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F I S C A L I M P A C T R E P O R T
SPONSOR Herrera
ORIGINAL DATE
LAST UPDATED
2-20-07
HB 1184
SHORT TITLE Natural Waters Properties and Elements
SB
ANALYST Woods
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates SB1125
SOURCES OF INFORMATION
LFC Files
Responses Received From
Office of the State Engineer (OSE)
Energy, Minerals and Natural Resources Department (EMNRD)
SUMMARY
Synopsis of Bill
House Bill 1184 proposes to add a new section to Chapter 72, article 1 of the Water Code to
include physical properties and all thermal and chemical elements contained or dissolved in
natural waters of the state to the definition of natural waters subject to appropriation for
beneficial use, including physiochemical properties, heat, naturally occurring minerals, minerals
and chemicals added by human activity, and the chemical elements of hydrogen and oxygen.
There is no appropriation attached to this legislation.
SIGNIFICANT ISSUES
OSE states that this legislation appears to be an attempt to overcome recent court decisions in
state and federal courts ruling that geothermal heat is a mineral, which can be owned and
reserved by the United States under federal law. This bill proposes to do this by changing state
law to include geothermal heat and other mineral properties as part of the water owned by the
state. The bill proposes to assert state ownership over these resources by adding the physical
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2
properties and all elements of water as part of the natural resource, water, that can be
appropriated for beneficial use under state engineer permits and water rights under Chapter 72,
Article 1. However, the bill’s potential to change the definition of the beneficial use of water
under the Water Code may have unintended and potentially far-reaching effects upon the state
engineer’s administration and adjudication of water rights throughout the state.
OSE adds that to incorporate mineral, chemical and geothermal resources as components of the
overall resource of the “waters belonging to the public that are subject to appropriation for
beneficial use" could mean that the appropriation and beneficial use of these components of
water might create a right to water of a certain quality. This could result in expanding the
definition of impairment to include diminishment of any of these components of water. Further,
this expansion would have a significant impact upon the state engineer’s ability and authority to
issue permits for new appropriations or transfers of existing water rights. While a permit to
appropriate water is already required for diversions of water for activities related to the removal
or recovery of heat or minerals from water, the use of hot water recognized under a permit might
now be impaired if the temperature changes. This bill would change the nature of the
impairment analysis required before a permit to divert the water for use in the recovery or
extraction of these resources could be issued.
OSE advises that these resources are currently subject to the authority and regulation of other
state agencies, such as the Energy, Mineral and Natural Resources Department, which has
jurisdiction over the recovery of resources and geothermal resources, and the Environment
Department, which has jurisdiction over water quality, and any elements and properties of water,
including heat, which may be pollutants. Moreover, any mineral or element or heat content
contained in the water is subject to the Energy, Mineral and Natural Resources Department as
well as federal law and jurisdiction, such as the Federal Geothermal Steam Act of 1970, 30
U.S.C. §§ 1001-28, which can not be preempted by state law. The use of the State’s geothermal
resources are governed by the Geothermal Resources Act, §§ 19-13-1 to –28, and the
Geothermal Resources Conservation Act §§ 71-5-1 to –24. The Geothermal Resources
Conservation Act defines geothermal resources as “the natural heat of the earth or the energy, in
whatever form, below the surface of the earth present in, resulting from, created by or which may
be extracted from this natural heat and all minerals in solution or other products obtained from
naturally heated fluids, brines, associated gases and steam, in whatever form, found below the
surface of the earth, but excluding oil, hydrocarbon gas and other hydrocarbon substances."
NMSA 1978, § 71-5-3(A). The only exemption from this definition is an exemption from the
payment of royalties, not from the Act, for the incidental loss or extraction of heat in the
beneficial use of potable water where the water is 250 degrees Fahrenheit or less.
OSE concludes that the New Mexico Court of Appeals has recently held that construing § 71-5-
2.1 as defining geothermal resources more narrowly than the Federal Geothermal Steam Act
would violate the Supremacy Clause of the U.S. Constitution, which prohibits states from
modifying or changing existing federal law. Therefore, HB1184 cannot modify federal law or
affect federal jurisdiction over geothermal resources subject to the Federal Geothermal Steam
Act.
EMNRD notes that the legislation “may be subject to constitutional objections." Water is
defined as public property, and made subject to appropriation by Article XVI, Sections 2 and 3
of the New Mexico Constitution. Although the power of the legislature to provide by statute for
the administration of water rights is well established, the power to determine what constitutes
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3
water subject to these provisions may be the prerogative of the courts. The bill also, EMNRD
suggests, conflicts, or potentially conflicts, with various existing State statutes, and with public
and private property rights. Furthermore, it leaves unresolved many questions that would arise if
its provisions defining certain substances as water subject to appropriation are valid. EMNRD
presents the following discussion points as they apply to the various attributes and constituents of
water referred to in the bill.
(1) Physiochemical properties of water
. The bill does not define this term, and its meaning
is not readily apparent.
(2) Heat contained within water
. To the extent that the bill defines heat contained within
water as water subject to appropriation, it conflicts with Sections 71-5-1 through 71-5-24,
NMSA 1978 (the Geothermal Resources Conservation Act), which treats geothermal
resources as minerals and entrusts the Oil Conservation Division (OCD) with regulatory
authority over their production, and with Sections 19-13-1 through 19-13-28, which
provide for leasing of State lands for geothermal production. The legislature visited the
relationship between water use and geothermal resources previously in 2003 when it
enacted Section 71-5-2.1 NMSA 1978. That section provides that heat extracted from
water incidental to beneficial use of the water (if the water temperature is less than 250
degrees Fahrenheit) is not a geothermal resource. However, it does not undertake to define
the heat as water, or to make the heat itself subject to appropriation. Furthermore, it does
not apply to geothermal resources occurring at higher temperatures. This bill would seem
to define ALL geothermal resources as water subject to appropriation, and not minerals, as
other statutes assume they are.
