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F I S C A L I M P A C T R E P O R T

SPONSOR King

ORIGINAL DATE

LAST UPDATED

2-10-06 HB HJM53

SHORT TITLE Engineer Evaluation of Groundwater Transfers

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Office of the State Engineer – Interstate Stream Commission (OSE)

SUMMARY

Synopsis of Bill

House Joint Memorial 53 requests that the state engineer consider the availability of water sup-

plies within the basin to which water is proposed to be exported, when evaluating applications to

export ground water out of its basin of origin.

Specifically the memorial notes that:

•

certain governmental entities are considering or have considered policies to mine

and export ground water from closed basins, such as the Estancia basin, which

are often the sole water supply sources for communities; and

•

the ground water resources of these basins are not renewable and will not be re-

plenished because they are being mined; and

•

the exportation of ground water from these basins has the potential to shorten

their productivity; and

•

the Estancia basin regional water plan provides that the exportation of ground

water is contrary to the greater interest of the planning area and that it must be

House Joint Memorial 53 – Page

2

aggressively discouraged and opposed; and

•

the ground water of the Estancia basin constitutes the sole potable water supply

upon which the communities in the basin depend; and

•

the local governments of Moriarty, Estancia, Mountainair, Edgewood and Tor-

rance county and local residents of the Estancia basin have joined together in op-

posing increased mining and exportation of ground water from the Estancia ba-

sin; and

•

the boards of county commissioners of Torrance, Bernalillo and Santa Fe coun-

ties have actively discouraged the exportation of any ground water from the Es-

tancia basin; and

•

during the hearings on the regional water plan and the Torrance county compre-

hensive ordinance, the residents of the Estancia basin consistently voiced their

opposition to the exportation of water from the Estancia basin, fearing that expor-

tation will both impair the existing water rights and be detrimental to the plan-

ning regions' public welfare; and

•

the state engineer has administratively designated parts of the Estancia basin as a

critical management area, curbing domestic and other uses of water; and

•

there is uncertainty regarding the maximum amount of ground water that will be

placed to beneficial use in any given year within the Estancia basin, and all stud-

ies conclude that current existing diversions from the aquifer exceed the rate at

which it is being recharged; and

•

the continued and future economic existence of the Estancia basin communities

is dependent on a reliable, if not entirely sustainable, water supply; and

•

some ground and surface water basins have access to reliable, renewable sustain-

able water supplies from renewable stream systems and have the ability to ac-

quire water rights within those systems and also have sufficient ground water re-

sources to sustain their current and projected growth needs; and

•

the public welfare of the state of New Mexico is served by requiring other basins

to develop the available surface and ground water resources within their own ba-

sins rather than mining the nonrenewable ground water resources in the rural Es-

tancia basin and depriving fellow New Mexicans, including ranchers, farmers

and local governments, of a future.

The memorial resolves that the exportation of mined ground water from a closed ground water

basin be consistent with the public welfare of New Mexico and not contrary to the planning ob-

jectives set forth in a regional water plan, and that the state engineer require that any application

to export ground water from a mined ground water basin be supported by demonstrable need of

the importing basin and proof that there are no alternative in-basin sources of water to supply the

importing basin.

House Joint Memorial 53 – Page

3

The memorial further resolves that the state engineer be requested to adopt the above provisions

as part of the process for evaluating applications proposing to export ground water from the Es-

tancia basin.

There is no appropriation attached to this legislation.

SIGNIFICANT ISSUES

The Office of the State Engineer – Interstate Stream Commission (OSE) indicates that water

rights in New Mexico are individual property rights and therefore may be sold by the owner.

While the state engineer does not allow transfer of groundwater rights from one underground ba-

sin to another, the water itself can be physically exported – if the exportation is done pursuant to

a permit issued by the state engineer and in accordance with rules and regulations of the state

engineer and state statutes. The state engineer regulates the use of water in the state – the place

and purpose of use, etc. - through the permit process. To change any element of a water right

including place of use (such as from one basin to another), the public must be given notice of the

proposed change in accordance with §72-12-3 NMSA 1978 and be afforded the right to file ob-

jections with the state engineer regarding the proposed change on the bases of impairment, con-

servation of water within the state, or public welfare. After the expiration of the time for filing

objections, if no objections have been filed, the state engineer shall, if he finds that proposed ap-

propriation would not impair existing water rights from the source, is not contrary to conserva-

tion 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.

ADMINISTRATIVE IMPLICATIONS

OSE suggests that this joint memorial, if passed, contemplates that the State Engineer would ver-

ify that the application to export water is supported by “proof” of a need in the basin to which

groundwater is to be imported for water from the basin from which the groundwater is to be ex-

ported. The applicant also would have to show “proof” that there are no alternative in-basin wa-

ter sources available. The memorial is not clear as to what is to be done if the proof is not ade-

quate or what type of proof is required.

OTHER SUBSTANTIVE ISSUES

OSE notes that this joint memorial addresses the concept of “public welfare”. The joint memo-

rial discusses public welfare in the evaluation of water rights applications only in regards to the

source of the water. It does not address public welfare in regards to the proposed place(s) of use

of the water. The water statutes use the term “public welfare” but do not provide a specific defi-

nition. For water rights applications evaluations, the state engineer must consider the welfare of

the people of the entire state – not one area of the state versus another area of the state.

BW/mt