, 2005] a comprehensive water conservation plan, including a drought management plan. In developing a water conservation plan, a covered entity shall use reliable scientific projections of the impacts of climate change over a forty-year period on projections for future water demand and supply and the water sources used by the covered entity.

C. The manner in which the covered entity develops, adopts and implements a comprehensive water conservation plan shall be determined by the covered entity. The plan shall be accompanied by a program for its implementation.

D. In developing a water conservation plan pursuant to this section:

(1) municipalities and counties shall consider ordinances and codes to encourage conservation measures; covered entities without ordinance or code enforcement ability shall consider incentives to encourage voluntary compliance with a set of conservation guidelines. Covered entities shall identify and implement best practices in their operations to improve conservation of the resources; and

(2) the covered entity shall consider, and incorporate into its plan if appropriate, at least the following:

(a) water-efficient fixtures and appliances, including toilets, urinals, showerheads and faucets;

(b) low-water-use landscaping and efficient irrigation;

(d) water reuse systems for both potable and nonpotable water;

(e) distribution system leak repair;

(f) dissemination of information regarding water-use efficiency measures, including public education programs and demonstrations of water-saving techniques;

(g) water rate structures designed to encourage water-use efficiency and reuse in a fiscally responsible manner; and

(h) incentives to implement water-use efficiency techniques, including rebates to customers or others, to encourage the installation of water-use efficiency and reuse measures.

E. The water conservation plan shall contain a section that references the regional water plans in the area that have been accepted by the interstate stream commission. The section shall cite conservation guidelines mentioned in the regional plan that have been adopted into the covered entity's water conservation plan.

F. A covered entity may at any time adopt changes to its water conservation plan and shall submit changes to the state engineer.

G. [After December 31, 2005] Neither the water trust board nor the New Mexico finance authority shall accept an application from a covered entity for financial assistance in the construction of any water diversion, storage, conveyance, water treatment or wastewater treatment facility unless the covered entity includes a copy of its water conservation plan."

SECTION 11. Section 72-14-44 NMSA 1978 (being Laws 1987, Chapter 182, Section 2) is amended to read:

"72-14-44. INTERSTATE STREAM COMMISSION--[GROUNDWATER] GROUND WATER APPROPRIATION--WATER RIGHTS PURCHASE--WATER PLANNING FUNDING.--

A. The interstate stream commission is authorized to appropriate [groundwater] ground water or purchase water rights on behalf of any of the various regions of the state.

B. Nothing in this section shall be construed as permitting the condemnation of water rights or as determining, abridging or affecting in any way the water rights of Indian nations, tribes or pueblos.

C. The interstate stream commission is authorized to make grants or loans of funds for the purpose of regional water planning. Prior to approval of any proposal by a region for planning funds under this section, the commission shall develop criteria for evaluating such proposals. These criteria at a minimum shall provide for:

(1) identification of the region requesting planning funds and why it is hydrologically and politically an appropriate applicant;

(2) use of an appropriate planning process, including opportunities for participation by those Indian nations, tribes or pueblos located within the various regions of the state;

(3) reasonable proposed costs and timetables for completion of the planning process;

(4) appropriate provisions for notice, review and comment where applicable;

(5) adequate review of potential conflict with laws relating to impact on existing water rights;

(6) adequate review of water conservation and the effect on the public welfare; [and]

(7) adequate review of reliable scientific projections of the impacts of climate change over a forty-year period on projections for future water demand and supply and the water sources used by the water planning region; and

[(7)] (8) identification of sources other than the interstate stream commission for funding of the proposed regional planning process.

D. A water planning region eligible for funding under this section is an area within the state that contains sufficient hydrological and political interests in common to make water planning feasible. The state as a whole shall not be considered a water planning region for purposes of this section.

E. No entity shall be made a part of a proposal for planning funds under this section without its consent.

F. No funds shall be granted under this [act] section to any party [or parties] that [are] is not within a water planning region. Whether a proposal for funding falls within a water planning region shall be determined on a case-by-case basis by the interstate stream commission after consultation with the state engineer and consideration of the following:

(1) whether the source of water and the potential place of use of the water are located within the same hydrologic basin; and

(2) if there is more than one party and the parties are requesting funds on a joint basis, whether the parties have demonstrated political and economic interests in common by entering into a binding intergovernmental agreement for carrying out the planning process."

SECTION 12. A new section of Chapter 72 NMSA 1978 is enacted to read:

"[NEW MATERIAL] RULEMAKING--CLIMATE CHANGE IMPACTS.--No later than July 1, 2023, the state engineer shall adopt rules to identify and assess the impacts of climate change on the surface and ground waters of New Mexico. The rules shall be based on reliable scientific projections and data and shall be used by the state engineer in administration of the state's water laws."

SECTION 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2021.

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