Acequia de La Puebla
El Agua es Vida
ACEQUIA DE LA PUEBLA BYLAWS, amended 2021
• Preamble: Water is the lifeblood of our communities. The parciantes of Acequia de La Puebla believe that water should be protected as a community resource so that future generations can grow food and can have a healthy and secure source of water for needs within the community. We seek to promote agriculture by preventing the severance of water rights from irrigated land. If changes in historic uses of water become necessary, those decisions should be made through a cultural and spiritual connection to our community and through our own process of self governance so that those decisions can be made for the common good. We honor the ancient customs and traditions embodied in our Acequia and seek to govern our Acequia to continue the connection between our land, water and culture in perpetuity.
Acequia de La Puebla Bylaws, Approved 12/18/21
Table of Contents
Article 1
Purpose and Membership
Section 1.1
Purpose StatemenT
Section 1.2 Compliance with New Mexico Law
Section 1.3 Description
Section 1.4 Membership - Parciantes
Article 2 Officers
Section 2.1 Types of Officers
Section 2.2 Duties of Officers
Section 2.3 Vacancy of Mayordomo
Section 2.4 Vacancy of Commissioners
Section 2.5 Compensation of Mayordomo
Section 2.6 Compensation of Commissioners
Article 3 Meetings of Membership
Section 3.1 Annual Membership Meeting
Section 3.2 Notice of Annual Membership Meetings
Section 3.3 Purpose of Annual Membership Meetings
Section 3.4 Location of Meetings
Section 3.5 Quorum of Membership
Section 3.6 Special Membership Meetings
Section 3.7 Special Commission Meetings
Article 4 Elections and Voting
Section 4.1 Voting Rights of Parciantes
Section 4.2 Election of Officers
Section 4.3 Nomination of Officers
Section 4.4 Terms of Office
Article 5 Management and Operations
Section 5.1 Allocation Between Neighboring Acequias
Section 5.2 Spring Acequia Cleaning
Section 5.3 Allocation of Water Between Parciantes
Section 5.4
Parciante Assessments
Section 5.5 AdLP Infrastructure
Article 6 Rights and Obligations of Parciantes
Section 6.1 Maintenance of Headgates
Section 6.2 Payment of Assessments
Section 6.3 Participation in Acequia Cleaning and/or Emergency Repairs
Section 6.4 Compliance with Bylaws
Section 6.5 Public Inspection of Acequia Records
Section 6.6 Copy of Bylaws
Section 6.7 Name and Address in Acequia Records
Section 6.8 Change of Ownership
Section 6.9 Change in Point of Diversion, Purpose of Use, or Place of Use
Article 7
Easements
Section 7.1 Definition of Easement
Section 7.2 Maintenance of Easement
Section 7.3 Access to Easement
Section 7.4 Changes to Acequia
Article 8 Enforcement
Section 8.1 Assessment Delinquencies
Section 8.2 Illegal Use of Water or Acequia Interference
Section 8.3 Violation of Easement Rights
Article 11 Miscellaneous Provision
Section 11.1 Amendments
to Bylaws
Section 11.2
Applicability to State Law
Section 11.3 Severability Clause
Acequia de La Puebla Bylaws, Approved 12/18/2021
Article 1 -
Purpose and Membership
Section 1.1 Purpose Statement
The purpose of Acequia de La Puebla is to:
1. promote the
agricultural uses of water on the lands served by the Acequia,
2.
promote the efficient and beneficial use of water,
3. sustain customs
and traditions of providing water to parciantes in a manner that is fair
and equitable,
4. protect and defend the rights and interests of the
Acequia and the parciantes,
5. maintain the infrastructure and
easements of the Acequia de La Puebla, and
6. maintain an adequate
diversion right to ensure a sufficient water supply for parciantes.
Section 1.2 Compliance with New Mexico
Law
The management and operation of Acequia de La Puebla
shall be in compliance with State of New Mexico Statutes (predominately
Chapter 72 – Water Laws and Chapter 73 - Special Districts, Article 2 -
Ditches or Acequias, Sections 73-2-1 through 73-2-68) and the customs of
the Acequia de La Puebla.
Acequias are local governmental entities or
“political” subdivisions under Section 73-2-28 NMSA 1978.
Section 1.3 Description
Name of Ditch:
ACEQUIA DE LA PUEBLA aka La Puebla Community Ditch aka Acequia de La
Puebla Community Ditch Association
State Engineer File No.:
1659
Priority: Reserved for later determination by the Court.
Point of Diversion: Through a1nd by means of the Acequia de La Puebla
located in the Santa Cruz Grant. The
position of this diversion on
the New Mexico Coordinate System, Central Zone, is:
X=583,855 and
Y=1,819,880, Santa Fe County, New Mexico.
