Summary:

 Senate Bill 210 (SB 210) increases the maximum penalty for a violation of water law and provides for an annual increase in penalties for a violation of water law to account for inflation.
 

Legislation Overview:

 Senate Bill 210 (SB 210) amends Section 72-2-18 NMSA 1978 (Enforcement-Compliance Orders) by stating that the preferred remedy for violations under Chapter 72 NMSA 1978 is repayment of the water. SB 210 limits the state engineer (OSE)’s pursuit of penalties to those that do not involve overdiversion of water or where repayment of water is not possible or is insufficient to deter future violations. 
SB 210 requires the state engineer to issue a written notice of violation before issuing a compliance order. It increases the maximum penalty for a violation of water law to two thousand dollars ($2,000) per day or any portion of a day in which the violation continues. If the overdiverted or illegally diverted water is sold, the penalty will be doubled the economic benefit to the violator resulting from the violation. It allows the OSE discretion in setting the amount of the penalty and specifies what factors the OSE should consider. The civil penalty is not enforceable until the compliance order becomes final.
SB 210 increases the penalty for per day violation of the Ground Water Storage and Recovery Act (Section 72-5A-12 NMSA 1978) to two thousand dollars ($2,000) per day. 
SB 210 requires the OSE to give notice and an opportunity for a hearing before suspension or revocation of a license for certain bond violations and makes technical changes in Section 72-12-14 NMSA 1978. It increases the penalty a district court may impose up to ten thousand dollars ($10,000) which the OSE recovers on the part of the state.
For each of these sections, SB 210 provides for an annual increase in penalties for a violation of water law to account for inflation beginning on 1 July 2027 and every 1 July thereafter with a limit on the increase to 150 percent of the current penalty amount. It directs the OSE to post the maximum penalty for that Fiscal Year (FY).





 

Current Law:

 Penalties under Section 72-2-18 NMSA 1978 and Section 72-5A-12 NMSA 1978  are one hundred dollars ($100) per day; and under Section 72-12-14 NMSA 1978, one thousand dollars ($1,000) per day. There is no provision to increase fees because of inflation. The amount of the current penalty has not increased since 1907 according to OSE analysis and is not an effective deterrent.  As water is becoming scarcer, the OSE is receiving increasing numbers of reports of illegal water use and well drilling, particularly to support industries like cannabis and oil and gas. The OSE believes it is imperative that the agency has effective enforcement tools to deter water theft, illegal water use and illegal well drilling.
 

Amendments:

 2/13/25
The Senate Conservation Committee amended SB 210 (SB 210A SCONC) by adding to the maximum penalty for overdiversion or illegal diversion of water. A person overdiverting or creating an illegal diversion of water will be subject to a civil penalty of twice the sale price of the water or twenty-five dollars per barrel whichever is more.