TITLE 19 NATURAL
RESOURCES AND WILDLIFE
CHAPTER 25 ADMINISTRATION AND USE OF WATER-GENERAL PROVISIONS
PART 10 REVIEW AND ELIGIBILITY OF PROPOSED WATER PROJECTS
19.25.10.1 ISSUING
AGENCY: New Mexico Water Trust Board.
[19.25.10.1
NMAC - Rp, 19.25.10.1 NMAC, 7/31/08]
19.25.10.2 SCOPE: All persons applying for financial assistance
under the water project fund from the New Mexico finance authority, NMSA 1978,
72-4A-5 and NMSA 1978, 72-4A-9.
[19.25.10.2
NMAC - Rp, 19.25.10.2 NMAC, 7/31/08]
19.25.10.3 STATUTORY
AUTHORITY: NMSA 1978, 72-4A-5 and NMSA 1978, 72-4A-9.
[19.25.10.3
NMAC - Rp, 19.25.10.3 NMAC, 7/31/08]
19.25.10.4 DURATION: Permanent.
[19.25.10.4
NMAC - Rp, 19.25.10.4 NMAC, 7/31/08]
19.25.10.5 EFFECTIVE DATE: July 31, 2008, unless a later date is cited at
the end of a section.
[19.25.10.5
NMAC - Rp, 19.25.10.5 NMAC, 7/31/08]
19.25.10.6 OBJECTIVES:
A. Section
72-4A-5, NMSA 1978 provides that the New Mexico water trust board is required
to adopt rules governing terms and conditions of grants and loans recommended
by the board for appropriation by the state legislature from the water project
fund giving priority to projects that have urgent needs, that have been
identified for implementation of a completed regional water plan that is
accepted by the interstate stream commission and that have matching
contributions from federal or local funding sources; and authorizes qualifying
water projects to the authority that are for: (1) storage, conveyance or
delivery of water to end users; (2) implementation of federal Endangered
Species Act of 1973; (3) restoration and management of watersheds; (4) flood
prevention; and (5) conservation, recycling, treatment or reuse of water as
provided by law. Additionally, the board
shall create a drought strike team to coordinate responses to emergency water
shortages caused by drought conditions. Section 72-4A-9, NMSA 1978, creates the
“water project fund” within the New Mexico finance authority.
B. Section 72-4A-5,
NMSA 1978, provides that the board shall give priority to qualifying water
projects that (i) have been identified as being
urgent to meet the needs of a regional water planning area that has had a
completed regional water plan accepted by the interstate stream commission;
(ii) have matching contributions from federal or local funding sources
available and (iii) have obtained all requisite state and federal permits and
authorizations necessary to initiate the qualifying water project. The purpose
of these rules is to set forth the intent of the board and to outline, in
general terms, the criteria and procedures to be used in evaluating and funding
qualifying water projects.
C. Section 72-4A-6,
NMSA 1978, provides that the authority shall provide support for the water
trust board, develop application procedures and forms for qualifying entities
to apply for grants and loans from the water project fund; and make loans or
grants to qualifying entities for qualifying water projects authorized by the
state legislature, provided that the service area for the project is wholly
within the boundaries of the state or the project is an interstate project that
directly benefits New Mexico.
D. Section 72-4A-9,
NMSA 1978, provides that the authority may adopt separate procedures and rules
for administration of the water project fund and recover from the water project
fund costs of administering the water project fund and originating grants and
loans.
[19.25.10.6
NMAC - Rp, 19.25.10.6 NMAC, 7/31/08]
19.25.10.7 DEFINITIONS:
A. “Act” means the Water Project Finance
Act, Sections 72-4A-1 through 72-4A-10, NMSA 1978, as the same may be amended
and supplemented.
B. “Agreement” means the document or
documents signed by the board and a qualifying entity which specify the terms
and conditions of obtaining financial assistance from the water project fund.
C. “Applicant” means a qualifying entity
which has filed a water project proposal with the authority for initial review
and referral to the board’s project review committee.