Duty of Water: Not to
exceed 2.8 acre-feet on a total of 364.16 acres irrigated.
Amount of
Water: Not to exceed a total of 1,019.65 acre-feet in anyone year, plus
such reasonable conveyance loss from the point of diversion from the Rio
de Santa Cruz to the individual farm headgates as may be determined
hereafter by the Court.
Section 1.4 Membership - Parciantes
The parciantes, or members, of Acequia de La Puebla are those persons
who own irrigable land with water rights from the Acequia.
A
membership in AdLP constitutes the parciantes or members within each
household or co-tenancy arrangement (land co-owned by more than one
person) regardless of the number of separate properties owned. Each
membership shall have one (1) vote regardless of acreage.
Article 2 -
OFFICERS
Section 2.1
Types of Officers
The officers of Acequia de La Puebla shall
consist of three Commissioners and one Mayordomo, each of whom shall be
a member of the Acequia, as defined in Article 1. Per Sections 73-2-12
and 73-3-1 NMSA 1978, the Commissioners shall consist of a Chairman,
Secretary, and a Treasurer.
Section 2.2 Duties of
Officers
Per Sections 73-2-31 and 73-3-4 NMSA 1978:
Chairman: The Chairman is responsible for directing
activities of the Acequia de La Puebla jointly with the other
Commissioners, and for calling and presiding over all Acequia meetings.
In the event the Chairman is unable to preside at a meeting, he will
appoint one of the other Commissioners to preside over the meeting.
Secretary: The Secretary is responsible for keeping
complete and accurate records, minutes of meetings, reading the minutes
of the previous meeting and assisting the other Commissioners in running
the business affairs of the Acequia de La Puebla.
Treasurer: The Treasurer is responsible for management of the
finances of the Acequia de La Puebla including
the following:
1.
Send notices to parciantes for billing of and collection of assessments
and fines.
2. Maintain accurate records for each parciante including
assessments due, hours worked and fines due in
coordination with the
Mayordomo.
3. Make payments for labor and materials as necessary.
4. In coordination with the Mayordomo, prepare an annual financial
report to be presented to the
membership.
5. Keep and protect all
monies that will come into his/her possession from collections for work,
delinquencies
and fines or any other assessments. These monies shall
be used for the benefit of the Acequia de La Puebla.
They will not be
spent without the consent of the Chairman and approval of the Secretary
and Treasurer.
Mayordomo: The Mayordomo shall
work under the direct supervision of the Commissioners. The Mayordomo
shall be an executive official of the ditch and will assign the water
among the parciantes. His or her
responsibilities shall be as
follows:
1. Coordinate and supervise all work on the Acequia de La
Puebla including the annual Spring cleaning, day-today
maintenance,
and emergency repairs. This includes the cleaning of the ditch, side
banks, diversion dam,
valves and sluice ways to insure a smooth and
efficient operation without loss of time and water.
2. Distribute
water to parciantes in a manner that is equitable and is consistent with
the customs of the
Acequia de La Puebla. To assign, and keep record,
of the water assigned to the parciantes.
3. Collect delinquencies
from parciantes as reported to him by the Treasurer.
4. Supervise the
Acequia de La Puebla to ensure that delinquent parciantes do not take
water illegally. The
Mayordomo has full authority to shut the
individual headgate along the banks of the Acequia de La Puebla of
those parciantes who are delinquent and to secure the headgates by any
available means.
5. To patrol the acequia and keep it clear of
obstructions and weeds.
Section 2.3 Vacancy of Mayordomo
In the event of a vacancy in the office of Mayordomo, the Commissioners
shall appoint a Mayordomo to hold office for the remainder of the term
or until his successor is elected at a meeting of the membership.
Section 2.4 Vacancy of Commissioners
In the
event of a vacancy in the office of Commissioner, the remaining Acequia
de La Puebla Commissioners shall appoint a Commissioner to hold office
for the remainder of the term or until his successor is elected at a
meeting of the membership. If there are two vacancies for Commissioner,
the remaining Commissioner shall convene a special meeting of the
membership to fill the vacancies for the remainder of the term of
office.
Section 2.5 Compensation of Mayordomo
Per Sections 73-2-18 and 73-3-2 NMSA 1978, compensation of the Mayordomo
shall be determined by a majority of the membership.
Section 2.6 Compensation of Commissioners
Per Section
73-2-68 NMSA 1978, the members of the acequia commission shall be paid
in accordance with the Per Diem and Mileage Act [ 10-8-1 to 10-8-8 NMSA
1978] and shall receive no other compensation, perquisite or allowance.
Article 3 - MEETINGS
OF MEMBERSHIP
Section 3.1 Annual Membership Meeting
The Annual Membership Meeting
shall be considered a Regular Meeting per OMA and shall be held on the first
Monday of December or as soon as practicable thereafter.
