2023 New Mexico Statutes › Chapter 72 - Water Law › Article 1 - Water Rights in General › Section 72-1-2.4 - Pecos river; purpose; conditions for expenditures.

A. The purpose of this section is to achieve compliance with the Pecos River Compact [72-15-19 NMSA 1978], establish a base flow of the Pecos river of fifty cubic feet per second at the Artesia bridge and provide a reliable annual irrigation supply of ninety thousand acre-feet of water for delivery of three acre-feet per acre of irrigated land in the Carlsbad irrigation district and for adequate water to fulfill delivery requirements to the Texas state line pursuant to the Pecos River Compact.
B. The interstate stream commission shall determine the need for projects to be funded with the appropriations for compliance with the Pecos River Compact and may expend funds for the purchase of land with appurtenant water rights or rights to the delivery of water and to take other appropriate actions that would effectively aid New Mexico in compliance with the United States supreme court amended decree in
Texas v. New Mexico
, No. 65 original.
C. The interstate stream commission shall not expend any funds for the purchase of land with appurtenant water rights or rights to the delivery of water unless the commission has entered into contracts with the governing bodies of the Carlsbad irrigation district, the Pecos valley artesian conservancy district and the Fort Sumner irrigation district that specify the actions the parties agree will be taken or avoided to ensure that the expenditures will be effective toward permanent compliance with New Mexico's obligations under the Pecos River Compact and amended decree.
D. Expenditures for the purchase of land with valid appurtenant water rights or rights to the delivery of water shall be made only from willing sellers within the lower Pecos river basin downstream from Sumner reservoir for projects that comply with the following criteria:
(1) land with appurtenant water rights or with rights to the delivery of water shall be purchased in each of the following areas of the lower Pecos river basin:
(a) from Sumner reservoir to Acme, to the extent that willing sellers elect to participate and any affected irrigation district agrees to change its operations, as necessary, so the acquired rights effectively increase downstream flows of the Pecos river;
(b) from Acme to Brantley dam; and
(c) with first priority placed in the area from Brantley dam to the state line contingent upon the adjudication or settlement of the surface water claims by or within the Carlsbad irrigation district;
(2) the interstate stream commission shall purchase with the first available funding six thousand acres of land having rights to the delivery of water by the [Carlsbad irrigation] district or valid appurtenant water rights in approximately equal purchase increments from:
(a) assessed land within the Carlsbad irrigation district; and
(b) irrigated land located between Brantley dam and Sumner reservoir; and
(3) subsequent to the purchase of the first six thousand acres of land, the interstate stream commission shall use all future appropriations that are available for the purchase of land with appurtenant water rights or rights to the delivery of water such that no more than one acre of land within the Carlsbad irrigation district may be purchased for every three acres of land purchased between Brantley dam and Sumner reservoir.
E. The interstate stream commission shall prepare a comprehensive request for bids from owners of land with appurtenant water rights or rights to the delivery of water, shall evaluate and compare the bids and shall make offers to contract in response to the bids. The request for bids shall:
(1) provide for competition among the owners of land from whom bids are requested to sell their land with appurtenant water rights or rights to the delivery of water;
(2) contain criteria to address the priority of the purchases based on the effectiveness of the purchased land with appurtenant water rights or rights to the delivery of water in increasing the flows of the Pecos river and to address the different value of water rights associated with the degree of seniority of the water rights;
(3) provide for the purchase of up to six thousand acres of land assessed by the Carlsbad irrigation district having rights for the delivery of water; and
(4) provide for the purchase of land upstream from the Carlsbad irrigation district in amounts necessary to comply with the requirements of this section.
F. The interstate stream commission shall evaluate all bids and shall offer to contract with all sellers whose offers to sell comply with the criteria required by this section, comply with the bid conditions and are determined by the interstate stream commission to be most advantageous to increase the flows of the Pecos river and comply with the Pecos River Compact and amended decree.
G. Contracts shall be contingent upon the interstate stream commission receiving sufficient appropriations to close the purchases.
H. In the event the interstate stream commission determines that the total Pecos river rights it has purchased with appropriations made by the legislature for that purpose are in excess of those rights permanently needed for compliance with New Mexico's obligations under the Pecos River Compact, then the commission shall offer the excess land with appurtenant water rights or rights to the delivery of water first to the original owner at the original point of diversion and for the original place and purpose of use. Lands shall be offered for sale in the order in which they were acquired by:
(1) sending a written offer to sell to the last known address of the owner by certified mail, which offer shall remain open for at least sixty days from the date of the mailing;
(2) including in the offer to sell a notice that if the offer is not accepted by the original owner within a stated time pursuant to this subsection, the offer will be deemed rejected and automatically withdrawn and made available for purchase at the current market price; and
(3) depositing the revenue from sales into the New Mexico irrigation works construction fund.
History:
Laws 2002, ch. 94, § 2.
ANNOTATIONS
Effective dates.
— Laws 2002, ch. 94 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 15, 2002, 90 days after adjournment of the legislature.
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Cross references.
— For New Mexico irrigation works construction fund,
see
72-14-23 NMSA 1978.
Purchase of water rights.
— Section 72-1-2.4 NMSA 1978, which appropriates funds to purchase land with appurtenant water rights or rights to the delivery of water as a substitution for enforcement of priorities, does not violate the anti-donation clause because the state receives present value for its purchase even though subsequent priority calls may diminish the value.
State ex rel. State Eng'r v. Lewis
, 2007-NMCA-008, 141 N.M. 1, 150 P.3d 375.
Authority to approve water resource management plan.
— A district court has the authority under Section 72-4-19 NMSA 1978 to approve a water resource management plan that is authorized by this section.
State ex rel. State Eng'r v. Lewis
, 2007-NMCA-008, 141 N.M. 18, 150 P.3d 375.
Remedying past failures to perform.
— There is nothing in the nature of compacts generally or of the Pecos River Compact in particular that counsels against rectifying a failure to perform in the past as well as ordering future performance called for by the compact.
Tex. v. N.M.
, 482 U.S. 124, 107 S. Ct. 2279, 96 L. Ed. 2d 105 (1987).
The matter of remedying past water shortages caused by New Mexico's underdeliveries was returned to a special master for such further proceedings as he deemed necessary and for his ensuing recommendation as to whether New Mexico should be allowed to elect a monetary remedy and, if so, to suggest the size of the payment and other terms that the state must satisfy.
Tex. v. N.M.
, 482 U.S. 124, 107 S. Ct. 2279, 96 L. Ed. 2d 105 (1987).
Decree ordering state to comply with compact and appointing river master.
Tex. v. N.M.
, 485 U.S. 388, 108 S. Ct. 1201, 99 L. Ed. 2d 450 (1988).