0001|                           SENATE BILL 1236
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0002|     43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003|                            INTRODUCED BY
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0004|                          MICHAEL S. SANCHEZ
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0005|     
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0006|                                   
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0007|     
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0008|                                   
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0009|     
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0010|                                AN ACT
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0011|     RELATING TO WATER; ENACTING THE GROUND WATER STORAGE AND
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0012|     RECOVERY ACT; PROVIDING PENALTIES; ENACTING NEW SECTIONS OF THE
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0013|     NMSA 1978.
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0014|     
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0015|     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016|          Section 1.  A new Section 72-20-1 NMSA 1978 is enacted to
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0017|     read: 
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0018|          "72-20-1.  [<u>NEW MATERIAL</u>]  SHORT TITLE.--Chapter 72,
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0019|     Article 20 NMSA 1978 may be cited as the "Ground Water Storage
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0020|     and Recovery Act"." 
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0021|          Section 2.  A new Section 72-20-2 NMSA 1978 is enacted to
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0022|     read:   
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0023|          "72-20-2.  [<u>NEW MATERIAL</u>]  LEGISLATIVE FINDINGS.--The
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0024|     legislature finds that:  
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0025|               A.  the state has long recognized that the
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0001|     conjunctive use and administration of surface and ground waters
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0002|     are essential to the effective and efficient use of the state's
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0003|     limited water supplies; and 
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0004|               B.  ground-water recharge, storage and recovery: 
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0005|                    (1)  offer potential savings in capital
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0006|     investment, operation and maintenance costs, flood control and
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0007|     water quality protection or enhancement costs, as well as the
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0008|     potential for maintaining or improving environmental quality; 
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0009|                    (2)  reduce the rate at which ground-water
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0010|     levels will decline and may prevent overstressing or dewatering
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0011|     aquifer systems; 
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0012|                    (3)  promote conservation of water within the
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0013|     state; 
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0014|                    (4)  serve the public welfare of the state; and 
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0015|                    (5)  may lead to more effective use of the
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0016|     state's water resources."
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0017|          Section 3.  A new Section 72-20-3 NMSA 1978 is enacted to
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0018|     read:   
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0019|          "72-20-3.  [<u>NEW MATERIAL</u>]  DEFINITIONS.--As used in the
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0020|     Ground Water Storage and Recovery Act:
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0021|               A.  "aquifer" means a geologic formation that
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0022|     contains sufficient saturated material to be capable of storing
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0023|     and transmitting water in usable quantities to a well and as
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0024|     such is a "storage reservoir" within the meaning of Section
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0025|     72-5-28 NMSA 1978;   
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0001|               B.  "area of hydrologic effect" means the
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0002|     underground area where the water is stored and is located,
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0003|     adjacent underground areas in which water rights exist that may
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0004|     be impaired, the land surface projected above the underground
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0005|     areas and any additional land surface used for seepage or
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0006|     infiltration;
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0007|               C.  "permit" means a recharge and recovery permit
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0008|     granted pursuant to the Ground Water Storage and Recovery Act;
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0009|               D.  "permittee" means a person to whom a recharge
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0010|     and recovery permit has been granted pursuant to the Ground
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0011|     Water Storage and Recovery Act;
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0012|               E.  "person" means an individual or any legal
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0013|     entity, the state or any of its branches, agencies,
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0014|     departments, boards, instrumentalities or institutions, or any
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0015|     political subdivision of the state and its agencies,
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0016|     instrumentalities or institutions;
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0017|               F.  "project" means an engineered facility designed,
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0018|     constructed and operated to add water by injection or
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0019|     infiltration to an aquifer or system of aquifers, to store the
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0020|     water underground and to recover the water pursuant to a permit
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0021|     issued pursuant to the Ground Water Storage and Recovery Act;
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0022|     and
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0023|               G.  "stored water" means water that has been stored
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0024|     underground for the purpose of recovery pursuant to a permit
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0025|     issued pursuant to the Ground Water Storage and Recovery Act." 
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0001|          Section 4.  A new Section 72-20-4 NMSA 1978 is enacted to
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0002|     read:  
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0003|          "72-20-4.  [<u>NEW MATERIAL</u>]  PERMIT REQUIRED FOR PROJECT.-
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0004|     -Any person desiring to operate a project shall apply for and
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0005|     may receive a permit to operate the project from the state
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0006|     engineer." 
