BY MAIRE O’NEILL
A bill introduced by Rep. Christine Chandler, Sen. Leo Jaramillo and Sen. Peter Wirth last week in the House Agriculture and Water Resources Committee would ensure the State Engineer follows procedural due process as required by the Water Leasing Act as well as the state and federal constitutions. HB 30 made it out of committee by a 5-4 vote.
Water rights owners have a property interest in those rights, Chandler told the committee.
“The owner has a statutory and constitutional right to protect their property interests from actions done by others that have the potential for impairment. The right to protect and have a hearing before a lease takes effect is an essential procedural protection for all water rights owners in the state. The leasing act provides the process that must be followed,” she said.
Chandler noted that a practice had been developed in the State Engineer’s Office “a few state engineers ago” that circumvents the Act.
“That practice continues today. Currently the State Engineer frequently relies on a preliminary process that allows immediate use of water through a lease when it has not received final approval. There has been no hearing even when a protest of that lease application is pending. This practice violates due process as well as the Leasing Act. HB 30 ensures that the Office of the State Engineer complies with the Leasing Act and our state and federal constitutions,” she said.
Chandler proposed an amendment to delay the implementation of the language being added to the statute for two years.
“This would allow those entities and individuals and the State Engineer who has been relying on this preliminary approval process to adjust and make alternate arrangements through the Leasing Act. We recognize that unfortunately there has been a proliferation of this preliminary use process, which frankly never should have happened, but in an effort to accommodate people who have been relying on it, we’re allowing a delay in implementation of this provision so that they can make adjustments as can the state engineer,” she said.
Sen. Leo Jaramillo reminded the committee that acequias have played a critical role in the state.
“There are nearly 700 functioning acequias in New Mexico – 220 of them are in my home county of Rio Arriba. They are not only a part of our cultural heritage but also my community’s, Senate district’s and state’s lifeline,” he said. “Our communities receive an abundance of benefits from belonging to an acequia. They are a very important part of our culture and are important to the social fabric of our resilient communities. As New Mexicans, we’re raised acknowledging that acequia and water es vida, and that we must work collaboratively to share and protect our scarce and sacred resource.”
Jaramillo said acequias are not only intertwined with New Mexico’s rich pueblo, Hispano and agriculture history, but that they have also brought communities and neighbors together for generations.
“The most unique aspect of acequias is that they require the community to come together to make decisions about water usage and to problem solve. I appreciate the hard work that Rep. Chandler and Sen. Wirth have put in to getting an exception to acequias in the past and I equally appreciate the hard work of every New Mexican who values and upkeeps our acequia model – a model that brings everyone to the table to have discussions with those affected and to work collaboratively to address issues and most importantly, to come up with solutions. The acequia model of collaboration is an example of that as we continue to work in collaboration,” he said.
Jaramillo said the purpose of this bill is to ensure fairness and due process in water lease applications to the State Engineer.
It is important to note that this legislation does not remove the ability of entities such as cities, industry, farms or community water systems to lease water. Water leases are an important water management tool in New Mexico. What HB 30 does is help the State Engineer work within the existing legal requirements and provides clarity to entities seeking to lease water about the statutory requirements protecting existing water rights,” Jaramillo said. “HB 30 also incentivizes entities in engaging in water planning to meet their water needs.”
Sen. Peter Wirth noted that the bill has been around for a while, that he had carried it in 2015 when it passed the Senate 29-9 but never got a hearing in the House.
“We’ve had this discussion for some time. This is an issue that really needs to get resolved,” he said, adding that since the last session there is a pending action on appeal that involves a major piece of water litigation over exactly this statute.