A. Notwithstanding any other provision of the Public Utility Act [Chapter 62, Articles 1 to 6 and 8 to 13 NMSA 1978], or any provision of the Municipal Code [Chapter 3 NMSA 1978, except Article 66], or any privilege granted under either act, if any municipality that has not elected to come within the terms of the Public Utility Act, as provided in Section 62-6-5 NMSA 1978, constructs or extends or proposes to construct or extend its water or sewer line or system or water pumping station or reservoir into a geographical area described in a certificate of public convenience and necessity granted by the commission to a public utility rendering the same type of service, the commission, on complaint of the public utility claiming to be injuriously affected thereby, shall, after giving notice to the municipality and affording the municipality an opportunity for a hearing with respect to the issue of whether its water or sewer line, plant or system actually intrudes or will intrude into the area certificated to the public utility, determine whether such intrusion has occurred or will occur. If the commission determines such an intrusion has occurred or will occur, the municipality owning or operating the water or sewer utility shall cease and desist from making such construction or extension in the absence of written consent of the public utility involved and approval of the commission.
B. The authority and jurisdiction conferred by Subsection A of this section shall be in addition and cumulative to the independent authority of the commission to determine territorial disputes between public utilities and between mutual domestic water consumer associations and public utilities as provided in Section 62-9-1 NMSA 1978, which provisions shall govern the resolution of a territorial dispute between a municipality that has elected to come within the terms of the Public Utility Act, as provided in Section 62-6-5 NMSA 1978, and any other public utility rendering the same type of service. Provided, however, in the event that a certificate of public convenience and necessity granted to such a municipality overlaps, or conflicts with, a valid certificate previously issued by the commission and exercised within the term required under Section 62-9-4 NMSA 1978, the municipal utility shall be permitted to continue operation of its plant, line and system in existence upon the effective date of this 1991 act and the other public utility may continue service in the area covered by its certificate, subject to the other provisions of the Public Utility Act.
C. For purposes of this section, "municipality" means any municipality that has a population of more than two hundred thousand as determined in the most recent federal decennial census and is located in a class A county.
History: Laws 1991, ch. 143, § 2.
ANNOTATIONSCompiler's notes. — Sections 62-9-1 to 62-9-7 of the Public Utility Act are still effective as the repeal of Chapter 62, Article 6 by Laws 1998, Chapter 108, Section 82, effective July 1, 2003 Chapter 108, Section 82 was repealed prior to taking effect by Chapter 23, Section 1, Laws 2003. Although Laws 2003, Chapter 336, Section 8, amended Laws 1998, Chapter 82, as amended, an amendment of a repealed section is ineffective. See Quintana v. N.M. Dep't of Corrs., 100 N.M. 224, 668 P.2d 1101 (1983). Laws 2003, Chapter 416, Section 5 also repealed Laws 1998, Chapter 108, Section 82, as amended, a second time, however, that repeal is of no effect as the section had previously been repealed by Chapter 23, Section 1, Laws 2003.
Right of municipality to provide service in the certified area of a public utility. — Where the public regulation commission issued the public utility a certificate of public convenience and necessity authorizing the public utility to provide water in an area outside the limits of the municipality; the municipality later annexed three undeveloped tracts of land within the public utility's certified area, subdivided the land and committed itself to provide water to the subdivision; and the municipality had not elected to become subject to the Public Utilities Act, Section 62-1-1 NMSA 1978 et seq., and did not have a population of more than 200,000, the public utility's certificate of public convenience and necessity did not prevent the municipality from competing with the public utility in the certified area because the municipality was not subject to the Public Utilities Act. Moongate Water Co., Inc. v. City of Las Cruces, 2013-NMSC-018, 302 P.3d 405, aff'g 2012-NMCA-003, 269 P.3d 1.
Certificate of convenience and necessity did not grant exclusive service rights against a small municipality. — A certificate of public convenience and necessity issued by the public regulation commission does not grant a public utility service rights against a municipality that has a population less than or equal to two hundred thousand people and that has not elected to be subject to the Public Utility Act. Moongate Water Co., Inc. v. City of Las Cruces, 2012-NMCA-003, 269 P.3d 1, cert. granted, 2012-NMCERT-001.
Where a privately owned and regulated public utility company held a certificate of convenience and necessity issued by the public regulation commission to provide water service to residents in an area of new residential subdivisions; a municipality annexed the area, extended its water utility infrastructure into the area as part of its municipal water utility system, and began providing water service to residents in the area; and the municipality had a population of less than two hundred thousand and had not elected to be subject to the Public Utility Act, the certificate of convenience and necessity did not give the public utility exclusive service rights in the area against the municipal water system. Moongate Water Co., Inc. v. City of Las Cruces, 2012-NMCA-003, 269 P.3d 1, cert. granted, 2012-NMCERT-001.
City not within commission's jurisdiction. — A city operating a water facility which had not elected to come under the Public Utility Act and which had a population of less than 200,000 was not a public utility within the jurisdiction of the public utility commission (now public regulation commission). Morningstar Water Users Ass'n v. N.M. Pub. Util. Comm'n, 1995-NMSC-062, 120 N.M. 579, 904 P.2d 28.