0001|                           HOUSE BILL 1036
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                          PATSY G. TRUJILLO
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO WATER; PROVIDING FOR CONSERVATION OF WATER
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0012|     RESOURCES; ENACTING THE WATER CONSERVATION INCENTIVES ACT;
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0013|     AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  [<u>NEW MATERIAL</u>]  SHORT TITLE.--Sections 1
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0017|     through 6 of this act may be cited as the "Water Conservation
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0018|     Incentives Act".
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0019|          Section 2.  [<u>NEW MATERIAL</u>]  FINDINGS--PURPOSE.--
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0020|               A.  The legislature finds that the conservation and
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0021|     efficient use of water:
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0022|                    (1)  benefits all water users;
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0023|                    (2)  provides water to satisfy current and
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0024|     future needs through reduction of waste;
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0025|                    (3)  improves water quality by reducing
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0001|     contaminated return flow;
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0002|                    (4)  reduces erosion; and
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0003|                    (5)  provides increased water supplies.
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0004|               B.  The purpose of the Water Conservation Incentives
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0005|     Act is to promote conservation of limited water resources by
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0006|     providing incentives to water users to conserve water and to
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0007|     enhance the public interest by increasing streamflows by means
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0008|     of reducing diversions through application of conservation
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0009|     measures.
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0010|          Section 3.  [<u>NEW MATERIAL</u>]  DEFINITIONS.--As used in the
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0011|     Water Conservation Incentives Act:
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0012|               A.  "conservation" means the reduction of water use
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0013|     while exercising a water right through the application of
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0014|     conservation measures, including:
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0015|                    (1)  improvements in irrigation methods and
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0016|     conveyances;
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0017|                    (2)  conversion to low-water-use plumbing
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0018|     fixtures or industrial processes; and 
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0019|                    (3)  utility rate pricing calculated to reduce
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0020|     water usage;
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0021|               B.  "conserved water" means that amount of water
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0022|     that represents the difference between a water right and the
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0023|     amount of water diverted to serve the same use with the
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0024|     application of conservation measures, but does not mean water
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0025|     that has been subjected to a change in point of diversion,
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0001|     place or purpose of use;
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0002|               C.  "consumptive right" means the amount of water a
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0003|     water right owner is entitled to consume in a beneficial use;
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0004|               D.  "diversion right" means that amount of water
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0005|     that a water right owner is entitled to divert from a water
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0006|     source in order to deliver a consumptive right for beneficial
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0007|     use and includes the consumptive right plus losses between the
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0008|     point of diversion and point of use;
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0009|               E.  "on-farm incidental depletion" means water lost
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0010|     to evaporation from wetted soils or plant surfaces, standing
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0011|     water in feeder ditches or furrows or through spray irrigation;
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0012|     and
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0013|               F.  "person" means an individual or other legal
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0014|     entity.
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0015|          Section 4.  [<u>NEW MATERIAL</u>]  DETERMINATION--APPLICATION
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0016|     OF CONSERVED WATER.--
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0017|               A.  A person seeking to have a portion of a water
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0018|     right found to be conserved water shall request the state
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0019|     engineer to make an initial determination of conserved water. 
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0020|     The determination of conserved water may be made in conjunction
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0021|     with an application for a change in point of diversion, place
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0022|     or purpose of use of the portion of the right represented by
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0023|     the conserved water.  The request for a determination of
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0024|     conserved water in conjunction with a change in point of
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0025|     diversion, place or purpose of use of the portion of the right
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0001|     represented by the conserved water shall be pursuant to state
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0002|     engineer rules and regulations and shall include the following
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0003|     information regarding the proposed conservation of water:
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0004|                    (1)  a description of the methods used to
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0005|     conserve the water; and
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0006|                    (2)  a statement of the amount of water that is
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0007|     expected to be conserved.
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0008|               B.  The state engineer shall adopt and promulgate
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0009|     rules and regulations for quantification of the water
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0010|     conserved, proof of maintenance of conservation measures and
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0011|     consequences of failure to maintain conservation measures.
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0012|               C.  Publication and distribution of public notice
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0013|     and opportunity for public hearing in the event of an objection
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0014|     or protest of the application shall be as set forth in Sections
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0015|     72-5-5 and 72-12-3 NMSA 1978.
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0016|          Section 5.  [<u>NEW MATERIAL</u>]  ALLOCATION OF CONSERVED
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0017|     WATER.--
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0018|               A.  If the state engineer determines that a portion
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0019|     of a water right is conserved water, the person with rights to
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0020|     that conserved water may apply to the state engineer pursuant
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0021|     to the provisions of Sections 72-5-23, 72-5-24 and 72-12-7 NMSA
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0022|     1978 to use, lease or sell a portion of the conserved water as
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0023|     described in Subsection B of this section.