Section
3.2 Notice of Annual Membership Meetings
All meetings of the AdLP
shall be held in compliance with the “Open Meetings Act,” NMSA 1978, Sections
10-15-1 to 10-15-4, and shall determine annually what constitutes "reasonable
notice" for its meetings in an “Open Meetings Act Resolution.”
Notice shall
be provided to each parciante by mail and email to the address in the records of
the Acequia de La Puebla, and posted in a public place ten days in advance of
the meeting. Notice of the meeting shall include the date, time, location, and
the agenda or information about where to obtain a copy of the agenda.
Section 3.3 Purpose of Annual Membership Meetings
At each
Annual Meeting, the Secretary shall present the minutes from the previous Annual
Meeting. The Mayordomo shall report on the management and operations of the
Acequia de La Puebla and the Treasurer shall provide a financial report.
Section 3.4 Location of Meetings
Each Membership or
Commission meeting shall be held at a public place in Rio Arriba or Santa Fe
County.
Section 3.5 Quorum of Membership
A quorum for
conducting any business shall be 5% of the membership who are in good standing
(i.e. who have paid all AdLP assessments and who are in compliance with AdLP
Bylaws, 2021). A quorum, once established for that particular meeting, shall
remain in effect to transact all business set on the agenda even though
parciantes shall voluntarily leave the meeting.
In the event that a quorum is
not established at a meeting duly called, those assembled shall recess for a
period of not less than three (3) calendar days but not more than fourteen (14)
calendar days, wherein the meeting shall resume at the time and place specified
at the call of the recess. All business listed on the original agenda shall be
transacted provided there is a quorum of eight (8) parciantes in good standing
present
at the meeting.
Section 3.6 Special Membership
Meetings
Special meetings of the Acequia de La Puebla may be called
by the Commissioners or upon written petition to the Commission Chairman signed
by 5% of the parciantes in good standing. Per OMA, Special Membership meetings
shall be posted at least three days prior to the meeting and in compliance with
the Annual OMA Resolution.
Section 3.7 Special Commission
Meetings
Special meetings of the Commission may be called by the
Chairman. Two Commissioners shall constitute a quorum for such meetings. Per
OMA, Special Commission meetings shall be posted at least three days prior to
the meeting and in compliance with the Annual OMA Resolution.
Article 4 -
ELECTIONS AND VOTING
Section 4.1 Voting Rights of Parciantes
Per Sections
73-2-14 and 73-3-3 NMSA 1978, only those parciantes in good standing
(i.e. who have paid all AdLP assessments and who are in compliance with
AdLP Bylaws, 2021) shall be allowed to vote.
For voting purposes,
each household or co-tenancy arrangement (land co-owned by more than one
person) constitutes one membership, regardless of the number of separate
properties owned. Each membership shall have one (1) vote regardless of
acreage.
No proxy voting will be allowed.
Section 4.2
Election of Officers
Per Sections 73-2-12, 73-2-15, and
73-3- 1 NMSA 1978, the Commissioners and Mayordomo shall be elected at
the Annual Meeting of odd-numbered years by a vote of the membership in
good standing. The elections shall be conducted by the outgoing
Commissioners, and the new officers shall assume their responsibilities
not later than the first Monday of the month following when they are
elected.
Section 4.3 Nomination of Officers
Nomination of officers may be made by any parciante. The three
Commissioners shall be elected at-large. At the end of the Annual
Meeting in which the election is taking place, the three newly-elected
or re-elected Commissioners shall elect from amongst themselves a
Chairman, Secretary, and Treasurer, with each Commissioner holding one
position.
Section 4.4 Terms of Office
The
term of office for each of the Commissioners and the Mayordomo is two
years. There is no limit on the number of terms a duly-elected
Commissioner or Mayordomo can have. The elected officers shall assume
their office not later than the first Monday of the month following when
they are elected.
Article 5 -
MANAGEMENT AND OPERATIONS
Section 5.1 Allocation Between Neighboring Acequias
As recognized in Sections 73-2-4 7 and 72-9-2, NMSA 1978, and as
practiced traditionally, during times of emergency and/or drought, the
Commission will represent the Acequia de La Puebla for the purpose of
cooperating with the other acequias in the Santa Cruz Irrigation
District, which draw water from the Santa Cruz River, in order to
determine the most effective and equitable manner of allocating water in
all of the
acequias.
Section 5.2 Spring Acequia
Cleaning
Annual acequia cleaning and normal repairs occur in
the Spring before the irrigation season. The Mayordomo and Commissioners
will coordinate the timing and extent of Spring cleaning and repair
activities.
Each AdLP membership is assessed the Spring cleaning fee,
regardless of acreage.
By definition, the Spring cleaning covers the
AdLP mother ditch and its laterals, up to but not including, ditches
on private property.
