WATER LAW VIOLATION MAXIMUM PENALTY

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