Abstract

New Mexico recently enacted legislation prohibiting the transfer of a water right from one use or place to another where the effect of the transfer would be "detrimental to the public welfare or contrary to the conservation of water." New Mexico's statute, like similar statutes in other western states, simply adds public welfare and conservation impacts to other potential impacts that must be considered by the hearing officer or judge in ruling on a transfer application. This paper examines the concept "public welfare" and the question of who should define it with respect to water use. Specifically, the paper asks whether a fair determination of the public welfare can be made in the administrative/judicial arena.

As background, the authors first summarize New Mexico water law, highlighting the transfer process. Next, they describe the procedure for decisions allocating New Mexico's water resources and present an array of values that might be included in defining public welfare in water allocation. Finally, the authors conclude that, in water transfers, public welfare interests can be determined best at the local level through a regional water planning process.

This process, which is already underway in New Mexico, gives citizens from all segments of a regionally-defined community the opportunity to articulate their own preceptions and values as to the appropriate ways of allocating available water supplies. The authors propose that plans produced through this process be given strong consideration by judicial or administrative decision makers allocating water resources. Such an approach would expedite transfer proceedings by increasing public confidence in the fairness of the procedure and by reducing uncertainty as to the public welfare standards that would apply.

Authors' note: The following summary is not meant to stand as a complete review of New Mexico water law, but, rather, as a description of the scope and general character of that law as it pertains to water rights transfers. The purpose of the summary is to provide a legal framework for the discussion of public welfare issues in the paper's core sections.

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