When New Mexico's legislature changed watershed district director selection from elections to appointments in 2025 and dropped the residency requirement built into the old election framework, did the change make it unconstitutional to require directors to live in the district?

Plain-English summary

In 2025, the New Mexico Legislature amended the Watershed District Act to switch from elected directors to appointed directors. Watershed district directors are now appointed by the boards of supervisors of soil and water conservation districts. The amendment also dropped the reference to the Local Election Act, which had implicitly required directors to be voters (and therefore residents) of the watershed district they represent.

Representative Raymundo Lara asked whether this change makes the residency requirement go away. The AG's answer: no, the residency requirement still exists, just from a different source.

Article 5, Section 13 of the New Mexico Constitution requires that "[a]ll district and municipal officers, county commissioners, school board members and municipal governing body members shall be residents of the political subdivision or district from which they are elected or for which they are appointed." The phrase "for which they are appointed" makes clear the requirement applies to appointed officers, not just elected ones. A watershed district is a "district" within the meaning of this provision (the constitution's framers used the term broadly to include water-related territorial divisions like drainage districts). Watershed district directors are therefore "district officers."

So the 2025 statutory amendment is not facially unconstitutional. It does not require nonresidents to be considered. Soil and water conservation district supervisors must read the statute together with the constitution and appoint only watershed district residents.

What this means for you

If you serve on a soil and water conservation district board of supervisors

You must appoint only residents of the watershed district to be directors. The 2025 amendment to § 73-20-12 does not abolish the residency requirement; it just sources the requirement from the New Mexico Constitution rather than from the Local Election Act.

Practical workflow:

1. When the watershed district has a director vacancy, identify candidates who reside within the watershed district's boundaries.
2. Check residency through standard means (voter registration, driver's license, deed records, utility bills).
3. Appoint and document the residency check on the record.
4. If a non-resident applies, decline based on the constitutional residency requirement.

If you are a watershed district resident interested in serving as a director

You can be appointed if you live within the watershed district. The 2025 change to appointments (rather than elections) might make the process more accessible (no campaign required), but the residency requirement is the same. Reach out to the appointing soil and water conservation district board of supervisors with your qualifications.

If you are a state legislator working on watershed or special-district legislation

This opinion is a useful caution. Even when a statute is silent on residency, the constitution may impose its own residency requirement. If you want to allow nonresident participation in a particular special district, you would need to amend the constitution, not just the statute. The opinion's constitutional reading covers a broad range of "districts" beyond the watershed context.

If you want to make the residency requirement explicit in the statute (for clarity), consider amending § 73-20-12 to restate it. The constitution will still control regardless, but a statutory restatement helps appointers know what to do.

If you are a rural property owner in a watershed district

Watershed district directors levy assessments on real property up to $5 per $1,000 of net taxable value (§ 73-20-17). They have substantial authority over water resources. Knowing that directors must be residents of the district gives you confidence that the people making these decisions have skin in the game.

If you suspect a non-resident is serving as a director, this opinion is your authority. The appointment would be invalid under N.M. Const. art. 5, § 13.

If you are a special-district attorney

The constitutional analysis here applies more broadly than just watershed districts. Anywhere New Mexico has a "district" (in the territorial sense), the same article 5, section 13 residency requirement is likely to apply to officers of that district, even if the enabling statute is silent on residency. This has implications for irrigation districts, drainage districts, conservancy districts, and similar special governmental units.

The Davy v. McNeill (1925) case carved out irrigation districts from being treated as "municipal corporations" but did not abrogate the underlying residency requirement. The exception in State ex rel. Ward v. Romero (1912) for district attorneys applies because district attorneys serve the state at large rather than a particular district.

Common questions

Q: Does this opinion mean the 2025 amendment is invalid?
A: No. The amendment is not facially unconstitutional. It does not require nonresidents to be appointed. The opinion just clarifies that the constitutional residency requirement continues to apply to the appointment process.

Q: What if a watershed district lies in two soil and water conservation districts? Who appoints the directors?
A: The 2025 amendment provides that the soil and water conservation district where the watershed district is primarily located appoints five directors, and each minority-territory soil and water conservation district appoints three more directors. All appointees must be residents of the watershed district.

