44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO WATER; PROVIDING AUTHORITY TO THE STATE ENGINEER TO ISSUE COMPLIANCE ORDERS AND OTHER ENFORCEMENT POWERS; PROVIDING A PENALTY.

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

Section 1. STATE ENGINEER--ENFORCEMENT--COMPLIANCE ORDERS--PENALTY.--

A. Whenever the state engineer determines that a person or legal entity has violated a requirement or prohibition of Chapter 72 NMSA 1978, a regulation adopted by the state engineer pursuant to those laws, or a condition of a permit or license issued by the state engineer pursuant to those laws, or an order entered by a court adjudicating a water right, the state engineer may, in addition to any other remedies available under law:

(1) issue a compliance order stating with reasonable specificity the nature of the violation and requiring compliance within a specified time period; or

(2) commence a civil action in district court for appropriate relief, including a temporary or permanent injunction.

B. This section shall in no way be construed to affect or interfere with the jurisdiction of a court or an Indian nation, tribe or pueblo to enforce its orders and decrees pertaining to water rights.

C. A compliance order issued pursuant to this section may include a suspension or revocation of a permit or license or portion of a permit or license issued by the state engineer and, if issued for overdiversion or illegal diversion of water, may require repayment of water in an amount up to double the amount of the overdiversion or illegal diversion and installation of a measuring device approved by the state engineer prior to any future diversion of water. In determining the amount of the penalty to be assessed pursuant to this subsection, the state engineer shall take into account the seriousness of the violation, any good-faith efforts to comply with the applicable requirements and other relevant factors.

D. The following civil penalties may be assessed by the state engineer pursuant to this section for violating a final compliance order:

(1) up to one hundred dollars ($100) per day if no previous violation of state engineer compliance orders by the violator has occurred;

(2) up to two hundred fifty dollars ($250) per day if one previous violation has occurred; or

(3) up to five hundred dollars ($500) per day if two or more previous violations have occurred.

E. A compliance order issued pursuant to this section shall become final unless the person or legal entity named in the order:

(1) submits a written request no later than thirty days after the order is mailed by certified mail, return receipt requested, for a public hearing pursuant to Sections 72-2-16 and 72-2-17 NMSA 1978, and pending the issuance of the final order after the hearing, the enforcement of a civil penalty pursuant to the compliance order shall be suspended; or

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