HOUSE BILL 1070
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Joseph Cervantes
AN ACT
RELATING TO WATER; AMENDING THE GROUND WATER STORAGE AND RECOVERY ACT TO PROVIDE ELIGIBILITY FOR GROUND WATER STORAGE AND RECOVERY BY A PUBLIC UTILITY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 72-5A-3 NMSA 1978 (being Laws 1999, Chapter 285, Section 3, as amended) is amended to read:
"72-5A-3. DEFINITIONS.--As used in the Ground Water Storage and Recovery Act:
A. "aquifer" means a geologic formation that contains sufficient saturated material to be capable of storing and transmitting water in usable quantities to a well;
B. "area of hydrologic effect" means the underground area where the water is stored and located, hydrologically connected surface waters, adjacent underground areas in which water rights exist that may be impaired, the land surface above the underground areas and any additional land surface used for seepage or infiltration;
C. "governmental entity" means the interstate stream commission, an Indian nation, tribe or pueblo or state political subdivision, including a municipality, county, acequia, irrigation district or conservancy district;
D. "project" means a permitted, engineered facility designed specifically, constructed and operated pursuant to the Ground Water Storage and Recovery Act, to add measured volumes of water by injection or infiltration to an aquifer or system of aquifers, to store the water underground and to recover it for beneficial use pursuant to the Ground Water Storage and Recovery Act but shall not include in situ leach mining operations or water flood operations for petroleum recovery that require approval by the state engineer outside the Ground Water Storage and Recovery Act; [and]
E. "public utility" means a person not engaged solely in interstate business and, except as provided in Sections 62-3-4 and 62-3-4.1 NMSA 1978, that owns, operates, leases or controls:
(1) a facility for storing or distributing to the public water for manufacturing, municipal, domestic or other uses except agricultural irrigation; or
(2) a facility for providing public sanitary sewer services; and
(3) has a certificate of public convenience and necessity from the public regulation commission; and
[E.] F. "stored water" means water that has been stored underground for the purpose of recovery and permitted pursuant to the Ground Water Storage and Recovery Act."
Section 2. Section 72-5A-4 NMSA 1978 (being Laws 1999, Chapter 285, Section 4) is amended to read:
"72-5A-4. PERMIT REQUIRED.--
A. No public utility or governmental entity may construct and operate a storage and recovery project in a declared ground water basin without a permit from the state engineer and other permits that may be required.
B. The state engineer shall prescribe application forms for a permit. The application shall include:
(1) an application fee in the amount of five thousand dollars ($5,000) plus five dollars ($5.00) per acre-foot of the annual capacity of the proposed storage and recovery project, not to exceed fifty thousand dollars ($50,000); an annual fee of fifty cents ($.50) per acre-foot of water stored, payable upon submission of the annual report required by the Ground Water Storage and Recovery Act;
(2) the name and mailing address of the applicant;
(3) the name and mailing address of the owner of the land on which the applicant proposes to operate the project;
(4) the name of the declared underground water basin in which the applicant proposes to operate the project;
(5) the legal description of the location of the proposed project;
(6) evidence of financial and technical capability;
(7) the source, annual quantity and quality of water proposed to be injected and the quality of water in the receiving aquifer;
(8) the identification, characteristics, capacity and location of each recharge and recovery well, including existing pre-basin wells, existing permitted wells and new wells sought to be drilled for recharge or recovery pursuant to the application and the identification of existing permitted and declared wells in the underground area [effected] affected by storage and recovery operations;
(9) a description of the proposed project, including its capacity, plan of operation and percentage of anticipated recoverable water;
(10) evidence that the applicant has a valid water right quantified by one of the following legal processes:
(a) a water rights adjudication;
(b) a consent decree;
(c) an act of congress, including a negotiated settlement ratified by congress;
(d) a contract pursuant to 43 USC 620 et. seq.; or
(e) an agreement with an owner who has a valid water right subject to an application for a change in purpose, place of use or point of diversion;
(11) a project plan that:
(a) shows that the project will not cause harm to users of land and water within the area of hydrologic effect;
(b) demonstrates that the project is hydrologically feasible;
(c) demonstrates that the project will not impair existing water rights or the state's interstate obligations;
(d) demonstrates that the project will not be contrary to the conservation of water within the state; and
(e) demonstrates that the project will not be detrimental to the public welfare of the state;
(12) a sworn statement executed by the owner of the land that the applicant is granted an easement and authorization to construct and operate the project on the site, if project facilities are located on land not owned by the applicant;
(13) copies of completed applications for all other permits required under state and federal law;
(14) the proposed duration of the permit; and
(15) any additional information required by the state engineer."
