Analysis

Synopsis:

 House Memorial 10 (HM 10) requests the state engineer to establish or otherwise define the type of facts and public policy that will determine whether granting an application for a new appropriation of water will be detrimental to the public welfare of the state.

Analysis:

 House Memorial 10 (HM 10) requests the state engineer to establish or otherwise define the type of facts and public policy that will determine whether granting an application for a new appropriation of water will be detrimental to the public welfare of the state.

HM 10 finds:
•	All sole source aquifers in New Mexico are mined because diversions exceed their recharge, and the water supply is finite;
•	Almost uniformly, cities, towns and communities relying on sole source aquifers are constrained geographically and by the cost of engineering necessary to access alternative water supplies;
•	The state engineer’s (OSE)  policy of granting new appropriations from sole source mined aquifers or portions of such aquifers based on the preservation of the water supply sufficient to sustain existing water rights for forty years depletes a sole source aquifer’s fully appropriated water supply to the detriment of prior appropriators and impairs their prior rights to the water supply;
•	OSE decisions to grant new appropriations are conscious decisions to deplete the water supply more quickly;  
•	The statutory requirement that a new appropriation of water be determined to not be detrimental to the public welfare was added to the Water Code in 1985;
•	OSE staff are not informed of, educated on, trained in, or provided written directives for determining whether an application for a new appropriation will be detrimental to the public welfare of the state if granted;
•	Applicants and protesters are without guidance as to the factors used by the OSE in determining whether the granting of an application will be detrimental to the public welfare of the state; and
•	The OSE needs to provide a specific rationale as required by law so that the term not detrimental to the public welfare of the state will develop and be understood by the OSE, its staff, applicants, protestants and the courts.

HM 10requests: 
•	The OSE not accept for filing applications for new appropriations or to stay action on all pending applications for new appropriations either of which will result in new depletions to aquifers, or portions thereof, determined by the state engineer to have a forty-year or less supply of water to sustain existing prior appropriators until such time as the state engineer has established or otherwise defines the term detrimental to the public welfare;
•	The OSE to stay action on all pending applications for new appropriations that have been docketed by the OSE’s hearing unit and that will result in new depletions to aquifers, or portions thereof, determined by the OSE to have a forty-year or less supply of water to sustain existing  prior appropriators until the OSE establishes criteria to determine whether the granting of an application will be detrimental to the public welfare, unless the OSE explicitly sets forth findings of fact and policies for the basis for the OSE's determination in each pending case as to whether the application will not be detrimental to the public welfare of the state if granted; and
•	The governor and state engineer receive copies of HM 10.

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