(3) Naturally occurring minerals dissolved in water
. The ownership of minerals occurring
in solution in natural waters is unclear in New Mexico. To the extent, however, that the
courts decide that such minerals constitute "minerals" subject to separate ownership under
existing state and federal laws, the same considerations noted below in connection with
minerals dissolved in water due to human activities are implicated. This provision also
could interfere with the power to OCD to regulate the disposition of produced water (water
produced in connection with oil and gas operations) by use, an authority confirmed by
amendments to the Oil and Gas Act [Sections 70-2-12.B(15) and 70-2-12.1 NMSA 1978,
as amended]. Any use of produced water would require treatment to remove naturally
occurring minerals, and the bill might impact this process. How and to what extent the bill
would impact the regulation of produced water, or whether it would even apply to
produced water, is unclear.
(4) Minerals or chemicals dissolved in water due to human activities
. Under this
provision of the bill, minerals extracted by a leaching process whereby the minerals
become dissolved in water would themselves be water, subject to appropriation to
beneficial use, instead of being private property subject to disposition and sale, as they
undoubtedly would be if produced by some other method. This provision may conflict
with the provisions of the Fifth and Fourteenth Amendments to the United States
Constitution and with Article II, Sections 18 and 20 of the New Mexico Constitution,
prohibiting taking of private property without due process or without compensation.
Furthermore it may conflict with the proprietary rights of the United States and the State of
New Mexico under patent provisions reserving minerals to the state or federal
governments. Finally, although the bill makes minerals dissolved in water public property
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4
subject to appropriation, like the water itself, it does not expressly provide for extension of
the regulatory authority of the State Engineer (OSE) to appropriations of such minerals.
Thus the bill leaves uncertain whether, and to what extent, the OSE would have the power
or the duty to regulate appropriation and use of minerals extracted in this manner.
A separate problem involves the implications for environmental regulation of the concept
that minerals dissolved in water by human activity are subject to appropriation. Under this
concept, an appropriator of such minerals could acquire a private right to their continued
presence in the water that could conflict with regulatory requirements of the Environment
Department (ED) or OCD mandating abatement for the protection of water quality.
(5) The hydrogen and oxygen that form the chemical composition of water
. Although the
law as to ownership of hydrogen and oxygen extracted from natural water is not settled,
one would presume that ownership of and rights to these substances are identical to the
ownership of and rights to the water. Therefore this portion of the bill is probably not
problematic.
ADMINISTRATIVE IMPLICATIONS
OSE indicates that if this bill is interpreted to expand the existing definition of the beneficial use
of water within the state to include the beneficial use of the physical properties and all elements
of the water, there would be a significant, if not crippling, effect upon the ongoing adjudications
currently undertaken by the OSE. Each of the tens of thousands of water right claims under the
State’s eleven current adjudications may be subject to reevaluation and further claims to identify
the physical properties or elements to be protected from impairment. This, OSE suggests, could
bring adjudications to a virtual standstill. Additionally, administrative hearings on aggrieved or
protested applications for permits would be similarly hampered by the need to consider these
components of water as water subject to appropriation or impairment, as detailed in the
administrative implications for water rights administration.
OSE opines that the state engineer’s administration of water rights throughout the state may be
significantly impacted as well by an increase in the number of applications for permits to and
declarations of the appropriation of water for these additional beneficial uses. Further, if the state
engineer must consider these properties and elements as components of water under a water right
that may be subject to impairment, applications for new appropriations of water or to transfer
water rights would need to be evaluated for possible impacts upon the properties and elements of
water used under existing water rights. This would require the state engineer to obtain the
resources of experts in water chemistry, heat flow, etc. to review applications and existing water
rights uses. Such evaluations would be complex and add an even higher degree of uncertainty to
the current hydrologic evaluations conducted by the OSE.
EMNRD indicates that the bill would make questionable the authority of OCD to regulate
exploitation of geothermal resources occurring at temperatures above 250 degrees Fahrenheit, as
now provided in the Geothermal Resources Conservation Act. Further, To the extent that the bill
were interpreted as allowing private parties to acquire rights by appropriation to minerals
dissolved in water as a result of human activity, it could present obstacles to the implementation
of ED and OCD rules requiring abatement of water pollution to protect water quality.
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CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP
HB1184 is a duplicate to SB1125.
TECHNICAL ISSUES
OSE notes that the administration and adjudication of physical properties and thermal and
chemical elements of waters as part of the waters subject to appropriation under a water right
will require technology and technological expertise beyond the current scope of the OSE and the
OSE’s resources.
OTHER SUBSTANTIVE ISSUES
OSE The new section to the Water Code proposed by these bills would conflict with the
Geothermal Resources Act, §§ 19-13-1 to –28, and the Geothermal Resources Conservation Act
§§ 71-5-1 to –24, and the Environment Department’s jurisdiction over water quality and the
components of water which may be pollutants, as well as other statutes and agencies dealing with
the use of heat, minerals, and chemical elements that may be contained in, dissolved in, or
extracted from water.
WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL
OSE indicates that the state engineer will continue to administer and adjudicate water rights
based on the beneficial use of water, not the components of water, for irrigation, domestic,
residential, commercial and municipal uses throughout the state.
EMNRD suggests that high temperature geothermal resources will continue to be regulated by
OCD under the Geothermal Resources Conservation Act, and, to the extent found on State lands,
will be subject to existing statutes providing for leasing of these resources and payment of
royalties to the State. Questions involving ownership of and rights to other attributes and
constituents of water will be left for resolution by the courts in accordance with the common law.
BFW/mt