Section 5.3 Allocation of Water
Between Parciantes
The water available in the acequia shall
be allocated in approximate proportion to the acreage of land with water
rights owned by each parciante of the Acequia. The Mayordomo shall be in
charge of the distribution of the water to the parciantes, based on a
general schedule established by the AdLP Commissioners, and in concert
with the SCID. The schedule may be adjusted depending on the
availability of water by the
mayordomo, in consultation with the
Commissioners.
As in Section 5.1, during times of emergency and/or
drought, the mayordomo shall work with the Commissioners to determine
the most effective and equitable manner of allocating water within the
acequia.
Section 5.4 Parciante Assessments
Annually, the Commissioners shall determine the amount of money
necessary for the ensuing year’s expenses of the acequia, including
cleaning, operating, maintaining, repairing and improving the acequia,
and compensating the mayordomo. The Commissioners shall then assess each
parciante, in proportion to his/her acreage with water rights, based on
that information.
NOTE: Annual Assessments include the current
membership dues and acequia cleaning fees. Other assessments can also
include past annual assessments, late fees, emergency assessments, fines
assessed by citations, mediation agreements and/or court-ordered
settlement agreements.
The approved annual assessment rate shall
remain in effect until changed by the Commission.
Section
5.5 AdLP Infrastructure
The AdLp is responsible for the
operation and maintenance of the acequia infrastructure, which includes
the main ditch and all desagues/sluices. No irrigation is allowed from
any desague/sluice. Appendix C, not yet created, will provide a
graphical representation of the AdLP infrastructure.
Article 6 -
RIGHTS AND OBLIGATIONS OF PARCIANTES
Section 6.1 Maintenance of Headgates
All parciantes
shall maintain their individual headgates in good condition and keep
their acequia sections free of trash and other obstructions. Repairs and
construction of headgates and other works should be completed before the
start of the irrigation season.
The size of new headgates should be
consistent with a Waterman 10” valve (~78 in2), positioned no lower than
the bottom of the main ditch, and designed to not interfere with acequia
easements and/or operations.
Section 6.2 Payment of
Assessments
All parciantes shall pay his/her total
assessment regardless of whether a parciante irrigates or does not
irrigate. All assessments are due upon receipt of the Treasurer’s
statement and become delinquent 45 days following the date of the
invoice. All delinquent accounts will pay a penalty of 10% per year. The
AdLP Commissioners and the Mayordomo shall be exempt from acequia
cleaning fees.
Section 73-2-26 NMSA 1978 gives the Mayordomo
authority to file a court action to collect delinquent assessments.
Section 6.3 Participation in Acequia Cleaning and/or
Emergency Repairs
Each membership is assessed for the annual
Spring cleaning, regardless of acreage, and/or for emergency repairs, as
required by the Mayordomo.
Section 6.4 Compliance with
Bylaws
All parciantes shall abide by Acequia de La Puebla
Bylaws, Rules and Regulations and shall comply with decisions adopted by
the Commission for the common good.
Section 6.5 Public
Inspection of Acequia Records
All records of proceedings by
Commissioners and financial records of the Acequia de La Puebla shall
always remain public property and shall be open to public inspection,
per Sections 73-2-21 and 73-3-4 NMSA 1978.
Section 6.6
Copy of Bylaws
Each parciante shall be provided with a copy
of the current bylaws of the Acequia de La Puebla and amendments
thereafter adopted. Bylaws are also available on the AdLP website at
http://acequiadelapuebla.org.
New parciantes will be briefed on the
operation of the Acequia by one of the Commissioners or the
Mayordomo.
Section 6.7 Name and Address in Acequia
Records
Each parciante shall keep current on the records of
the Commission of the Acequia de La Puebla, to include the name(s) of
the owner(s) of the property; the owner's mailing address, telephone
number and email address, and the exact amount of irrigated acreage or
water rights claimed by the parciante. The parciante shall also keep
current the name, mailing address, telephone number and email address of
any person who
has leased the property.
It is the responsibility
of each parciante to keep accurate records with the Office of the State
Engineer and to provide a copy of the OSE documents to the AdLP
Commission upon request.
Section 6.8 Change of Ownership
It shall be the responsibility of a landowner who has purchased or
leased land with Acequia de La Puebla water rights to report such
transaction promptly to the Secretary for recording in the Acequia's
records. Delinquencies, if any, are due from the past owner or lessee on
said land, and must be paid before the new owner or lessor may be
entitled to the use of the Acequia.
