45th legislature - STATE OF NEW MEXICO - first session, 2001

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. When a person violates a requirement or prohibition of Chapter 72 NMSA 1978, a rule adopted by the state engineer pursuant to those laws, 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 not 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 may include a suspension or revocation of a permit or license or portion of a permit or license issued by the state engineer. A compliance order 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 prior to any future diversion of water. In determining the amount of repayment of water, 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 state engineer shall not seek enforcement of a compliance order until the order becomes final. A compliance order shall be final unless the person 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; 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.

E. The state engineer may assess a civil penalty of up to one hundred dollars ($100) per day for violation of a final compliance order.