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0024|               B.  Rights to that portion of the conserved water
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0025|     recovered by reducing beneficial consumptive use or on-farm
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0001|     incidental depletions shall be fully available to the applicant
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0002|     to use, lease or sell.  Rights to that portion of the conserved
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0003|     water generated through reduction of the applicant's diversion
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0004|     right shall be allocated to one or more of the following uses:
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0005|                    (1)  a conservation program as defined in
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0006|     Section 72-1-2.2 NMSA 1978;
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0007|                    (2)  protection or recovery of endangered
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0008|     species or enhancement of riparian habitat;
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0009|                    (3)  enhancement of streamflows to ensure
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0010|     compliance with interstate stream compact obligations; or
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0011|                    (4)  any other nonconsumptive use found by the
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0012|     state engineer to be in the public welfare of the state.
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0013|               C.  Conserved water shall have the same priority
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0014|     date as the original right.
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0015|               D.  The portion of a water right determined to be
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0016|     conserved waters shall be exempt from forfeiture to Sections
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0017|     72-5-28 and 72-12-8 NMSA 1978.
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0018|          Section 6.  [<u>NEW MATERIAL</u>]  NO IMPAIRMENT.--Nothing in
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0019|     the Water Conservation Incentives Act shall be construed to
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0020|     impair or condemn any existing water right.
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0021|          Section 7.  Section 72-5-28 NMSA 1978 (being Laws 1907,
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0022|     Chapter 49, Section 42, as amended) is amended to read:
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0023|          "72-5-28.  FAILURE TO USE WATER--FORFEITURE.--
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0024|               A.  When the party entitled to the use of water
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0025|     fails to beneficially use all or any part of the water claimed
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0001|     by him, for which a right of use has vested for the purpose for
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0002|     which it was appropriated or adjudicated, except the waters for
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0003|     storage reservoirs, for a period of four years, such unused
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0004|     water shall, if the failure to beneficially use the water
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0005|     persists one year after notice and declaration of nonuser given
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0006|     by the state engineer, revert to the public and shall be
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0007|     regarded as unappropriated public water; provided, however,
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0008|     that forfeiture shall not necessarily occur if circumstances
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0009|     beyond the control of the owner have caused nonuse, such that
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0010|     the water could not be placed to beneficial use by diligent
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0011|     efforts of the owner; and provided that periods of nonuse, when
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0012|     irrigated farm lands are placed under the acreage reserve
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0013|     program or conservation reserve program provided by the Food
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0014|     Security Act of 1985,   P.L. 99-198, shall not be computed as
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0015|     part of the four-year forfeiture period; and provided, further,
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0016|     that the condition of notice and declaration of nonuser shall
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0017|     not apply to water which has reverted to the public by
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0018|     operation of law prior to June 1, 1965.
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0019|               B.  Upon application to the state engineer at any
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0020|     time and a proper showing of reasonable cause for delay or for
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0021|     nonuse or upon the state engineer finding that it is in the
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0022|     public interest, the state engineer may grant extensions of
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0023|     time, for a period not to exceed <s>[three years]</s> <u>one year</u> for
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0024|     each extension, in which to apply to beneficial use the water
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0025|     for which a permit to appropriate has been issued or a water
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0001|     right has vested, was appropriated or has been adjudicated.
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0002|               C.  Periods of nonuse when water rights are acquired
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0003|     by incorporated municipalities or counties for implementation
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0004|     of their water development plans or for preservation of
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0005|     municipal or county water supplies shall not be computed as
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0006|     part of the four-year forfeiture statute.
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0007|               D.  A lawful exemption from the requirements of
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0008|     beneficial use, either by an extension of time or other
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0009|     statutory exemption, stops the running of the four-year period
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0010|     for the period of the exemption, and the period of exemption
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0011|     shall not be included in computing the four-year period.
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0012|               E.  Periods of nonuse when the nonuser of acquired
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0013|     water rights is on active duty as a member of the armed forces
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0014|     of this country shall not be included in computing the four-
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0015|     year period.
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0016|               F.  The owner or holder of a valid water right or
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0017|     permit to appropriate waters for agricultural purposes
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0018|     appurtenant to designated or specified lands may apply the full
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0019|     amount of water covered by or included in the water right or
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0020|     permit to any part of <s>[such]</s> <u>the</u> designated or specified
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0021|     tract without penalty or forfeiture.