Section 3. Section 72-5A-5 NMSA 1978 (being Laws 1999, Chapter 285, Section 5) is amended to read:
"72-5A-5. NOTICE--PROTESTS--HEARINGS--DETERMINATIONS--JUDICIAL REVIEW.--
A. Upon receipt of an application for a permit to construct and operate a project, the state engineer shall endorse on the application the date it was received and shall keep a record of the application. The state engineer shall conduct an initial review of the application within sixty days of receipt. If the state engineer determines in the initial review that the application is incomplete, the state engineer shall notify the applicant of the application's deficiencies. The application shall remain incomplete until the applicant provides all information required by the Ground Water Storage and Recovery Act. The state engineer may request additional information from the applicant and shall conduct an investigation of the project.
B. Within thirty days after determining that an application is complete, unless an extension is requested by the applicant, the applicant shall publish a notice of the application in a newspaper of general circulation in the county in which persons reside who could reasonably be expected to be affected by the project. The notice shall be given once a week for three consecutive weeks and shall contain:
(1) the legal description of the location of the proposed project;
(2) a brief description of the proposed project, including its capacity;
(3) the name of the applicant;
(4) the date of the last publication;
(5) the requirements for an objection; and
(6) disclosure that objections to the application shall be filed within ten days after the last publication of the notice.
C. A person objecting that the granting of the application will impair the objector's water right, will be contrary to the conservation of water or will be detrimental to the public welfare 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 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.
D. An objection shall be filed in writing, include the name and mailing address of the objector, identify the grounds for the objection and include the signature of the objector or his legal representative. The state engineer shall schedule a hearing on the application and provide at least thirty days' notice of the hearing, by certified mail, to the applicant and any objector.
E. After the expiration of the time for filing objections, if no objections have been filed, the state engineer shall, if he finds that the application meets the requirements of the Ground Water Storage and Recovery Act, issue a permit to the applicant to construct the project to store and recover all or a part of the waters applied for, as conditioned by the state engineer.
F. A person, public utility or governmental entity aggrieved by any decision of the state engineer may appeal that decision to the district court pursuant to Section 72-7-1 NMSA 1978."
Section 4. Section 72-5A-10 NMSA 1978 (being Laws 1999, Chapter 285, Section 10) is amended to read:
"72-5A-10. ANNUAL REPORT TO STATE ENGINEER--PENALTY FOR FAILURE TO FILE.--
A. Each permittee shall file an annual report with the state engineer that includes:
(1) the total quantity of stored water and recovered water;
(2) the water quality of the stored water, the receiving aquifer and the recovered water;
(3) a sworn affidavit attesting to the truthfulness and accuracy of the report's data; and
(4) a measurement of the static level of the water table.
B. The annual report shall be maintained on a calendar year basis and shall be filed with the state engineer no later than March 31 for the preceding year. If a public utility or governmental entity required to file an annual report fails to do so when due, the state engineer may assess and impose a penalty of five hundred dollars ($500) for each month or portion of a month that the report is not filed. The total penalty assessed annually pursuant to this subsection shall not exceed five thousand dollars ($5,000).