Section 6.9 Change in
Point of Diversion, Purpose of Use, or Place of Use
Any type
of change or modification whatsoever to the point of diversion, purpose
of use, or place of use of a water right served by the Acequia,
including but not limited to any type of partial or temporary or
supplemental or emergency change or water-use lease, is a water transfer
and must comply with Article 9 and Appendix A of these Bylaws. Any type
of change or modification to a water right so that it is moved into and
then served by the Acequia, including but not limited to any type of
partial or temporary or supplemental or emergency change or water-use
lease, is a water transfer and must comply with Article 9 and Appendix A
of these Bylaws. Appendix A also addresses any uncertainty whether a
particular change is a “transfer” reviewable by the Commission under
these bylaws. If a water transfer has been approved by all necessary
authorities, the transferring parciante shall provide updated
information about the water right to the Secretary for recording in the
records of the Acequia.
Article 7 -
EASEMENTS
Section
7.1 Definition of Easement
Each parciante and non-parciante
recognizes that the Acequia de La Puebla, including all of its laterals
and sluices/desagues and the sluice/desague drainage channels possess a
historical permanent easement for the purpose of inspection,
maintenance, operations and improvements.
Acequia easements are
described in Section 73-2-5 NMSA 1978. State law does not define a set
number of feet but states that the easement is as wide as necessary for
maintenance, use and improvements. No one may obstruct, interfere with,
or prevent access to, the easement. Prohibited activities include, but
are not limited to, erecting a building within the easement, locking a
gate to the easement, allowing a dog to create a potential threat within
the easement, or restricting in any way a customary or historical access
route or point to the easement.
Section 7.2 Maintenance
of Easement
Each Acequia de La Puebla parciante and
non-parciante shall ensure that it must be possible to freely and safely
walk the full length of the acequia easement within his or her property.
For instance, if a fence or other barrier crosses the acequia or the
easement, the parciante or non-parciante shall provide an accessible
gate, crossover, or the barrier shall be removed.
Section
7.3 Access to Easement
Acequia de La Puebla has the right to
use the historic and customary routes or points of access to the acequia
within parciantes’ and non-parciantes’ property and other such routes or
points of access as may be necessary to afford safe and convenient
access to the acequia for inspection, maintenance, operations and
improvements.
Section 7.4 Changes to Acequia
Any material changes to the Acequia de La Puebla, including any
crossings, shall be approved in advance by the Commission.
Article 8 - ENFORCEMENT
Section 8.1 Assessment Delinquencies
A parciante who
is delinquent in the payment of his or her assessment(s) shall not be
entitled to use water from the Acequia and shall also not be entitled to
vote in any Acequia election. These prohibitions shall remain in effect
until all assessment(s) are paid. Acequia officials have the authority
granted by Section 73-2-26, NMSA 1978 to collect penalties and
delinquent assessments through appropriate civil legal action.
Section 8.2 Illegal Use of Water or Acequia Interference
Any person who, contrary to an order of the Mayordomo or Commission,
interferes with the Acequia de La Puebla historical easements, its
laterals, sluices/desagues, and the sluice/desague drainage channels, in
any manner, or takes or uses acequia water without permission of the
Mayordomo or Commission commits a criminal misdemeanor and may be
prosecuted in accordance with the laws of New Mexico. A civil and/or
criminal action may also be pursued against the violator per Section
73-2-64 & 73-2-5 NMSA 1978
Section 8.3 Violation of
Easement Rights
Any person who interferes with the Acequia
de La Puebla historical easement, its laterals, sluices/desagues, and
the sluice/desague drainage channels, or prevents access to the easement
commits a criminal misdemeanor and may be prosecuted in accordance with
the laws of New Mexico. A civil and/or criminal action may also be
pursued against the violator per NMSA 1978, Sections 73-2-64 & 73-2-5.
Article 9 -
WATER TRANSFERS
The
members of Acequia de La Puebla declare that a transfer of a water right
served by the Acequia, or a transfer of a water right into the area
served by the Acequia, may be detrimental to both the Acequia and its
parciantes. Therefore, any such proposed transfer by any person or
entity must be formally approved by the
Acequia de La Puebla
Commissioners, using the procedure in Appendix A, prior to application
for the transfer to the Office of the State Engineer. This Article and
Appendix A are adopted under Section 73-2-21 (E) NMSA 1978.
Article 10 - WATER BANKING
Water Bank shall be managed according to the provisions of Appendix B:
Water Banking. Nothing in the formation of the Water Bank or its
operation shall affect the traditional and recognized lawful authority
of the Acequia Commissioners and Mayordomo. Issues of daily water use,
periodic allocation, water issues between members, and all other matters
normally managed by the Acequia officers will continue without change.
Use of the Water Bank shall not affect existing vested water rights,
priority dates or any existing lawful use of water by members. No action
connected to the Water Bank shall be considered an adjudication of any
person’s water rights.
Article 11 -
MISCELLANEOUS PROVISIONS
Section 11.1 Amendments to Bylaws
These bylaws may
be enacted, amended, or modified by a majority vote of at least 5% of
the total membership in good standing and present at any duly called
meeting.
