HB 111

1AN ACT
2  RELATING TO WATER; INCREASING THE MAXIMUM PENALTY FOR A
3  VIOLATION OF WATER LAW.
4
5  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
6SECTION 1.     Section 72-2-18 NMSA 1978 (being Laws 2001,
7  Chapter 143, Section 1, as amended) is amended to read:
8"72-2-18.     STATE ENGINEER--ENFORCEMENT--COMPLIANCE
9  ORDERS--PENALTY.--
10A.   When a person, pursuant to a finding of fact,
11 violates a requirement or prohibition of Chapter 72 NMSA
12 1978, a regulation, code, order or special order adopted by
13 the state engineer pursuant to Section 72-2-8 NMSA 1978, a
14 condition of a permit or license issued by the state engineer
15 pursuant to law or an order entered by a court adjudicating a
16 water right, the state engineer may, in addition to any other
17 remedies available under law, issue a compliance order
18 stating with reasonable specificity the nature of the
19 violation and requiring compliance within a specified time
20 period.   A compliance order shall not be effective against a
21 party other than the person against whom the compliance order
22 is issued.
23B.   This section shall not be construed to affect
24 or interfere with any jurisdiction of an irrigation district,
25 a conservancy district, a state court, a federal court or an      HB 111
                                                                   Page 1
1  Indian nation, tribe or pueblo to enforce its orders and
2  decrees pertaining to water rights.
3C.   A compliance order may include an order to
4  cease the violation of a requirement or prohibition of
5  Chapter 72 NMSA 1978, a directive issued in accordance with
6  the provisions of Section 72-2-8 NMSA 1978, a condition of a
7  permit or license issued by the state engineer or an order
8  entered by a court adjudicating a water right.
9D.   The state engineer shall provide an opportunity
10 for the person named in the compliance order to have a
11 hearing on the alleged violation pursuant to Section 72-2-16
12 NMSA 1978.    A hearing shall be held if a written request is
13 made to the state engineer within thirty days after receipt
14 of the notice of the compliance order sent by certified mail.
15 If service by certified mail is not possible, the state
16 engineer may serve the compliance order by process server or
17 other effective means.     Notice shall be deemed effective when
18 delivered to the address of record of the person named in the
19 compliance order.     A compliance order issued pursuant to this
20 section shall become final unless the person named in the
21 order submits a written request for a hearing to the state
22 engineer within thirty days of receipt of the order.     A
23 compliance order shall be enforceable only upon becoming
24 final.   Nothing in this section shall prohibit the person
25 named in the order from pursuing an informal resolution of  HB 111
                                                                     Page 2
1  the matter after a timely request for hearing has been made.
2E.   A compliance order may require repayment of
3  water that was overdiverted or illegally diverted.    Repayment
4  of water may be up to double the amount of the overdiversion
5  or illegal diversion.   In determining the repayment of water
6  beyond the amount overdiverted or illegally diverted, the
7  state engineer shall take into consideration the seriousness
8  of the violation, any good faith efforts to comply with the
9  applicable requirements and any other relevant factors.    Any
10 requirement to repay water shall not be enforceable until the
11 compliance order becomes final.   Installation of a measuring
12 device may be required prior to any future diversion of
13 water.   The state engineer shall not pursue a civil penalty
14 pursuant to Subsection G of this section for an overdiversion
15 of a water right.   This subsection shall not be construed to
16 alter or affect any stream adjudication court orders in place
17 prior to the effective date of this 2026 act.
18F.   Any appeal to district court shall be conducted
19 pursuant to Chapter 72, Article 7 NMSA 1978 and shall not
20 stay enforcement of the compliance order unless ordered by
21 the district court.
22G.   Prior to issuing a compliance order, the state
23 engineer shall issue a written notice of violation.    After
24 issuing a written notice of violation, the state engineer may
25 assess a civil penalty of up to three thousand four hundred       HB 111
                                                                   Page 3
1  dollars ($3,400) per day for each day during any portion of
2  which the violation continues.     If the water is sold without
3  a permit to do so, the maximum penalty shall be double the
4  economic benefit to the violator resulting from the violation
5  or twenty-five dollars ($25.00) per barrel of water sold,
6  whichever is greater.    In determining the amount of the civil
7  penalty, the state engineer shall take into consideration the
8  seriousness of the violation, any good faith efforts to
9  comply with the applicable requirements and any other
10 relevant factors.    A compliance order may require payment of
11 the assessed civil penalty accruing from the date of the
12 notice of violation.    The civil penalty shall not be
13 enforceable until the compliance order becomes final.
14H.   If a person does not comply with a compliance
15 order, the state engineer may file a civil action in the
16 county in which the violation occurred to enforce the
17 compliance order and receive any of the remedies provided in
18 this section, including injunctive relief."
19      SECTION 2.     Section 72-5A-12 NMSA 1978 (being Laws 1999,
20 Chapter 285, Section 12) is amended to read:
21      "72-5A-12.     PENALTIES.--
22A.   A person who or governmental entity that is
23 determined to be in violation of the Ground Water Storage and
24 Recovery Act or a permit issued or rules adopted pursuant to
25 the act may be assessed a civil penalty in an amount not  HB 111
                                                                    Page 4
1  exceeding:
2(1)   three thousand four hundred dollars
3  ($3,400) per day of violation not directly related to the
4  illegal recovery or use of stored water; or
5(2)   ten thousand dollars ($10,000) per day
6  of violation directly related to the illegal recovery or use
7  of stored water.
8B.   An action to recover penalties pursuant to this
9  section shall be brought by the state engineer in the
10 district court in which the violation occurred."
11      SECTION 3.     Section 72-12-14 NMSA 1978 (being Laws 1949,
12 Chapter 178, Section 3) is amended to read:
13      "72-12-14.     SUSPENSION OR REVOCATION OF LICENSE--
14 APPEAL--DAMAGES.--Upon notice and after opportunity for a
15 hearing, the state engineer may suspend or revoke a license
16 issued pursuant to the provisions of Sections 72-12-12 through
17 72-12-17 NMSA 1978 for a violation of a condition of a bond
18 maintained as a prerequisite for the license.     Appeals from
19 the decision of the state engineer may be taken to a district
20 court in the same manner as provided for other appeals from
21 action of the state engineer.     In the event of such breach,
22 the state engineer, on behalf of the state and any other
23 person injured by the breach, is authorized to recover in a
24 civil suit in the district court of the county where the well
25 involved is located, judgment for damages sustained by reason       HB 111
                                                                     Page 5
1  of the breach.   In addition, the state engineer is authorized
2  to recover on behalf of the state a civil penalty in an amount
3  to be determined by the district court not to exceed ten
4  thousand dollars ($10,000), and judgment for both damages and
5  penalty shall be against the principal and sureties on the
6  bonds."  HB 111
                                                                  Page 6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25