Commentary: The Roads Act is back on the road so to speak. First presented during the 2017 New Mexico Legislative Session, it is now staging a comeback. The issues prompting the legislation have not disappeared but remain of critical concern in southern New Mexico throughout the Elephant Butte Irrigation District.
The District operates, maintains, and owns the irrigation distribution system of the Rio Grande Project, including the canals, laterals, drains, wasteways, canal/drain banks, and structures. These facilities are used only by the District to conduct their business and are not open for public use without a special use permit or other written agreement. Roadwork maintenance and expansion are ongoing needs not just in towns, villages and cities, but up and down the miles of county roads in the state. EBID’s miles of canals and right of ways cover two counties, Sierra and Dona Ana. Both counties and municipalities often desire to utilize the District’s canal banks for public roads. This presents a problem as some have begun to assert that the irrigation district would then be subject to liability that they are currently not subject to under Section 41-4-11 of the Tort Claims Act. While EBID disputes this liability issue, the bill (HB 202) would make the situation much clearer so no dispute would be necessary.
The District is aware that in some locations its property provides a good location for a public road to allow access to private property. EBID has a Right of Use Policy that applies to those seeking to use EBID facilities for any purpose, and also has agreements with the City of Las Cruces, Dona Ana County, and NMDOT which addresses, lists and permits those roads that cross EBID facilities. However, in some cases throughout the District, improvements have been made on EBID property or right of ways without EBID’s permission, or on property paralleling EBID facilities that otherwise cause encroachments onto EBID’s property without EBID’s permission such that EBID’s property is now being used as a roadway. Other roads have been constructed with EBID’s permission although inadequately such that they are potential problems.
House Bill 202, known as The Roads Act, was introduced by Representative Nathan Small during the 2019 Legislative session. It seeks to amend, “…A section of the Tort Claims Act to provide for an exclusion from the waiver of immunity for irrigation and conservancy districts that authorize part of their property for use as a roadway by the public or a governmental entity.” In effect, this would make it clear that irrigation districts are protected from being subjected to additional liability and allow them to permit the use of their canal or drain bank property for use as public roads built and maintained by other public entities.
Roads Act themed Legislation has been on the legislative docket for years. In 2017 EBID manager Gary Esslinger said, “Four bills matching the current HB[202] have gone through seven committees and twice through the House unanimously.” Language in HB202 would provide the opportunity for EBID to allow legal use of District land as roads.
It is important that the Legislature take into account the unique requirements of irrigation and conservancy districts. To move forward and resolve these ongoing issues to allow districts to provide legal and safe access via their property interests, legislators must consider creating the legal ability for these entities with extensive property to resolve situations created by unpermitted roads. This House Bill 202 is the first step in this process and is, therefore, necessary legislation to increase public safety. Instead of passing HB202 down the road to yet another future legislative session, EBID hopes for cooperation in dealing with unpermitted roads and dangerous situations on canals throughout the District through passage of this necessary bill that lays the foundation for appropriate resolution of these issues.