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0007|          Section 5.  A new Section 72-20-5 NMSA 1978 is enacted to
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0008|     read:  
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0009|          "72-20-5.  [<u>NEW MATERIAL</u>]  APPLICATION FOR PROJECT
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0010|     PERMIT--FILING FEE--REQUIRED INFORMATION.--The state engineer
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0011|     shall prescribe and furnish application forms for a project
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0012|     permit.  The application to operate a project shall include the
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0013|     following: 
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0014|               A.  an application fee in the amount of two hundred
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0015|     fifty dollars ($250); 
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0016|               B.  the name and mailing address of the applicant; 
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0017|               C.  the name and mailing address of the owner of the
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0018|     land on which the applicant proposes to operate the project; 
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0019|               D.  the name of the declared underground water basin
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0020|     in which the applicant proposes to operate the project; 
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0021|               E.  the legal description of the location of the
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0022|     proposed project; 
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0023|               F.  evidence of financial and technical capability; 
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0024|               G.  the source, annual quantity and quality of water
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0025|     proposed to be injected and the quality of water in the
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0001|     receiving aquifer; 
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0002|               H.  the legal basis for acquiring and using the
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0003|     water proposed to be injected; 
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0004|               I.  the identification, characteristics, capacity
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0005|     and location of each recharge and recovery well;
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0006|               J.  a description of the proposed project, including
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0007|     its capacity, plan of operation and percentage of anticipated
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0008|     recoverable water; 
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0009|               J.  a study:
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0010|                    (1)  showing the area of hydrologic effect of
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0011|     the project; 
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0012|                    (2)  demonstrating that the project is
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0013|     hydrologically feasible; 
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0014|                    (3)  demonstrating that the project will not
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0015|     impair existing water rights within the area of hydrologic
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0016|     effect; 
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0017|                    (4)  demonstrating that the project will not be
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0018|     contrary to the conservation of water within the state; and 
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0019|                    (5)  demonstrating that the project will not be
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0020|     detrimental to the public welfare of the state; 
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0021|               K.  the proposed duration of the permit; and 
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0022|               L.  any further information required by the state
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0023|     engineer." 
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0024|          Section 6.  A new Section 72-20-6 NMSA 1978 is enacted to
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0025|     read:  
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0001|          "72-20-6.  [<u>NEW MATERIAL</u>]  REVIEW OF APPLICATION FOR
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0002|     PERMIT--NOTICE--PROTESTS--HEARINGS--DETERMINATIONS--JUDICIAL
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0003|     REVIEW.--
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0004|               A.  Upon receipt of an application for a permit to
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0005|     operate a project, the state engineer shall endorse on the
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0006|     application the date it was received and shall keep a record of
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0007|     the application.  The state engineer shall conduct an initial
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0008|     review of the application within sixty days of receipt.  If the
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0009|     state engineer determines in the initial review that the
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0010|     application is incomplete, the state engineer shall notify the
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0011|     applicant of the application's deficiencies.  The application
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0012|     shall remain incomplete until the applicant provides all
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0013|     information required by Section 72-20-5 NMSA 1978.  The state
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0014|     engineer may request additional information from the applicant
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0015|     and may conduct an independent investigation of the project as
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0016|     is necessary for the state engineer to determine whether to
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0017|     approve the application. 
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0018|               B.  Within thirty days after determining that an
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0019|     application is complete, or longer if requested by the
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0020|     applicant, the state engineer shall cause notice of the
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0021|     application to be given in a newspaper of general circulation
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0022|     in the county in which persons reside who could reasonably be
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0023|     expected to be affected by the project, as determined by the
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0024|     state engineer.  The notice shall be given once a week for
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0025|     three consecutive weeks and shall set forth: 
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0001|                    (1)  the legal description of the location of
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0002|     the proposed project; 
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0003|                    (2)  a brief description of the proposed
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0004|     project, including its capacity; 
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0005|                    (3)  the name of the applicant; 
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0006|                    (4)  the date of the last publication; and 
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0007|                    (5)  the requirements for a protest to be
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0008|     deemed validly filed and asserted, as set forth in Subsection C
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0009|     of this section. 