D. “Authority” means the New Mexico
finance authority.
E. “Authorized representative” means one
or more individuals duly authorized to act on behalf of the qualifying entity
in connection with its financial application, water project proposal or
agreement.
F. “Board” means the New Mexico water
trust board created by the act.
G. “Bylaws” means the bylaws of the board
adopted on September 25, 2001, and amended on June 27, 2007, and as may be
further amended and supplemented.
H. “Financial application” means a written
document filed with the authority by an applicant for the purpose of evaluating
the applicant’s qualifications for types of financial assistance which may be
provided by the board.
I. “Financial assistance” means loans,
grants and any other type of assistance authorized by the act, or a combination
thereof, provided from the water project fund to a qualified entity for the
financing of a qualifying water project.
J. “Policy committee”
means a standing committee, appointed by the chairman of the board from the
members of the board pursuant to the bylaws to review policies and policy
related matters and make recommendations to the full board.
K. “Political subdivision” means a
municipality, county, land grant-merced controlled
and governed pursuant to Section 49-1-1 through 49-1-18 or 49-4-1 through 49-4-21
NMSA 1978, regional or local public water utility authority created by statute,
irrigation district, conservancy district, special district, acequia or soil and water conservation district, water and
sanitation district, or an association organized and existing pursuant to the
Sanitary Projects Act, Chapter 3, Article 29 NMSA 1978.
L. “Project review
committee” means a standing committee, appointed by the chairman of the
board from the members of the board pursuant to the bylaws to review water
projects to be recommended for funding from the water project fund.
M. “Qualifying entity” means a state
agency, a political subdivision of the state, an intercommunity water or natural
gas supply association or corporation organized under Chapter 3, Article 28
NMSA 1978, a recognized Indian nation, tribe or pueblo, the boundaries of which
are located wholly or partially in New Mexico or an association of such
entities created pursuant to the Joint Powers Agreement Act, Chapter 11,
Article 1 NMSA 1978 or other authorizing legislation for the exercise of their
common powers.
N. “Qualifying water project” means a
project recommended by the board for funding by the legislature which includes
a water project serving an area wholly within the boundaries of the state for (i) storage, conveyance or delivery of water to end users;
(ii) implementation of federal Endangered Species Act of 1973 collaborative
programs; (iii) restoration and management of watersheds; (iv) flood prevention;
or (v) conservation, recycling, treatment or reuse of water as provided by law
and which has been approved by the state legislature pursuant to Section
72-4A-9(B), NMSA 1978.
O. “State” means
the state of New Mexico.
P. “State agency”
means any agency or institution of the state.
Q. “Water project
account” means a fund designated by a qualifying entity exclusively for
receipt of financial assistance.
R. “Water project fund”
means the fund of that name created in the authority by Section 72-4A-9, NMSA
1978.
S. “Water project
proposal” means a written proposal submitted by a qualifying entity for
review by the project review committee.
T. “Water trust fund”
means the fund of that name created in the state treasury by Section 72-4A-8,
NMSA 1978.
[19.25.10.7
NMAC - Rp, 19.25.10.7 NMAC, 7/31/08; A, 12/30/13]
19.25.10.8 ELIGIBILITY:
PRIORITIZATION OF WATER PROJECTS: The board will develop and
consider a variety of factors in reviewing and evaluating water project
proposals to determine which water projects to recommend as qualifying water
projects for appropriation by the state legislature. The board shall give
priority to projects that have urgent needs, that have
been identified for implementation of a completed regional water plan that is
accepted by the interstate stream commission and that have matching
contributions from federal or local sources as provided for in Section 72-4A-5
NMSA 1978. Pursuant to Section 72-4A-5.1
NMSA 1978, the board, in conformance with the state water plan and pursuant to
the provisions of the Water Project Finance Act, shall prioritize the planning
and financing of water projects required to implement the plan. The board shall
identify opportunities to leverage federal and other funding. The board shall
establish policies for prioritization of water projects.
