HOUSE BILL 573
46th legislature - STATE OF NEW MEXICO - second session, 2004
INTRODUCED BY
Joseph Cervantes
AN ACT
RELATING TO THE STATE ENGINEER; CHANGING CIVIL PROCEDURES IN STATE ENGINEER ADMINISTRATIVE HEARINGS; CLARIFYING WHO HAS STANDING TO PROTEST PENDING WATER RIGHTS APPLICATIONS ON THE BASIS OF IMPAIRMENT; CHANGING QUALIFICATIONS FOR ADMINISTRATIVE HEARING OFFICERS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 72-2-12 NMSA 1978 (being Laws 1965, Chapter 285, Section 1) is amended to read:
"72-2-12. HEARING EXAMINERS.--In addition to the powers and authority, either express or implied, granted to the state engineer by other statutes of the state [of New Mexico], the state engineer is [hereby] given the authority and power in formulating rules and regulations, subject to the provisions of Section [5] 72-2-17 NMSA 1978, in connection with hearings or other proceedings before him to provide for the appointment of one or more examiners to conduct hearings with respect to matters properly coming before the state engineer and to make reports and recommendations [with respect thereto]. The state engineer, subject to the provisions of Section [5] 72-2-17 NMSA 1978, shall promulgate, print and make available in the office of the state [engineer's office] engineer rules and regulations with regard to hearings to be conducted before examiners, and the powers and duties of the examiners in any particular case may be limited by order of the state engineer to particular issues or to the performance of particular actions. In the absence of any limiting order, an examiner appointed to hear any particular case shall have the power to regulate all proceedings before him and to perform acts and to take all measures necessary or proper for the efficient and orderly conduct of such hearing, including the swearing of witnesses, receiving of testimony and exhibits offered in evidence subject to such objections as may be imposed, and shall cause a complete record of the proceedings to be made and shall make his report and recommendations [in connection therewith] to the state engineer. The state engineer shall base his decision rendered in any matter heard by an examiner upon the record made by or under the supervision of the examiner in connection with such proceeding and the report and recommendation of the examiner [and]. His decision shall have the same [force and] effect as if [said] the hearing had been conducted by the state engineer. Persons appointed by the state engineer as hearing examiners shall be knowledgeable in the water laws of this state [water engineering] and administrative hearing procedures and, if necessary, water engineering or hydrology."
Section 2. Section 72-2-17 NMSA 1978 (being Laws 1965, Chapter 285, Section 5) is amended to read:
"72-2-17. HEARING--NOTICE--CONDUCT--RECORD.--
A. After a written request for hearing has been filed, the state engineer shall notify the [requestor] requester and all interested parties by registered or certified mail, return receipt requested, of the hearing. The notice shall include:
(1) the time, place, date and nature of the hearing, which time shall be not less than five nor more than sixty days from the date of filing of the request for hearing; provided that the state engineer may for good cause or upon stipulation of the parties set the hearing for a later date; and
(2) the legal authority and jurisdiction under which the hearing will be held.
B. In the conduct of the hearing:
(1) opportunity shall be afforded all parties to appear and present evidence and argument on all issues involved;
(2) irrelevant, immaterial or unduly repetitious evidence shall be excluded. The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be generally followed; however, when it is necessary to ascertain facts not reasonably susceptible of proof under these rules, evidence not admissible thereunder may be admitted if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. Objections to evidentiary offers may be made and shall be noted in the record. Subject to these requirements, when a hearing will be expedited and interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form;
(3) a party may have and be represented by counsel and may conduct cross-examinations required for a full and true disclosure of the facts;
(4) notice may be taken of judicially cognizable facts. In addition, notice may be taken of generally recognized technical or scientific facts within the state engineer's specialized knowledge;
(5) oral proceedings or any part thereof shall be transcribed on request of any party; [and]
(6) findings of fact shall be based exclusively on the evidence and on matters officially noticed; and
(7) the Rules of Civil Procedure for the District Courts of New Mexico shall be generally followed.
C. The state engineer or his appointed hearing examiner shall make a record of the hearing, which shall include:
(1) all pleadings, motions and intermediate rulings;
(2) evidence received or considered;
(3) a statement of the matters officially noticed;
(4) questions and offers of proof, objections and rulings thereon;
(5) any proposed findings submitted; and
(6) any decision, opinion or report by the state engineer or hearing examiner conducting the hearing."
Section 3. Section 72-12-3 NMSA 1978 (being Laws 1931, Chapter 131, Section 3, as amended) is amended to read:
"72-12-3. APPLICATION FOR USE OF UNDERGROUND WATER--PUBLICATION OF NOTICE--PERMIT.--
A. Any person, firm or corporation or any other entity desiring to appropriate for beneficial use any of the waters described in Chapter 72, Article 12 NMSA 1978 shall apply to the state engineer in a form prescribed by him. In the application, the applicant shall designate:
(1) the particular underground stream, channel, artesian basin, reservoir or lake from which water will be appropriated;
(2) the beneficial use to which the water will be applied;
(3) the location of the proposed well;
(4) the name of the owner of the land on which the well will be located;
(5) the amount of water applied for;
(6) the place of the use for which the water is desired; and
(7) if the use is for irrigation, the description of the land to be irrigated and the name of the owner of the land.
B. If the well will be located on privately owned land and the applicant is not the owner of the land or the owner or the lessee of the mineral or oil and gas rights under the land, the application shall be accompanied by an acknowledged statement executed by the owner of the land that the applicant is granted access across the owner's land to the drilling site and has permission to occupy such portion of the owner's land as is necessary to drill and operate the well. This subsection does not apply to the state or any of its political subdivisions. If the application is approved, the applicant shall have the permit and statement, executed by the owner of the land, recorded in the office of the county clerk of the county in which the land is located.
C. No application shall be accepted by the state engineer unless it is accompanied by all the information required by Subsections A and B of this section.
D. Upon the filing of an application, the state engineer shall cause to be published in a newspaper that is published and distributed in the county where the well will be located and in each county where the water will be or has been put to beneficial use or where other water rights may be affected, or if there is no such newspaper, then in some newspaper of general circulation in the county in which the well will be located, at least once a week for three consecutive weeks, a notice that the application has been filed and that objections to the granting of the application may be filed within ten days after the last publication of the notice. Any person, firm or corporation or other entity objecting that the granting of the application will substantially and specifically impair the objector's water right shall have standing to file objections or protests. Any person, firm or corporation or other entity objecting that the granting of the application will be contrary to the conservation of water within the state or detrimental to the public welfare of the state and showing that the objector will be substantially and specifically affected by the granting of the application shall have standing to file objections or protests; provided, however, that the state of New Mexico or any of its branches, agencies, departments, boards, instrumentalities or institutions, and all political subdivisions of the state and their agencies, instrumentalities and institutions shall have standing to file objections or protests.
E. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if he finds that there are in the underground stream, channel, artesian basin, reservoir or lake unappropriated waters or that the proposed appropriation would not impair existing water rights from the source, is not contrary to conservation of water within the state and is not detrimental to the public welfare of the state, grant the application and issue a permit to the applicant to appropriate all or a part of the waters applied for, subject to the rights of all prior appropriators from the source.
F. If objections or protests have been filed within the time prescribed in the notice or if the state engineer is of the opinion that the permit should not be issued, the state engineer may deny the application without a hearing or, before he acts on the application, may order that a hearing be held. He shall notify the applicant of his action by certified mail sent to the address shown in the application."
Section 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2004.