Middle Rio Grande Regional Water Plan

4.1.1.9 The Strategic Water Reserve
In 2005, the New Mexico Legislature enacted legislation to establish a Strategic Water Reserve,
NMSA 1978, Section 72-14-3.3 (2007). Regulations implementing the Strategic Water Reserve
statute were also implemented in 2005. 19.25.14.1 et seq. NMAC.
The statute authorizes the Commission to acquire water rights or storage rights to compose the
reserve. Section 72-14-3.3(A). Water in the Strategic Water Reserve can be used for two
purposes: (1) to comply with interstate stream compacts and (2) to manage water for the benefit
of endangered or threatened species or to avoid additional listing of species. Section 72-14-
3.3(B). The NMISC may only acquire water rights that have sufficient seniority and consistent,
historical beneficial use to effectively contribute to the purpose of the Reserve. The NMISC
must annually develop river reach or groundwater basin priorities for the acquisition of water
rights for the Strategic Water Reserve. The Middle Rio Grande is a priority basin for the
NMISC.
4.1.1.10 Ditch and Acequia Water Use
Two recent cases by New Mexico courts address the issue of acequia water use. Storm Ditch v.
D’Antonio, 2011-NMCA-104, 150 N.M. 590, examined the process for transferring a
landowner’s water rights from a community acequia to a municipality. The Court found that
actual notice of the transfer application to the acequia was not mandated by statute; instead,
publication of the landowner’s transfer application provided sufficient notice to the acequia to
inform it of the proposed transfer. Further, the statute requiring that the transfer applicant file an
affidavit stating that no rules or bylaws for a transfer approval had been adopted by the acequia
was not intended to prove notice. Rather, the statute was directed at providing the State Engineer
with assurance that the applicant had met all requirements imposed by acequia bylaws before
action was taken on the application, not in providing notice.
Pena Blanca Partnership v. San Jose Community Ditch, 2009-NMCA-016, 145 N.M. 555,
involved attempts to transfer water rights from agricultural uses appurtenant to lands served by
two acequias to non-agricultural uses away from the acequias. The acequias denied the water
rights owners’ (Owners) requests to make these changes pursuant to their authority under NMSA
1978, Section 73-2-21(E) (2003). The Owners appealed the acequias decision to district court.
On appeal, the standard of review listed in Section 73–2–21(E) only allowed reversal of the
acequia commissioners if the court found they had acted fraudulently, arbitrarily or capriciously,
or not in accordance with law.
The Owners challenged this deferential standard of review in the Court of Appeals based on two
grounds. First, the Owners argued that the de novo review standard in Article XVI, Section 5 of
the New Mexico Constitution applied to the proposed transfers at issue, not the more deferential
standard found in Section 73-2-21(E). The Court disagreed and found that the legislature
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