0001|                            HOUSE BILL 215
    |
0002|     43RD LEGISLATURE - STATE OF NEW MEXICO - SECOND SESSION, 1998
    |
0003|                            INTRODUCED BY
    |
0004|                          PAULINE K. GUBBELS
    |
0005|     
    |
0006|                                   
    |
0007|     
    |
0008|       FOR THE WATER, UTILITIES AND NATURAL RESOURCES COMMITTEE
    |
0009|     
    |
0010|                                AN ACT
    |
0011|     RELATING TO WATER; PROVIDING AUTHORITY TO THE STATE ENGINEER
    |
0012|     TO ISSUE COMPLIANCE ORDERS AND OTHER ENFORCEMENT POWERS;
    |
0013|     PROVIDING A PENALTY.
    |
0014|     
    |
0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
    |
0016|          Section 1.  STATE ENGINEER--ENFORCEMENT--COMPLIANCE
    |
0017|     ORDERS--PENALTY.--
    |
0018|               A.  Whenever the state engineer determines that any
    |
0019|     person or legal entity has violated any requirement or
    |
0020|     prohibition of Chapter 72 NMSA 1978, any regulation adopted by
    |
0021|     the state engineer pursuant to those laws, or any condition of
    |
0022|     a permit or license issued by the state engineer pursuant to
    |
0023|     those laws, or any order entered by a court adjudicating a
    |
0024|     water right, the state engineer may, in addition to any other
    |
0025|     remedies available under law:
    |
<center>- 1 -</center>

0001|                    (1)  issue a compliance order stating with
    |
0002|     reasonable specificity the nature of the violation and
    |
0003|     requiring compliance within a specified time period or
    |
0004|     assessing a civil penalty for violation of a compliance order,
    |
0005|     or both; or
    |
0006|                    (2)  commence a civil action in district court
    |
0007|     for appropriate relief, including a temporary or permanent
    |
0008|     injunction.
    |
0009|               B.  This section shall in no way be construed to
    |
0010|     affect or interfere with the jurisdiction of a court or an
    |
0011|     Indian nation, tribe or pueblo to enforce its orders and
    |
0012|     decrees pertaining to water rights.
    |
0013|               C.  A compliance order issued pursuant to this
    |
0014|     section may include a suspension or revocation of a permit or
    |
0015|     license or portion of a permit or license issued by the state
    |
0016|     engineer and, if issued for overdiversion or illegal diversion
    |
0017|     of water, may require repayment of water in an amount up to
    |
0018|     double the amount of the overdiversion or illegal diversion
    |
0019|     and installation of a measuring device approved by the state
    |
0020|     engineer prior to any future diversion of water.  In
    |
0021|     determining the amount of the penalty to be assessed pursuant
    |
0022|     to this subsection, the state engineer shall take into account
    |
0023|     the seriousness of the violation, any good-faith efforts to
    |
0024|     comply with the applicable requirements and other relevant
    |
0025|     factors.
    |
<center>- 2 -</center>

0001|               D.  The following civil penalties may be assessed
    |
0002|     by the state engineer pursuant to this section:
    |
0003|                    (1)  for violating a compliance order issued
    |
0004|     for the illegal diversion of water, up to one hundred dollars
    |
0005|     ($100) per day if no previous violation of state engineer
    |
0006|     compliance orders by the violator has occurred, up to two
    |
0007|     hundred fifty dollars ($250) per day if one previous violation
    |
0008|     has occurred and up to five hundred dollars ($500) per day if
    |
0009|     two or more previous violations have occurred; and
    |
0010|                    (2)  for violating a compliance order issued
    |
0011|     for the overdiversion of water or for other violations, up to
    |
0012|     fifty dollars ($50.00) per day if no previous violation of
    |
0013|     state engineer compliance orders by the violator has occurred,
    |
0014|     up to one hundred fifty dollars ($150) per day if one previous
    |
0015|     violation has occurred and up to five hundred dollars ($500)
    |
0016|     per day if two or more previous violations have occurred.
    |
0017|               E.  A compliance order issued pursuant to this
    |
0018|     section shall become final unless the person or legal entity
    |
0019|     named in the order:
    |
0020|                    (1)  submits a written request no later than
    |
0021|     thirty days after the order is mailed by certified mail,
    |
0022|     return receipt requested, for a public hearing pursuant to
    |
0023|     Section 72-2-16 NMSA 1978, and pending the issuance of the
    |
0024|     final order after the hearing, the enforcement of a civil
    |
0025|     penalty pursuant to the compliance order shall be suspended;
    |
<center>- 3 -</center>

0001|     or
    |
0002|                    (2)  serves a notice of appeal upon the state
    |
0003|     engineer, in accordance with Section 72-7-1 NMSA 1978, within
    |
0004|     thirty days after receipt by certified mail, return receipt
    |
0005|     requested, of the order.  Any appeal to district court shall
    |
0006|     be conducted pursuant to Chapter 72, Article 7 NMSA 1978.
    |
0007|                                   
    |
0008|               
    |