0001|     HOUSE AGRICULTURE AND WATER RESOURCES COMMITTEE SUBSTITUTE FOR
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0002|     
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0003|                            HOUSE BILL 261
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0004|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0005|                                   
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0006|     
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0007|     
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0008|                                   
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0009|     
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0010|     
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0011|     
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0012|                                AN ACT
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0013|     RELATING TO WATER; ENACTING A NEW SECTION OF THE NMSA 1978 TO
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0014|     PROVIDE AUTHORITY TO THE STATE ENGINEER TO ISSUE COMPLIANCE
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0015|     ORDERS AND OTHER ENFORCEMENT POWERS; PROVIDING A PENALTY.
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0016|     
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0017|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0018|          Section 1.  STATE ENGINEER--ENFORCEMENT--COMPLIANCE
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0019|     ORDERS--PENALTY.--
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0020|               A.  Whenever the state engineer determines that any
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0021|     person or legal entity has violated any requirement or
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0022|     prohibition pursuant to Chapter 72 NMSA 1978, any regulation
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0023|     adopted by the state engineer pursuant to those laws, or any
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0024|     condition of a permit or license issued by the state engineer
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0025|     pursuant to those laws, or any order entered by a court
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0001|     adjudicating a water right, the state engineer may, in addition
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0002|     to any other remedies available under law:
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0003|                    (1)  issue a compliance order stating with
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0004|     reasonable specificity the nature of the violation and
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0005|     requiring compliance within a specified time period or
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0006|     assessing a civil penalty for violation of a compliance order,
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0007|     or both; or
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0008|                    (2)  commence a civil action in district court
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0009|     for appropriate relief, including a temporary or permanent
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0010|     injunction.
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0011|               B.  This section shall in no way be construed to
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0012|     affect or interfere with the jurisdiction of a court to enforce
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0013|     its orders and decrees pertaining to water rights.
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0014|               C.  A compliance order issued pursuant to this
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0015|     section may include a suspension or revocation of any permit or
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0016|     license or portion of a permit or license issued by the state
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0017|     engineer, and, if issued for overdiversion or illegal diversion
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0018|     of water, may require repayment of water in an amount double
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0019|     the amount of the overdiversion or illegal diversion and
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0020|     installation of a measuring device approved by the state
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0021|     engineer prior to any future diversion of water.  Any penalty
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0022|     assessed in the order shall not exceed five hundred dollars
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0023|     ($500) per day for noncompliance with the order.  In
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0024|     determining the amount of any penalty to be assessed pursuant
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0025|     to this subsection, the state engineer shall take into account
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0001|     the seriousness of the violation, any good-faith efforts to
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0002|     comply with the applicable requirements and other relevant
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0003|     factors.  The state engineer shall adopt regulations
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0004|     establishing rates at which monetary penalties will be assessed.
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0005|               D.  A compliance order issued pursuant to this section
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0006|     shall become final unless the person or legal entity named in the
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0007|     order:
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0008|                    (1)  submits a written request no later than
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0009|     thirty days after the order is mailed by certified mail, return
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0010|     receipt requested, for a public hearing pursuant to Section
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0011|     72-2-16 NMSA 1978, and pending the issuance of the final order
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0012|     after the hearing, the enforcement of a civil penalty pursuant to
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0013|     the compliance order shall be suspended; or
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0014|                    (2)  serves a notice of appeal upon the state
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0015|     engineer, in accordance with Section 72-7-1 NMSA 1978, within
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0016|     thirty days after receipt by certified mail, return receipt
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0017|     requested, of the order.  Any appeal to district court shall be
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0018|     conducted pursuant to Chapter 72, Article 7 NMSA 1978. 
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0019|               E.  Penalties collected pursuant to a compliance order
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0020|     shall be deposited in the New Mexico irrigation works construction
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0021|     fund.
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0022|                               
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