[19.25.10.8
NMAC - Rp, 19.25.10.8 NMAC, 7/31/08; A, 12/30/13; A, 4/30/15]
19.25.10.9 WATER
PROJECT PROPOSAL, PROCEDURES AND APPROVAL PROCESS:
A. The authority will administer an outreach
program to notify qualifying entities that water project proposals are being
accepted to identify water projects for review by the project review committee
and the board for recommendation for funding to the state legislature as
qualifying water projects.
B. The authority
will provide forms and guidelines for water project proposals and financial
applications.
C. The authority staff will forward all
completed water project proposals from qualified applicants for qualified water
projects to the project review committee.
The project review committee will consider the water project and may
confer with outside parties, including any local interdisciplinary teams
familiar with the water project, as necessary to obtain more information on the
feasibility, merit, and cost of the water project. The project review committee will make a
recommendation to the board on each water project proposal.
D. Upon
the recommendation of the project review committee, the board will evaluate the
qualifying water projects for recommendation to the legislature.
E. After
completion of the review process by the project review committee and the board
and receipt of a favorable recommendation on the water project proposal, the
water project will be recommended by the board for approval by the state
legislature, which recommendation and approval are required by Sections 72-4A-5
and 72-4A-9 NMSA 1978.
F. No
later than January of each year, the board will recommend to the legislature a
list of projects recommended for funding. After the legislature authorizes
qualifying water projects, the project review committee will review evaluations
of financial applications and water project proposals prepared by staff and
recommend to the board a final list of projects to be authorized by the board
for funding by the authority. The authority will provide financial assistance
for qualifying projects as authorized by the legislature under policies jointly
established by the board and authority.
[19.25.10.9
NMAC - Rp, 19.25.10.9 NMAC, 7/31/08; A, 12/30/13; A, 4/30/15]
19.25.10.10 EVALUATION
OF FINANCIAL APPLICATION AND WATER PROJECT PROPOSAL:
The authority staff will complete an initial evaluation of the financial
application and water project proposal upon receipt. Such evaluation will
include, to the extent applicable, an evaluation of water project feasibility,
administrative capacity, financial position, debt management and economic and
demographic factors. The authority may rely upon the advice of an
interdisciplinary team in evaluating water project proposals and financial
applications.
[19.25.10.10
NMAC - Rp, 19.25.10.10 NMAC, 7/31/08]
19.25.10.11 QUALIFYING
WATER PROJECTS AND ELIGIBLE COSTS:
A. The board may authorize the authority to
provide financial assistance from the water project fund to qualifying entities
only for qualifying water projects as provided by Section 72-4A-6 and Section
72-4A-7, NMSA 1978.
B. Financial
assistance shall be made only to qualify entities that:
(1) agree to provide for the operation and maintenance of the
water project so that it will function properly over the structural and
material design life, which shall not be less than twenty years;
(2) require the contractor of the construction project to post a
performance and payment bond in accordance with the requirements of Section
13-4-18, NMSA 1978;
(3) provide
written assurance signed by an attorney or provide a title insurance policy
that the political subdivision has proper title, easements and rights of way to
the property upon or through which the water project proposed for funding is to
be constructed or extended;
(4) meet the requirements of the financial capability set by the
board to ensure sufficient revenues to operate and maintain the water project
for its useful life and to repay the loan;
(5) agree to properly maintain financial records and to do an
audit of the project’s financial records; and
(6) agree to pay costs of originating grants and loans as
determined by rules adopted by the board.
C. Plans and
specifications for a water project shall be approved by the New Mexico
environment department or by another appropriate agency designated by the authority
before grant or loan disbursement to pay for construction costs is made to a
qualifying entity. Plans and
specifications for a water project shall incorporate available technologies and
operations design for water efficiency.
D. Financial
assistance shall be made for eligible items, which include:
(1) matching requirements for federal and local cost shares;
(2) engineering feasibility reports;
(3) contracted engineering design;
(4) inspection of construction;
(5) special engineering services;
(6) environmental or archeological surveys;
(7) construction;
(8) land acquisition;
(9) easements and rights of way; and
(10) legal costs and fiscal agent fees within limits set by the
board.