Section 11.2 Applicability of State Law
Where not otherwise covered by these bylaws, the requirements of state
law shall be applicable. These bylaws are supplemental to any applicable
provisions of NM State law.
Section 11.3 Severability
Clause
If any part or application of these bylaws is held
invalid, the remainder of its application to other situations or persons
shall not be affected.
Article 10. Miscellaneous Provisions
Section 1: Amendments to Bylaws
These
bylaws may be enacted, amended, or modified by a majority vote by a
minimum of at least 5% of the total membership present at any duly
called meeting.
Section 2: Applicability of State Law
Where
not otherwise covered by these bylaws, the requirements of state law
shall be applicable. These bylaws are supplemental to any applicable
provisions of NM State law.
Section 3: Severability Clause
If
any part or application of these bylaws is held invalid, the remainder
of its application to other situations or persons shall not be affected.
Signature Page
APPENDIX
A WATER TRANSFERS
[Please
note: Acequias subject to the terms of a federal court adjudication
settlement like the Abeyta settlement in Taos County may be subject to
different laws and processes. In those cases, the language contained in
this Appendix may need to be modified.
Section 1: General
The members of Acequia de La Puebla declare
that a transfer of a water right served by the Acequia, or a transfer of
a water right so that it is moved into and then served by the Acequia,
may be detrimental to the Acequia and/or its members. Therefore, any
such proposed transfer by any person or entity must be formally
considered by the Commission using the procedure set forth below, and
must be approved prior to application for the transfer to the Office of
the State Engineer. As used in this document, “transfer” means any
type of change or modification whatsoever to
the point of diversion, and/or place of use, and/or purpose of use of a
water right, including but not limited to any type of temporary
transfer, partial transfer, transfer to a
supplemental supply of
water, emergency transfer, or water-use lease.
Section 2: Process
Application Submittal. An application to
transfer a water right served by the Acequia or transfer of a water
right into the area served by the Acequia shall be made by the owner of
the water right using the application form adopted with this bylaw,
which shall be delivered by certified mail to each Commissioner. The
120-day timeline in Section 72-5-24.1(D), NMSA 1978 (2003) shall not
begin to run until the applicant submits a
complete application form
with all required information. Submittal of an application that the
Acequia deems incomplete shall not cause the timeline to begin to run.
Meeting. Within 90 days of receipt of the complete written request, the
Commissioners shall hold a meeting to allow the applicant and members
who support or oppose the request to be heard and/or submit information.
Meeting Notice. Notice of the meeting shall be given in the same manner
required for the Acequia’s annual meeting. In addition, notice shall be
given 1) by mail to the applicant at the address on the application
form, and 2) by posting a notice of the request and meeting date, at
least 10 days before the meeting, at a
prominent public
place near the site of the proposed change.
Meeting Agenda. The
meeting agenda shall include at least the following information: date,
time, location, and an item entitled “Consideration by Commission of
Application by [name of applicant] to Transfer Water Rights”.
Meeting
Procedure. The management of the meeting, such as date, location,
length, and other related matters shall be decided by the Commission.
Only the entities mentioned in this section shall be allowed to speak at
the meeting. The rules of civil procedure and the rules of evidence
shall not apply to the meeting.
The Commission may be represented by
an attorney or other representative, and may be assisted in the conduct
of the meeting by other such persons as it may designate. During the
presentations, the Commission shall accept and consider any documents or
other exhibits, written or oral statements, or arguments offered by the
applicant or any non-commissioner Acequia member, or by any individual
who is presented by the
applicant or any non-commissioner Acequia
member. The Commissioners may ask any questions they believe may help in
their decision. The Commissioners may defer any questions posed to them
until after all comments have been received and deliberations have taken
place.
The applicant or any non-commissioner Acequia member may be
represented by an attorney or other representative. The applicant or any
non-commissioner Acequia member may respond, personally or through a
representative, to exhibits, statements, arguments, or questions offered
at the meeting, directing such response to the Commission. Following the
presentations, the Commission shall deliberate, prepare a written
decision, and vote. The Commission may choose to recess the meeting
prior to doing or completing any of these activities. If it chooses to
recess, the Chair shall announce the date, time, and location of the
reconvened meeting prior to
recessing. The last of any reconvened
meetings shall be within 120 days of receipt of the complete written
application. The Commission shall also immediately post notice of the
date, time, and location on or near the door of the original meeting
location and at least one other public notice location. Only matters
appearing on the original agenda may be discussed at the reconvened
meeting.
The transfer application may be denied, in whole or in part,
if the Commission finds that the transfer would be detrimental to the
Acequia and/or its members. The application may also be conditionally
approved, with conditions which address potential detriments to the
Acequia or its members. The Commission shall base its
decision on the
record; provided that the Commission may take notice of facts and
circumstances generally known with respect to the Acequia and its
operation.