Q: How does article 5, section 13 define "district"?
A: The provision does not define the term, so the AG looks to the plain meaning. "District" means "a territorial division (as for administrative or electoral purposes)." A watershed district is a territorial carve-out for water management purposes. The constitution's references elsewhere (drainage districts in art. 16, § 4) confirm that water-related territorial divisions are "districts" in the constitutional sense.

Q: Can a watershed district director be appointed without being a registered voter?
A: The constitution requires residency, not voter registration. The Local Election Act framework (which applied before the 2025 amendment) required voter registration in the area. The new framework requires residency. A resident who is not registered to vote may still qualify under the constitution.

Q: What if a director moves out of the district during their term?
A: The opinion does not address this directly, but the residency requirement is one of continuing eligibility. A director who moves out of the district likely loses eligibility to serve. The appointing board of supervisors would need to address the vacancy.

Background and statutory framework

Watershed districts in New Mexico are creatures of the Watershed District Act (NMSA 1978 §§ 73-20-1 to -24), enacted in 1957 and amended periodically. They function as subdistricts of soil and water conservation districts, formed to manage water-related issues in a defined watershed: conservation, flood prevention, erosion control, water-based recreation. They are created by petition of residents, evaluated by the soil and water conservation district board of supervisors, and confirmed by referendum.

A watershed district board has substantial authority: it can acquire rights of way, construct structures, borrow money (subject to anti-debt provisions), and most consequentially, levy assessments on real property in the district up to $5 per $1,000 of net taxable value (§ 73-20-17). Directors of these boards are therefore "officers" with real public authority.

Before 2025, directors were elected. The 2019 version of § 73-20-12 set up a five-member board with elections conducted under the Local Election Act, which required candidates to be registered voters in the area they represented (§ 1-22-10(A)). That voter-registration requirement implicitly imposed a residency requirement.

The 2025 amendment switched to appointments. It also removed the Local Election Act reference, which dropped the implicit residency requirement at the statutory level.

The constitutional argument the AG makes:

Article 5, Section 13 of the New Mexico Constitution (since statehood in 1912) provides:

All district and municipal officers, county commissioners, school board members and municipal governing body members shall be residents of the political subdivision or district from which they are elected or for which they are appointed.

The phrase "for which they are appointed" puts appointed officers on equal footing with elected ones. The phrase "district officers" includes officers of any "district" in the territorial sense, which (per N.M. Educ. Retirement Bd. v. Romero, 2024-NMCA-013) is read in plain-language terms.

The opinion handles two potential exceptions:

• Davy v. McNeill (1925) held that irrigation districts are not "municipal corporations." The AG distinguishes Davy: it didn't abrogate the residency requirement, just held the district wasn't a municipal corporation in a different statutory context.
• State ex rel. Ward v. Romero (1912) held that district attorneys are not "district officers" because they serve "the State as a whole" through the judicial system. Watershed district directors, by contrast, manage a specific district's resources, so the rule applies to them.

The AG also applies a basic constitutional canon: facial challenges are difficult, courts presume statutes are constitutional, and where a statute can be read consistently with the constitution, that reading prevails (El Castillo Retirement Residences v. Martinez, 2017; Madera Cnty. v. Gendron, 1963).

Citations and references

Statutes and Constitution:
- NMSA 1978 §§ 73-20-1 to -24 (Watershed District Act)
- NMSA 1978 § 73-20-12 (2025) (board of directors)
- NMSA 1978 § 73-20-17 (assessment authority)
- NMSA 1978 §§ 1-22-1 to -20 (Local Election Act)
- N.M. Const. art. 5 § 13 (district officer residency)
- N.M. Const. art. 16 § 4 (drainage districts)

Cases:
- N.M. Educ. Retirement Bd. v. Romero, 2024-NMCA-013
- Davy v. McNeill, 1925-NMSC-040, 31 N.M. 7
- State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88
- United States v. Salerno, 481 U.S. 739 (1987) (facial challenge standard)
- El Castillo Retirement Residences v. Martinez, 2017-NMSC-026 (presumption of constitutionality)
- Gruschus v. Bureau of Revenue, 1965-NMSC-013

Source

• Landing page: https://nmdoj.gov/publications/opinions/
• Original PDF: https://nmdoj.gov/wp-content/uploads/Attorney-General-Opinion-2026-05.pdf

Original opinion text

March 31, 2026

OPINION OF RAÚL TORREZ
Attorney General

Opinion No. 2026-05

To: Representative Raymundo Lara, New Mexico House of Representatives
Re: Attorney General Opinion – Constitutionality of Elimination of Residency Requirements for Watershed District Directors

Question

Does the 2025 amendment to NMSA 1978, Section 73-20-12 (2025), which replaced the election of watershed district directors with appointment of the same and eliminated the residency requirements inherent in such elections, violate the Constitution of New Mexico?