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0022|               G.  Periods of nonuse when water rights are acquired
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0023|     and placed in a water conservation program, which has been
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0024|     approved by the state engineer, by a conservancy district
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0025|     organized pursuant to Chapter 73, Articles 14 through 19 NMSA
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0001|     1978 or an acequia or community ditch association organized
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0002|     pursuant to Chapter 73, Article 2 NMSA 1978 or the interstate
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0003|     stream commission shall not be computed as part of the four-
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0004|     year forfeiture period.
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0005|               <u>H.  Water that has been determined to be conserved
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<u></u>0006| <u>    water by the state engineer pursuant to the Water Conservation
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<u></u>0007| <u>    Incentives Act shall not be forfeited, provided the person
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<u></u>0008| <u>    exercising conservation measures initiates a new use or
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<u></u>0009| <u>    transfers the use of the conserved water within ten years after
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<u></u>0010| <u>    the determination of conserved water.</u>"
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0011|          Section 8.  Section 72-12-8 NMSA 1978 (being Laws 1931,
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0012|     Chapter 131, Section 8, as amended) is amended to read:
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0013|          "72-12-8.  WATER RIGHT FORFEITURE.--
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0014|               A.  When for a period of four years the owner of a
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0015|     water right in any of the waters described in Sections 72-12-1
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0016|     through 72-12-28 NMSA 1978 or the holder of a permit from the
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0017|     state engineer to appropriate any such waters has failed to
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0018|     apply them to the use for which the permit was granted or the
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0019|     right has vested, was appropriated or has been adjudicated, the
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0020|     water rights shall be, if the failure to beneficially use the
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0021|     water persists one year after notice and declaration of nonuser
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0022|     given by the state engineer, forfeited and the water so unused
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0023|     shall revert to the public and be subject to further
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0024|     appropriation; provided that the condition of notice and
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0025|     declaration of nonuser shall not apply to water which has
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0001|     reverted to the public by operation of law prior to June l,
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0002|     l965.
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0003|               B.  Upon application to the state engineer at any
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0004|     time and a proper showing of reasonable cause for delay or for
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0005|     nonuse or upon the state engineer finding that it is in the
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0006|     public interest, the state engineer may grant extensions of
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0007|     time, for a period not to exceed <s>[three years]</s> <u>one year</u> for
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0008|     each extension, in which to apply to beneficial use the water
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0009|     for which a permit to appropriate has been issued or a water
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0010|     right has vested, was appropriated or has been adjudicated.
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0011|               C.  Periods of nonuse when irrigated farm lands are
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0012|     placed under the acreage reserve program or conservation
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0013|     reserve program provided by the Food Security Act of l985, P.L.
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0014|     99-l98, shall not be computed as part of the four-year
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0015|     forfeiture period.
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0016|               D.  Periods of nonuse when water rights are acquired
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0017|     and placed in a water conservation program adopted by an
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0018|     artesian conservancy district, conservancy district or the
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0019|     interstate stream commission shall not be computed as part of
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0020|     the four-year forfeiture statute.
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0021|               E.  A lawful exemption from the requirements of
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0022|     beneficial use, either by an extension of time or other
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0023|     statutory exemption, stops the running of the four-year period
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0024|     for the period of the exemption, and the period of exemption
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0025|     shall not be included in computing the four-year period.
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0001|               F.  Periods of nonuse when water rights are acquired
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0002|     by incorporated municipalities or counties for implementation
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0003|     of their water development plans or for preservation of
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0004|     municipal or county water supplies shall not be computed as
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0005|     part of the four-year forfeiture statute.
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0006|               G.  Periods of nonuse when the nonuser of acquired
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0007|     water rights is on active duty as a member of the armed forces
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0008|     of this country shall not be included in computing the four-
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0009|     year period.
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0010|               H.  The owner or holder of a valid water right or
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0011|     permit to appropriate waters for agricultural purposes
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0012|     appurtenant to designated or specified lands may apply the full
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0013|     amount of water covered by or included in that water right or
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0014|     permit to any part of <s>[such]</s> <u>the</u> designated or specified
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0015|     tract without penalty or forfeiture.
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0016|               <u>I.  Water that has been determined to be conserved
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<u></u>0017| <u>    water by the state engineer pursuant to the Water Conservation
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<u></u>0018| <u>    Incentives Act shall not be forfeited, provided the person
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<u></u>0019| <u>    exercising conservation measures initiates a new use or
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<u></u>0020| <u>    transfers the use of the conserved water within ten years after
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<u></u>0021| <u>    the determination of conserved water.</u>"
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0022|                              
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