A decision requires a majority vote of the Commissioners
and shall be made within 120 days upon receipt of the complete, written
application. The Commission’s decision shall be in writing, explaining
the reasons for its decision, and the vote on the written decision shall
be made at an open meeting. This shall constitute a decision of the
Acequia in compliance with the 120- day deadline set forth in Section
72-5-24.1 (D), NMSA 1978.
Section 3: Appeal to District
Court
If the applicant or a member of the Acequia is
aggrieved by the Commission’s decision, he or she may appeal to the
State District Court under the provisions of Section 73-2-21(E) or
Section 73-3-4.1, NMSA 1978, whichever is applicable. The appeal must be
filed within 30 days of the Commissioners’ written decision.
Section 4: Prior Application to State Engineer Prohibited;
Commissioner protest
A person or entity desiring a water
right transfer is required to seek approval from the Acequia
Commission prior to seeking approval from the Office of the State
Engineer. If a person or entity fails to do so and files an application
for the change with the State Engineer, an Acequia Commissioner shall
timely file a protest to the application with the State Engineer on
behalf of the Acequia, objecting to the failure of the applicant to
first
bring the request, or the question of the bylaws applicability,
before the Acequia. Any Commissioner is authorized to file the protest.
Any uncertainty whether a particular change is a “transfer” reviewable
by the Commission under these bylaws shall be decided by the Commission
in an open meeting prior to any application for the change to the Office
of the State Engineer, and the Commission’s decision shall be
communicated to the Office of the State Engineer. Absent such a meeting
and decision, no Commissioner shall sign any affidavit, nor make any
statement, written or otherwise, stating that the Acequia does not have
an applicable bylaw.
[Optional] Section 5: Arbitration
Instead of an appeal to court, the applicant or a member of the Acequia
aggrieved by the Commission’s decision may request that the Commission’s
decision be submitted to binding arbitration. The request must be in
writing, sent to each Commissioner by certified mail within 30 days of
the Commission’s decision. The Commission must agree to the request in
order for the arbitration to proceed. The Commission shall send
notice to the person requesting arbitration of whether it agrees to the
request within 15 days of receipt of the request.
If the Commission
agrees upon arbitration, the arbitrator shall be a person experienced in
acequia organization, governance and procedure and shall be mutually
agreed upon by the Commission and the aggrieved party. If agreement on
the arbitrator cannot be reached within 30 days of the date of the
Commission’s agreement to the request, the arbitration shall not
proceed.
The issue presented to the arbitrator shall be solely
whether the Commissioners’ decision was fraudulent, arbitrary,
capricious, or otherwise not in accordance with law. The arbitration
shall be conducted in a manner directed by the arbitrator, and shall
include a) the right of any party to be represented by an attorney, b)
the
right to present testimony and/or other evidence, c) the right to
cross- examine witnesses and d) the opportunity to present written
briefs or summaries at the end of the hearing. No formal record need be
made and the formal rules of civil procedure and evidence shall not
apply. Fees shall be paid equally by the Commission and the aggrieved
party. The arbitrator shall provide a written explanation of the reasons
for the
decision. The result of the arbitration shall be final and
binding.
APPENDIX B WATER BANKING
Please note:
Acequias that are subject to the terms of a federal court adjudication
settlement like the Aamodt settlement in Santa Fe County may be subject
to different laws and processes. In those cases, the language contained
in this Appendix may need to be modified.
This Appendix contains the
Water Banking provisions referenced in Article 10, Water Banking, and
the Water
Banking Deposit Form.
Section 1:
Purpose
The purpose of the Water Bank is to promote
conservation and beneficial use of Acequia water through a locally
managed system of temporarily reallocating water for beneficial use
within the area served by the Acequia. The Water Bank will also allow
water right owners who are temporarily not using some or all of their
water rights to benefit by protecting those rights from loss for
non-use.
In adopting this section, the parciantes of Acequia de La
Puebla agree that a banked water right may be exercised on lands not
otherwise associated with the water right so as to further the purpose
of the Water Bank, and further agree that a parciante who owns a banked
water right may remove the water right from the Water Bank at any time,
and shall therefore not be deprived of the water right, lose ownership
of the water
right either permanently or temporarily, or experience
any reduction in the economic value of his or her property as a result
of the Water Bank.
Section 2: Protection from Loss for
Non-Use
As provided in Section 73-2-55.1, NMSA 1978 (2003),
water rights deposited in the Water Bank are not subject to loss for
non-use during the time they are in the bank.