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0010|               C.  To be validly filed and asserted, a protest to a
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0011|     proposed project shall: 
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0012|                    (1)  be filed by any person directly or
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0013|     substantively and specifically affected by the granting of the
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0014|     application for the proposed project and based upon the failure
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0015|     of the project to comply with the required determinations of
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0016|     the state engineer as set forth in Subsection A of Section 72-
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0017|     20-7 NMSA 1978; 
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0018|                    (2)  be in writing, contain the name and
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0019|     mailing address of the protestor, identify as grounds for the
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0020|     protest the requirements of Section 72-20-7 NMSA 1978 that the
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0021|     protestor asserts are not complied with by the project and
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0022|     contain the signature of the protestor or the legal
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0023|     representative of the protestor; and
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0024|                    (3)  be filed with the state engineer within
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0025|     ten days after the last publication date of the notice of the
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0001|     application.
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0002|               D.  Upon receipt of a validly asserted and filed
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0003|     protest, the state engineer shall advise the applicant, by
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0004|     certified mail, that a protest has been filed. 
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0005|               E.  Upon receipt of a validly asserted and filed
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0006|     protest, or upon his own motion for good cause, the state
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0007|     engineer may schedule a hearing on the application, providing
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0008|     no less than thirty days prior notice of the hearing, by
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0009|     certified mail, to the applicant and any protestor.
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0010|               F.  The state engineer shall either approve or deny
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0011|     each application within one year after the final date for
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0012|     filing a protest on the application, unless, in the case of an
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0013|     unprotested application, the state engineer has received a
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0014|     written request from the applicant to postpone a decision on
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0015|     the application; or, in the case of a protested application,
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0016|     the state engineer has received a written request from the
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0017|     applicant and all protestors to postpone the decision.
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0018|               G.  Any person aggrieved by any decision of the
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0019|     state engineer made pursuant to Subsection F of this section
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0020|     may appeal that decision to the district court pursuant to
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0021|     Section 72-7-1 NMSA 1978."
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0022|          Section 7.  A new Section 72-20-7 NMSA 1978 is enacted to
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0023|     read:  
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0024|          "72-20-7.  [<u>NEW MATERIAL</u>]  PERMIT ISSUANCE--CONTENTS OF
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0025|     PERMIT--MONITORING REQUIREMENTS.--
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0001|               A.  The state engineer shall, upon application,
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0002|     issue a permit to operate a project if the state engineer
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0003|     determines that: 
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0004|                    (1)  the applicant has the technical and
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0005|     financial capability to construct and operate the project; 
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0006|                    (2)  the applicant has: 
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0007|                         (a)  a valid water right for the use of
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0008|     the water proposed to be stored underground; or 
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0009|                         (b)  an agreement to use the water
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0010|     proposed to be stored underground with an owner who has a valid
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0011|     water right for the use of the water, provided that any
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0012|     determination made by the state engineer for purposes of this
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0013|     subparagraph is not binding upon the state engineer or his
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0014|     office in any other proceeding; 
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0015|                    (3)  the project is hydrologically feasible; 
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0016|                    (4)  the project will not impair existing water
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0017|     rights within the area of hydrologic effect of the project; 
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0018|                    (5)  the project will not be contrary to the
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0019|     conservation of water within the state; and 
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0020|                    (6)  the project will not be detrimental to the
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0021|     public welfare of the state.
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0022|               B.  A permit for a project shall include: 
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0023|                    (1)  the name and mailing address of the person
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0024|     to whom the permit is issued; 
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0025|                    (2)  the name of the declared underground water
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0001|     basin in which the project will be located; 
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0002|                    (3)  the capacity and plan of operation of the
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0003|     project; 
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0004|                    (4)  any monitoring program required pursuant
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0005|     to Subsection C of this section; 
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0006|                    (5)  any conditions that are imposed by or
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0007|     regulations adopted pursuant to the Ground Water Storage and
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0008|     Recovery Act; and 
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0009|                    (6)  other information that the state engineer
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0010|     determines is necessary. 
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0011|               C.  The state engineer shall require the permittee
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0012|     to monitor the operation of the project and its effect on other
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0013|     water users in the area of hydrologic effect.  In determining
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0014|     monitoring requirements, the state engineer shall cooperate
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0015|     with all government entities that regulate and monitor the
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0016|     quality of water, including the department of environment. 
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0017|     Nothing in this article limits or precludes the application or
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0018|     operation of other statutes to a project." 