C. All records and reports required to be maintained and filed pursuant to this section shall be in a form prescribed by the state engineer."
Section 5. Section 72-5A-11 NMSA 1978 (being Laws 1999, Chapter 285, Section 11) is amended to read:
"72-5A-11. REVOCATION OR SUSPENSION OF PERMITS--ORDERS TO CEASE AND DESIST--INJUNCTION.--
A. The state engineer may periodically review a project to determine if the permittee is complying with the terms and conditions of the permit. The state engineer may permanently revoke or temporarily suspend a permit for good cause after an investigation and a hearing before the state engineer or a hearing officer appointed by him. Notice shall be sent, by certified mail, to the permittee at least thirty days before any hearing on a revocation or suspension disclosing the permittee's alleged failure to comply with the permit's terms and conditions.
B. Except as otherwise provided in this section, if the state engineer has reason to believe that a person, public utility or governmental entity has violated a provision of the Ground Water Storage and Recovery Act or a permit issued or [regulation] rule adopted pursuant to that act, the state engineer may issue a written notice that the person, public utility or governmental entity appear and show cause, at a hearing before the state engineer not less than fifteen days after the receipt of the notice, why the person, public utility or governmental entity should not be ordered to cease and desist from the violation. The notice shall inform the person, public utility or governmental entity of the date, time and place of the hearing and the consequences of the person's, public utility's or governmental entity's failure to appear.
C. If the state engineer finds that a person, public utility or governmental entity is constructing or operating a project in violation of the Ground Water Storage and Recovery Act, the state engineer may issue a temporary order for the person, public utility or governmental entity to cease and desist the construction or operation pending final action by the state engineer pursuant to this section. The order shall include written notice to the person, public utility or governmental entity of the date, time and place where the person, public utility or governmental entity shall appear at a hearing before the state engineer to show cause why the temporary order should be vacated. The hearing shall be held not less than fifteen days after the date of the order.
D. After a hearing pursuant to this section, or after the expiration of the time to appear, the state engineer shall issue a decision and order. The decision and order shall be in a form as the state engineer determines to
be reasonable and appropriate and may include a determination of violation, an order to cease and desist, the recommendation of a civil penalty and an order directing that positive steps be taken to abate or ameliorate any harm or damage arising from the violation. Any person, public utility or governmental entity affected may appeal the decision to the district court pursuant to Section 72-7-1 NMSA 1978.
E. If a person, public utility or governmental entity continues a violation after the state engineer has issued a decision and order pursuant to this section or a temporary order pursuant to this section, the state engineer may apply for a temporary restraining order or a preliminary or permanent injunction from the district court. A decision to seek injunctive relief does not preclude other forms of relief or enforcement against a violator."
Section 6. Section 72-5A-12 NMSA 1978 (being Laws 1999, Chapter 285, Section 12) is amended to read:
"72-5A-12. PENALTIES.--
A. A person who or governmental entity or public utility that is determined to be in violation of the Ground Water Storage and Recovery Act or a permit issued or rules adopted pursuant to the act may be assessed a civil penalty in an amount not exceeding:
(1) one hundred dollars ($100) per day of violation not directly related to the illegal recovery or use of stored water; or
(2) ten thousand dollars ($10,000) per day
of violation directly related to the illegal recovery or use of stored water.
B. An action to recover penalties pursuant to this section shall be brought by the state engineer in the district court in which the violation occurred."
Section 7. Section 72-5A-17 NMSA 1978 (being Laws 1999, Chapter 285, Section 17) is amended to read:
"72-5A-17. DELAYED IMPLEMENTATION.--A public utility or governmental entity shall not submit an application pursuant to the Ground Water Storage and Recovery Act, and the state engineer shall not process an application, issue a [regulation] rule pursuant to that act or implement any part of that act unless the state engineer has been appropriated enough money or has sufficient resources to carry out the provisions of that act."
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