HOUSE AGRICULTURE AND WATER RESOURCES COMMITTEE SUBSTITUTE FOR

HOUSE BILL 201

51st legislature - STATE OF NEW MEXICO - first session, 2013

AN ACT

RELATING TO WATER; PROVIDING FOR DIRECT APPEAL TO THE DISTRICT COURT FOR CERTAIN DECISIONS OR ACTIONS BY THE STATE ENGINEER.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 72-2-16 NMSA 1978 (being Laws 1965, Chapter 285, Section 4, as amended) is amended to read:

     "72-2-16. HEARINGS REQUIRED BEFORE APPEAL.--

          A. The state engineer may order that a hearing be held before [he] the state engineer enters a decision, acts or refuses to act.

          B. If, without holding a hearing, the state engineer enters a decision, acts or refuses to act [any person] on an application that has not been protested, the applicant, if aggrieved by the decision, act or refusal to act:

                (1) is entitled to a hearing if a request for a hearing is made in writing within thirty days after receipt by certified mail of notice of the decision, act or refusal to act; or

                (2) may request that the state engineer authorize an appeal of the decision, act or refusal to act directly to district court by submitting a written request to the state engineer within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. If the state engineer determines that an immediate appeal to district court from the decision, act or refusal to act would materially advance the ultimate termination of the proceeding, the state engineer shall so state in a written order, which order shall also specify the issue or issues to be addressed on appeal. The applicant shall take the appeal to the district court by serving a notice of appeal as required by Subsection B of Section 72-7-1 NMSA 1978 within thirty days after receipt by certified mail of notice of the state engineer's order authorizing the appeal. If in response to a request, the state engineer does not authorize a direct appeal to district court, then the matter shall be set for hearing pursuant to Paragraph (1) of this subsection.

          C. An order by the state engineer to hold a

hearing in accordance with the provisions of Subsection A of this section, the state engineer's referral of the matter to mediation or alternative dispute resolution or the state engineer's decision in accordance with Paragraph (2) of Subsection B of this section not to authorize a direct appeal to district court shall not constitute a decision, act or refusal to act by the state engineer under Subsection B of this section.

           D. Hearings shall be held before the state engineer or [his] the state engineer's appointed examiner. A record shall be made of all hearings. [No] Except as provided for in Paragraph (2) of Subsection B of this section, an appeal shall not be taken to the district court until the state engineer has held a hearing and entered [his] a decision in the hearing."

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