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0019|          Section 8.  A new Section 72-20-8 NMSA 1978 is enacted to
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0020|     read:  
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0021|          "72-20-8.  [<u>NEW MATERIAL</u>]  MODIFICATION AND ASSIGNMENT
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0022|     OF PROJECT PERMIT.-- 
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0023|               A.  The state engineer, on his own initiative or at
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0024|     the request of any permittee, may modify the conditions of a
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0025|     permit if he finds that modifications are necessary and will
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0001|     not impair existing water rights or the water quality of the
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0002|     aquifer.  
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0003|               B.  Before any permit condition is modified, the
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0004|     state engineer may require that notice be given to potentially
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0005|     impaired water users if he finds that the proposed modification
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0006|     may impair existing water rights. 
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0007|               C.  The permittee may apply to the state engineer
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0008|     for approval to assign a permit to another person.  The state
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0009|     engineer shall approve the assignment if the person to whom the
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0010|     permit is to be assigned will meet the requirements of
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0011|     Paragraphs (1) and (2) of Subsection A of Section 72-20-7 NMSA
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0012|     1978 when the assignment is completed."
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0013|          Section 9.  A new Section 72-20-9 NMSA 1978 is enacted to
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0014|     read:  
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0015|          "72-20-9.  [<u>NEW MATERIAL</u>]  PERMIT FOR RECOVERY WELL--
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0016|     RECOVERY LIMITED TO DESIGNATED WELLS--DESIGNATION OF PERSON
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0017|     ENTITLED TO RECOVER WATER--USE OR EXCHANGE OF RECOVERED WATER.-
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0018|     -
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0019|               A.  A permittee shall comply with the requirements
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0020|     of the Ground Water Storage and Recovery Act and Sections 72-
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0021|     12-1 through 72-12-28 NMSA 1978 to acquire a permit for a
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0022|     recovery well.
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0023|               B.  A permittee may recover stored water pursuant to
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0024|     a recovery well permit only from wells located within the area
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0025|     of hydrologic effect of the project and approved for such
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0001|     purpose by the state engineer. 
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0002|               C.  A person entitled to recover stored water shall
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0003|     be designated by the permittee and approved for such purpose by
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0004|     the state engineer. 
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0005|               D.  A permittee may use or exchange water recovered
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0006|     only for the same purposes as the water was used before it was
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0007|     stored, unless a change or exchange application is filed and
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0008|     approved pursuant to Sections 72-5-23, 72-5-24 or 72-12-7 NMSA
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0009|     1978, as applicable."
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0010|          Section 10.  A new Section 72-20-10 NMSA 1978 is enacted
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0011|     to read:  
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0012|          "72-20-10.  [<u>NEW MATERIAL</u>]  STORAGE ACCOUNT TO BE 
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0013|     ESTABLISHED--LIMIT ON AMOUNT OF WATER RECOVERED.--
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0014|               A.  The state engineer shall establish a storage
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0015|     account for each permitted project.  If the permitted project
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0016|     has stored water from more than one source, he shall establish
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0017|     subaccounts for each source of water. 
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0018|               B.  A permittee may recover only the recoverable
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0019|     amount of stored water from a well.  For purposes of this
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0020|     section, "recoverable amount" means that amount of water, as
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0021|     determined by the state engineer, that has reached the aquifer,
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0022|     remained within the area of hydrologic effect and is conducive
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0023|     to recovery."
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0024|          Section 11.  A new Section 72-20-11 NMSA 1978 is enacted
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0025|     to read:  
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0001|          "72-20-11.  [<u>NEW MATERIAL</u>]  ANNUAL REPORT TO STATE
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0002|     ENGINEER--PENALTY FOR FAILURE TO FILE.--
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0003|               A.  Each permittee shall file a report with the
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0004|     state engineer to annually account for: 
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0005|                    (1)  the total quantity of stored water and
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0006|     recovered water; 
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0007|                    (2)  the water quality of the stored water, the
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0008|     receiving aquifer and the recovered water; and include
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0009|                    (3)  a sworn statement or certification, given
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0010|     under penalty of perjury, attesting to the truthfulness and
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0011|     accuracy of the report's data.
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0012|               B.  The annual report shall be maintained on a
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0013|     calendar-year basis and shall be filed with the state engineer
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0014|     no later than March 31 for the preceding year.  If a person
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0015|     required to file an annual report fails to do so when due, the
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0016|     state engineer may assess and impose a penalty of five hundred
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0017|     dollars ($500) for each month or portion of a month that the
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0018|     report is not filed.  The total penalty assessed under this
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0019|     subsection shall not exceed five thousand dollars ($5,000). 
