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F I S C A L I M P A C T R E P O R T
SPONSOR Cisneros
ORIGINAL DATE
LAST UPDATED
2-20-07
2-26-07 HB
SHORT TITLE Water Management Plans for Certain Entities
SB 1118/aSCONC
ANALYST Woods
APPROPRIATION (dollars in thousands)
Appropriation
Recurring
or Non-Rec
Fund
Affected
FY07
FY08
NFI
NFI
(Parenthesis ( ) Indicate Expenditure Decreases)
Duplicates HB 1234
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 SCONC Amendment
Senate Conservation Committee amendment to Senate Bill 1118 amends the legislation to reflect
the following language:
1. On page 1, line 13, strike "MANAGEMENT" and insert in lieu thereof "DEVELOPMENT".
2. On page 3, line 4, strike "management" and insert in lieu thereof "development".
3. On page 3, line 6, strike "management" and insert in lieu thereof "development".
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."
pg_0002
Senate Bill 1118/aSCONC – Page
2
4. On page 5, line 23, strike "management" and insert in lieu thereof "development".
5. On page 5, line 24, strike "management" and insert in lieu thereof "development".
6. On page 6, line 3, strike "management" and insert in lieu thereof "development".
7. On page 6, line 10, strike "management" and insert in lieu thereof "development".
The amendment adds no appropriation language to the bill.
Synopsis of Original Bill
Senate Bill 1118 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.
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 SB1118 will incur additional expenses if SB1118 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
pg_0003
Senate Bill 1118/aSCONC – Page
3
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;
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
2
http://www.ose.state.nm.us/isc_regional_plans.html
pg_0004
Senate Bill 1118/aSCONC – Page
4
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. SB1118 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.
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 SB1118. 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 SB1118. 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
pg_0005
Senate Bill 1118/aSCONC – Page
5
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/mt