E. A qualified
entity which has had financial assistance approved by the state legislature for
financing a qualifying water project may apply to the board to redirect the
financial assistance to a different water project made necessary by
unanticipated events. The decision to
redirect the financial assistance to a different qualifying water project will
be at the sole discretion of the board and subject to approval of the state
legislature as required by Section 72-4A-9(B), NMSA 1978.
[19.25.10.11
NMAC - Rp, 19.25.10.11 NMAC, 7/31/08; A, 5/28/10]
19.25.10.12 QUALIFYING
WATER PROJECT FINANCING: The authority may provide
financial assistance packages that include loans, grants and any other type of
assistance authorized by the authority.
The structure, terms and conditions of the financial assistance will be
determined by the authority. Financial
assistance for qualifying water projects may be pooled, at the sole discretion
of the authority, under policies jointly established by the board and
authority.
[19.25.10.12
NMAC - Rp, 19.25.10.12 NMAC, 7/31/08; A, 4/30/15]
19.25.10.13 FINANCING
APPROVAL REQUIREMENTS: Based on the priority and
evaluation factors set forth in Sections 19.25.10.8, 19.25.10.10, and
19.25.10.11, the board may recommend to the authority approval of the
qualifying water project for financial assistance.
[19.25.10.13
NMAC - Rp, 19.25.10.13 NMAC, 7/31/08]
19.25.10.14 RECONSIDERATION OF BOARD DECISIONS: Any applicant or qualifying entity may request
reconsideration of a decision of the board by notifying the board in writing
within 15 days following the meeting at which the decision was made. Notice of
a decision made in an open meeting of the board is deemed to be given on the
date of the meeting, and the time for notification of a request for
reconsideration shall run from that date, regardless whether any written notice
of the decision is given by the board. A
request for reconsideration shall state with particularity the grounds for
reconsideration, including any factual or legal matter on which the applicant
or qualifying entity believes that there was an error by the board. Upon
receiving a timely and proper request for reconsideration, the chairman of the
board will set the matter for reconsideration at the board’s next regularly
scheduled meeting or at a special meeting called for the purpose, at the
chairman’s discretion, Upon reconsideration by the board, the board will notify
the applicant or qualifying entity of the board’s decision, in writing, within
five working days of the decision. The
decision of the board on reconsideration is final. A request for reconsideration not timely or
properly made will not be considered by the board.
[19.25.10.14
NMAC - Rp, 19.25.10.14 NMAC, 7/31/08; A, 5/28/10]
19.25.10.15 FINANCIAL ASSISTANCE AGREEMENT:
A. The
authority and the qualified entity will enter into an agreement to establish
the terms and conditions of financial assistance from the water project fund. The agreement will include the terms of
repayment and remedies available to the authority in the event of a default. The authority will monitor terms of the
agreement and enforce or cause to be enforced all terms and conditions thereof,
including prompt notice and collection.
B. The
interest on any financial assistance extended shall be determined by the
authority based on the cost of funds and ability of a qualified entity to repay
a loan. The interest rate shall not
change during the term of the financial assistance unless refinanced or unless
the financial assistance is structured as a variable rate obligation.
C. The
agreement will contain provisions which require financial assistance recipients
to comply with all applicable federal, state and local laws and regulations.
D. In the event of default under a financial
assistance agreement by a qualified entity, the authority may enforce its
rights by suit or mandamus and may utilize all other available remedies under
state and applicable federal law.
[19.25.10.15
NMAC - Rp, 19.25.10.15 NMAC, 7/31/08; A, 12/30/13]
19.25.10.16 ADMINISTRATIVE
COSTS:
A. The
board may impose and collect reasonable fees and costs in connection with the
filing of a water project proposal or a financial application for approval of a
water project and for financial assistance with the board and the authority. The board also may impose and collect an
administrative fee from each qualifying entity that receives financial
assistance from the water project fund.