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0020|               C.  All records and reports required to be
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0021|     maintained and filed pursuant to this section shall be in a
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0022|     form prescribed by the state engineer." 
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0023|          Section 12.  A new Section 72-20-12 NMSA 1978 is enacted
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0024|     to read: 
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0025|          "72-20-12.  [<u>NEW MATERIAL</u>]  REVOCATION OR SUSPENSION OF
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0001|     PERMIT--ORDERS TO CEASE AND DESIST--INJUNCTION.--
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0002|               A.  The state engineer may periodically review a
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0003|     project to determine if the permittee is complying with the
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0004|     terms and conditions of the permit.  The state engineer may
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0005|     permanently revoke or temporarily suspend a permit for good
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0006|     cause after an investigation and a hearing.  Notice shall be
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0007|     sent, by certified mail, to the permittee at least thirty days
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0008|     before any hearing on a revocation or suspension disclosing the
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0009|     permittee's alleged failure to comply with the permit's terms
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0010|     and conditions. 
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0011|               B.  Except as otherwise provided in Subsection C of
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0012|     this section, if the state engineer has reason to believe that
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0013|     a person has violated a provision of the Ground Water Storage
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0014|     and Recovery Act or a permit issued or regulation adopted
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0015|     pursuant to that act, the state engineer may issue a written
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0016|     notice that the person appear and show cause, at a hearing
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0017|     before the state engineer not less than fifteen days after the
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0018|     receipt of the notice, why the person should not be ordered to
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0019|     cease and desist from the violation.  The notice shall inform
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0020|     the person of the date, time and place of the hearing and the
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0021|     consequences of the person's failure to appear. 
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0022|               C.  If the state engineer finds that a person is
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0023|     constructing or operating a project in violation of the Ground
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0024|     Water Storage and Recovery Act, the state engineer may issue a
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0025|     temporary order for the person to cease and desist the
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0001|     construction or operation pending final action by the state
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0002|     engineer pursuant to Subsection D of this section.  The order
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0003|     shall include written notice to the person of the date, time
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0004|     and place where the person shall appear at a hearing before the
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0005|     state engineer to show cause why the temporary order should be
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0006|     vacated.  The hearing shall be held not less than fifteen days
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0007|     after the date of the order. 
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0008|               D.  After a hearing pursuant to Subsection B or C of
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0009|     this section, or after the expiration of the time to appear,
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0010|     the state engineer shall issue a decision and order.  The
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0011|     decision and order shall be in a form as the state engineer
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0012|     determines to be reasonable and appropriate and may include a
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0013|     determination of violation, an order to cease and desist, the
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0014|     recommendation of a civil penalty and an order directing that
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0015|     positive steps be taken to abate or ameliorate any harm or
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0016|     damage arising from the violation.  Any person affected may
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0017|     appeal the decision to the district court pursuant to Section
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0018|     72-7-1 NMSA 1978. 
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0019|               E.  If a person continues a violation after the
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0020|     state engineer has issued a decision and order pursuant to
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0021|     Subsection D of this section or a temporary order pursuant to
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0022|     Subsection C of this section, the state engineer may apply for
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0023|     a temporary restraining order or a preliminary or permanent
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0024|     injunction from the district court.  A decision to seek
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0025|     injunctive relief does not preclude other forms of relief or
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0001|     enforcement against a violator." 
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0002|          Section 13.  A new Section 72-20-13 NMSA 1978 is enacted
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0003|     to read:  
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0004|          "72-20-13.  [<u>NEW MATERIAL</u>]  PENALTIES.--
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0005|               A.  A person who is determined pursuant to Section
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0006|     72-20-12 NMSA 1978 to be in violation of the Ground Water
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0007|     Storage and Recovery Act or a permit issued or regulation
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0008|     adopted pursuant to that act may be assessed a civil penalty in
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0009|     an amount not exceeding: 
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0010|                    (1)  one hundred dollars ($100) per day of
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0011|     violation not directly related to illegal recovery or use of
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0012|     stored water; or 
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0013|                    (2)  ten thousand dollars ($10,000) per day of
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0014|     violation directly related to illegal recovery or use of stored
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0015|     water. 
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0016|               B.  An action to recover penalties pursuant to this
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0017|     section shall be brought by the state engineer in the district
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0018|     court in which the violation occurred."
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0019|                              
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