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SPONSOR: |
Begaye |
DATE TYPED: |
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HB |
786 |
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SHORT TITLE: |
Limit New Water Appropriations and Changes |
SB |
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ANALYST: |
Chabot |
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APPROPRIATION
|
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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|
|
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NFI |
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|
|
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(Parenthesis
( ) Indicate Expenditure Decreases)
LFC Files
Responses
Received From
Attorney
General (AG)
Energy,
Minerals and Natural Resources Department (EMNRD)
Department
of Game and Fish (DGF)
Office
of Indian Affairs (OIA)
Office
of the State Engineer (OSE)
State
Land Office (SLO)
SUMMARY
Synopsis
of Bill
House Bill 786 limits
the State Engineer’s power to approve new water appropriations or changes in
place or purpose of use. The State
Engineer would have to ensure the following new requirements for administering
water: there are no water rights in the
system held by an Indian nation, tribe or pueblo; the water rights held by an
Indian nation, tribe or pueblo have been quantified by adjudication; and, a
monitoring system is in place and the stream system is actively administered by
priority.
Significant
Issues
This bill may have
far-reaching implications. It may lead
to pressures to complete adjudications on the
OSE states “water
right application processing would come to a halt in
OSE states there is no
basis for this bill since the Indian nations, tribes and pueblos have the opportunity
to protest any applications which may affect their water rights.
AG concludes if the bill is enacted, it “would
effectively shut down development and transfer of water rights in most places
in
EMNRD reports that this bill would shutdown
water right applications and transfers on all stream systems that have Indian
entity claims. It further states “a
moratorium on transfers would freeze economic development and would deny cities
the ability to acquire water rights to meet growing needs.” It continues “if the State Parks Division
were unable to apply to the State Engineer for approval to change the place and
purpose of use of its water rights in conjunction with the operation of any of
those parks, its ability to respond to ever changing needs and urgent demands
for water (such as for fire protection and health and sanitary uses) and for
the thousands of visitors who come to state parks each year expecting an
adequate water supply would be completely denied, and could result in parks
being closed to public access indefinitely.”
DGF states that the State Game Commission is a
land and water rights owner and this bill could restrict the commission in
using these rights.
SLO opines the bill is unconstitutional because
it stops new appropriations of unappropriated water and may conflict with the
United States Constitution equal protection clauses.
FISCAL IMPLICATIONS
There is no direct
fiscal impact to the governing entities.
The State Engineer will need to complete adjudications but this cost is
not caused by this bill. However, it may
require moving forward anticipated expenditures for the out-years. There maybe costs to water right owners who
will be prevented in selling or leasing land and appurtenant water rights until
adjudications are completed.
CONFLICT
OSE states that this
bill conflicts with the New Mexico Constitution and Sections 72-5-6, 72-5-7,
72-5-24, 72-5-25, 72-12-1, 72,12-3, 72-12-3.1, 72-12-7, 72-12-22, 72-12-34 and
72-12-24 NMSA.
SLO concludes the bill
conflicts with Article XVI, Section 2 of the New Mexico Constitution.
TECHNICAL ISSUES
The term “stream system” is not defined and it
is unclear if it includes associated groundwater. The bill also does not define “fully
monitored” and “actively administered”.
SLO recommends adopting a joint memorial that
recognizes the need to resolve Indian water rights issues and require OSE
expedite the adjudication.
POSSIBLE QUESTIONS
GAC/ls