If an administrative fee is assessed, the administrative fee will be a
percentage of the principal amount of the financial assistance provided to a
qualifying entity. The administrative
fee may be withheld from the principal amount of the financial assistance and
will be retained in the water project fund.
Alternatively, the board may levy an annual fee equal to a percentage of
the outstanding principal amount of a loan.
Specific percentages will be based on, among other things, the volume of
financial assistance being provided to qualifying entities, the administrative
costs of the board and the authority, and the availability of other revenue
sources to cover the board’s and the authority’s administrative costs. The filing and administrative fee or fees may
be used for, among other purposes, reimbursing the board or the authority for
all or part of the costs of issuing bonds and other administrative costs,
including any audits of the water project fund and the water trust fund.
B. The board and the authority may establish
such other charges, premiums, fees and penalties deemed necessary for the
administration of the water project fund and the water trust fund.
[19.25.10.16
NMAC - Rp, 19.25.10.16 NMAC, 7/31/08]
19.25.10.17 ADMINISTRATION OF THE WATER TRUST FUND:
A. The
water trust fund shall be administered by the state treasurer’s office and
shall be invested by the state investment officer in the same manner as land
grant permanent funds are invested under state law. All investment earnings on
the water trust fund shall be credited to the water trust fund. The water trust fund shall not be expended
for any purpose.
B. Annual
distributions to the water project fund from the water trust fund shall be made
as required by the authority.
[19.25.10.17
NMAC - Rp, 19.25.10.17 NMAC, 7/31/08]
19.25.10.18 ADMINISTRATION
OF THE WATER PROJECT FUND:
A. The
water project fund shall be administered by the authority as a separate
account, but may consist of such subaccounts as the authority deems necessary
to carry out the purposes of the fund.
B. Money
from repayments of loans made by the board for qualifying water projects shall
be deposited in the water project fund.
The water project fund shall also consist of any other money
appropriated, distributed or otherwise allocated to the water project fund for
the purpose of financing qualifying water projects.
C. The
authority shall adopt a uniform accounting system for the water project fund
and each account and subaccount established by the authority, based on
generally accepted accounting principles.
D. The authority
may establish procedures and adopt rules as required to administer the fund and
to recover from the fund costs of administering the fund and originating grants
and loans.
[19.25.10.18
NMAC - Rp, 19.25.10.18 NMAC, 7/31/08]
19.25.10.19 BOND
ISSUANCE:
A. The
authority may issue and sell revenue bonds as required to provide funds to:
(1) replenish the principal balance of the water project fund;
(2) pay,
fund or refund the principal of or interest or redemption premiums, if any, on
bonds issued by the authority whether the bonds or interest to be paid, funded
or refunded have or have not become due;
(3) establish or increase reserve funds to secure bonds; and
(4) pay the costs and expenses incident to the issuance of
bonds.
B. The
authority will consider market and other economic conditions in determining the
type of sale and the timing of the issuance of bonds.
C. The bonds shall
be authorized and issued by the authority in accordance with the provisions of
the New Mexico Finance Authority Act, Chapter 6, Article 21, NMSA
1978.
[19.25.10.19
NMAC - Rp, 19.25.10.19 NMAC, 7/31/08]
19.25.10.20 AMENDMENT OF RULES: This rule may be amended or repealed at any
time by a majority vote of a quorum of the board.
[19.25.10.20
NMAC - Rp, 19.25.10.20 NMAC, 7/31/08]
HISTORY OF 19.25.10 NMAC:
Pre-NMAC History: None.
History of Repealed Material:
19.25.10
NMAC, Review and Eligibility of Proposed Water Projects (filed 9/3/2002)
repealed 7/31/08.
NMAC
History:
19.25.10
NMAC, Review and Eligibility of Proposed Water Projects (filed 9/3/2002) was
replaced by 19.25.10 NMAC, Review and Eligibility of Proposed Water Projects,
effective 7/31/08.