Section 3:
Water Bank Procedures
a) Water
Bank Record Keeping
The Commissioners may delegate to the
Mayordomo or any member of the Acequia the responsibility to maintain
records on all Water Bank deposit forms submitted, contact logs, and
other information required to achieve the purposes of the Water Bank,
not including, however, automatic deposits and withdrawals. These
records shall be maintained permanently in the records of the Acequia.
b) Depositing Water Rights
Water
rights may be deposited in the Water Bank in one of two ways, either by
(1) a parciante depositing his or her own water right in the Water Bank
by submitting a deposit form, or (2) a water right being automatically
deposited in the Water Bank after two full consecutive calendar years of
non- use. In both cases the parciante has the right to withdraw the
water right from the Water Bank at any time, as described below.
(1)
Deposit form. Any person or entity owning a water right on the Acequia
may submit a water right deposit to the Water Bank. The owner shall
complete a deposit form provided by the Acequia, and submit the form to
the Water Bank’s designated record keeper. The record keeper may require
proof of ownership and extent of
the water right being deposited. The
record keeper shall use the Map and Tract Number of the most recent
Hydrographic Survey or, in the absence of that, the Acequia’s
traditional identification system to identify the right being deposited.
The deposit shall become effective upon receipt of all necessary
information by the
record keeper. The record keeper shall inform the
Mayordomo of the deposit as soon as possible.
(2) Automatic deposit.
A water right that is not used for two full and consecutive calendar
years (January
through December) shall, on January 1 of the following
year, be deemed to be deposited in the Water Bank.
c) Renewing Deposits; Withdrawing Water Rights
Each deposit shall have a term of one year, renewable annually, except
that a deposit made after January 1 shall have an initial term of less
than one year. A water right may be withdrawn from the Water Bank at any
time including during the initial term as described in paragraphs (1)
and (2) below. Each deposit shall renew automatically on January 1
unless the owner has withdrawn the water right.
A parciante who has
used a deposit form to make a deposit shall make a brief written request
for non-renewal or withdrawal of the water right, specifying the date
that the withdrawal shall take effect, and submit it to the Water Bank’s
designated record keeper. If the written request is instead submitted to
an Acequia officer who
is not the designated record keeper, the
officer shall forward it to the designated recordkeeper. Any initial
term or automatic renewal will end as of the specified date of
withdrawal.
A water right that is automatically deposited may be
withdrawn in the manner described in the above paragraph or by verbal
request of the parciante to use the water. If the parciante requests to
use the water, the water right will be deemed to be withdrawn after such
request followed by actual beneficial use of the water. Any initial term
or automatic renewal will end when the withdrawal becomes effective.
Use of a water right following non-renewal or withdrawal from the Water
Bank shall be subject to all Acequia requirements, including the
requirement that the owner be in good financial standing with the
Acequia prior to receiving water.
Water rights deposited in the Water
Bank that are sold or otherwise conveyed to a new owner shall be deemed
to remain in the Bank until the new owner withdraws the water right as
provided above.
d) Water Right Reallocation
All water rights deposited in the Water Bank shall be temporarily
transferred by the Mayordomo by absorbing them into the Acequia’s
regular rotation so that the rights are put to use to augment shortfalls
at the remaining places of use served by the Acequia. The temporary
transfer shall not include any change of
purpose of use or point of
diversion of the water rights. A water right deposited in the Water Bank
shall be presumed to be put to beneficial use beginning at the next
water distribution by the Mayordomo, for the duration of the term
authorized above. Such temporary transfer does not require Commission
action or approval.
Water rights deposited in the Water Bank may also
be temporarily transferred to a specific place(s) of use already served
by the Acequia, by action of the Commission in any other lawful manner
which, in the judgment of the Commissioners, will benefit the Acequia,
subject to all applicable procedures, rules and laws. The temporary
transfer shall not include any change of purpose of use or point of
diversion of the water
rights.
The temporary transfer of water
rights deposited in the Water Bank, done in accordance with this
section, shall occur in the year in which the rights were deposited,
initially or through renewal. Such water rights shall not accumulate or
carry over to be reallocated in future years.
Temporary transfers of
banked water rights done in accordance with this section are not subject
to Article 9 or Appendix A of these bylaws (regulating water rights
transfers).
Section 4: Acequia Dues and Fees
Water rights may be deposited in the Water Bank regardless of whether
the owner is in good financial standing with the Acequia.
[Option 1]
However, ditch dues or fees owed the Acequia by a water right owner who
has deposited water rights in the Water Bank will continue to accrue and
be owed by the water right owner.
[Option 2] All Acequia dues and
fees are waived for each full year in which the water rights are in the
Bank. An owner who deposits water rights after January 1 shall pay dues
and fees for that year, and dues and fees must be paid for the year in
which the water rights are withdrawn. An owner who was not in good
standing when
his or her rights were deposited shall pay the
outstanding dues and fees prior to receiving water after withdrawal of
the rights from the Bank.