Short Answer

No. As a result of the 2025 amendment, Section 73-20-12 no longer contains, via the Local Elections Act, a residency requirement for district directors. However, the New Mexico Constitution requires residency for "district officers." N.M. Const art. 5, § 13. Although the 2025 amendment contains no language requiring nonresidents to be considered for the position, supervisors of soil and water conservation districts still can and must comply with the New Mexico Constitution by only considering residents of a watershed district for a director position for that district.

Background

The Watershed District Act, NMSA 1978, §§ 73-20-1 to -24 (1957, as amended through 2025), was passed "to secure the federal assistance provided in [P.L. 83-566], and amendatory legislation, for New Mexico in its program to further the conservation, development, utilization, flood prevention and disposal of water, and thereby preserve and protect New Mexico's land and water resources." Section 73-20-3. The Act provides for the creation of watershed districts as subdistricts of soil and water conservation districts in a watershed area, as provided in the Watershed District Act, for the purpose of developing and executing plans and programs relating to any phase of conservation of water, or of water usage, including water-based recreation, flood prevention, flood control, erosion prevention and control of erosion, and floodwater and sediment damages.

Section 73-20-4. The districts "must be contiguous and must lie within a well-defined watershed area or subwatershed areas." Section 73-20-5. The districts may lie within one or more soil and water conservation districts. Id.

A watershed district is to be created upon a petition of the residents of the proposed district to board of supervisors of the soil and water conservation district or districts where the proposed watershed district is located. Sections 73-20-5 & -6. If the board of supervisors determines that the district is in the interests of public health, safety, and welfare, and that a district with the proposed boundaries is practicable and feasible, it orders a referendum. If the proposal gets a majority of votes cast in the referendum, the district is created. Sections 73-20-9 & -11.

A watershed district is governed by a board of directors, § 73-20-12, the selection of which is the subject of this opinion. The board of directors has the authority to acquire rights of way, construct structures, borrow money (subject to anti-debt provisions), and cooperate with other governmental entities in carrying out purposes of the Watershed District Act. Section 73-20-13. Most significantly, it has the power to levy an assessment on real property in a watershed district not to exceed 5 dollars per $1000 of net taxable value. Section 73-20-17.

Prior to 2025, watershed district boards were elected: a board of directors consisted of five members unless the district was in two soil and water conservation districts, in which case an additional three members would be elected from each soil and water conservation district that had between zero and 50% of the watershed district's total land. NMSA 1978, § 73-20-12 (2019, amended 2025). Elections were required to be conducted in compliance with the Local Election Act, NMSA 1978, §§ 1-22-1 to -20 (1985, as amended through 2025). In relevant part, the Local Election Act requires candidates to be registered to vote in the area that they represent. Section 1-22-10(A) ("The proper filing officer shall determine whether a candidate filing a declaration of candidacy is registered to vote within the area to be elected to represent").

In 2025, the Legislature amended Section 73-20-12, replacing elections for directors with direct appointments: the five directors of a watershed district are now appointed by the Board of Supervisors for the soil and water conservation district in which the watershed district is located. Section 73-20-12(A). If the watershed district lies within two or more soil and water conservation districts, then each soil and water conservation district with a minority of the territory of the watershed district appoints three more directors. § 73-20-12(C) (2025). The change also eliminated a reference to the Local Elections Act, and with it any residency requirement. Therefore, some may interpret the new amendment as eliminating the requirement. We are asked to opine as to the constitutionality of such interpretation.

Analysis

In evaluating the constitutionality of any elimination of the residency requirement, we first turn to the language of the New Mexico Constitution, which explicitly requires directors to be residents of their districts:

All district and municipal officers, county commissioners, school board members and municipal governing body members shall be residents of the political subdivision or district from which they are elected or for which they are appointed. Counties, school districts and municipalities may be divided by their governing bodies into districts composed of populations as nearly equal as practicable for the purpose of electing the members of the respective governing bodies

N.M. Const. art. 5, § 13 (emphasis added).

Thus, a "district officer" as described by Article 5, Section 13 of the N.M. Constitution, must be a resident of that district, even if appointed. To determine whether this requirement applies to the Watershed District Act, we consider whether a watershed district board member is a "district officer," pursuant to this section. We therefore consider whether a "special district," like a watershed district, is considered a "district" under the New Mexico Constitution.

The term "district" is not explicitly defined in the Constitution, so we look to the plain language definition of the term. According to Merriam-Webster Dictionary, the first and most relevant definition of "district" is "a territorial division (as for administrative or electoral purposes)." A watershed district is a carve out of land, or territory, for the purposes of administering the resources of a watershed, § 73-20-4; as such, it would be reasonably encompassed by that definition. Moreover, the framers of our Constitution clearly contemplated that the word "district" would encompass carve outs of territory for the purpose of management of water resources: for instance, the Constitution states that "the legislature is authorized to provide by law for the organization and operation of drainage districts and systems." N.M. Const., art. 16. § 4 (emphasis added). The use of the term "district" in that context indicated that the framers intended that the term would include the type of entity at issue here: a subdivision of the state carved out for the purpose of water conservation and administration.

We note that the term "district" appears in the first paragraph of Article 5, Section 13, which is followed by a second paragraph that describes how counties, school districts, and municipalities may be divided into districts. Although it may seem that the requirement that district officers be residents of the district from which they are appointed might only apply in the context of counties, school districts, and municipalities, this conclusion is unsupported in our law for at least two reasons. First, the first paragraph of the Section has been part of the Constitution since statehood in 1912, whereas the second paragraph was not added until an amendment in 1960. H.J.R. 8 (1959). Thus, the term "district" should be considered independently of the subsequent amendment. Second, the Section describes a category of official called "district officers," which are distinct from county officers, school district officers, municipal officers, and county commissioners. If the term "district" could only be considered in the context of the second paragraph, then the term "district officer" would be rendered superfluous.

Finally, we acknowledge two cases that address adjacent issues but do not require a different result here. First, Davy v. McNeill, 1925-NMSC-040, 31 N.M. 7, appears to limit the application of Article 5, Section 13 in the case of irrigation districts, which, like watershed districts, are special districts. However, Davy is inapposite because it only held that such districts are not "municipal corporations" in the context of that Section and others. Moreover, Davy concerned, among other things, the Legislature's ability to narrow eligibility for the position, not its authority to widen it. Second, State ex rel. Ward v. Romero, 1912-NMSC-011, 17 N.M. 88, did exempt district attorneys from the requirements of Article 5, Section 13, stating that the position was not a "district officer." However, unlike a watershed district director, a district attorney does not play any role in the governance of a district or political subdivision. Rather, the district attorney represents the interests of the State as a whole in various judicial proceedings, "as part of the judicial system of the state." Id. ¶ 4. Thus, a district attorney is part of the general government of the State" and "administers . . . functions for the people at large." Id. ¶ 21. It was for this reason that the district attorney was considered a state officer.

It is thus clear that the Constitution requires a watershed director to be a resident of that district. However, it does not follow that the 2025 Amendment is facially unconstitutional. While the Watershed Districts Act no longer incorporates by reference the residency requirement in the Local Elections Act, it does not require that nonresidents be considered for the director position. Moreover, "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). Indeed, courts "presume that enactments of the Legislature are within constitutional boundaries, and [they] give effect to the legislative intent unless it clearly appears to be in conflict with the Constitution." El Castillo Retirement Residences v. Martinez, 2017-NMSC-026, ¶ 27. While the Amendment is not facially unconstitutional, a soil and water district board of supervisors is required to read the statute and the N.M. Constitution together and only consider watershed district director candidates who reside in that watershed district.

Conclusion

An interpretation of the 2025 amendments to the Watershed District Act that would eliminate the residency requirement for members of boards of directors would be unconstitutional. However, even though the Act no longer incorporates, by reference to the Local Elections Act, a residency requirement, the requirement set forth in the Constitution still stands: soil and water conservation district supervisors can and must impose the residency requirement when selecting watershed district directors.

Please note that this opinion is a public document and is not protected by the attorney-client privilege. It will be published on our website and made available to the general public.

RAÚL TORREZ
ATTORNEY GENERAL
/s/ Lawrence M. Marcus
Lawrence M. Marcus
Assistant Solicitor General