Office of State Engineer Considering Changes to Its Water Hearing Regulations

Author: Christina Sheehan

    The State Engineer conducts a variety of administrative hearings as authorized by NMSA 72-2-16 and 72-2-18.  The hearings subject to these statutes include water rights protests, aggrieved water rights applications and compliance orders.  Hearings before the State Engineer's Hearing Office have been conducted in accordance with two New Mexico regulations, NMAC 19.25.2 and NMAC 19.25.4.

    On October 15, 2012 the New Mexico Office of the State Engineer submitted Findings and Conclusions of the State Engineer on and Notice of Proposed Rulemaking.  The proposed order, included in the notice of proposed rulemaking, seeks to change the administrative procedures currently used by hearing examiners, alternative dispute resolution officers and the Hearings Unit administrator.  The October 15, 2012 proposed order seeks to repeal and replace NMAC 19.25.2 and NMAC 19.25.4, the current administrate provisions, with new regulations contained in "replacement Rule 19.25.2 NMAC".

    The replacement Rule 19.25.2 differs significantly from the regulations it seeks to repeal and replace.  For example, the proposed rule sets forth specific steps for requesting a hearing, and these steps are more specific than any procedure that is currently provided for in NMAC 19.25.2.9.  The proposed section also includes provisions for timeliness and substance of protests and standing requirements.  Additionally, the proposed rule sets forth docketing procedures that are not a part of the current administrative rules.  The proposed rule includes a new section on representation of parties, providing circumstances under which a party must be represented by legal counsel or may appear pro se.  The proposed rule also sets forth a new provision regarding the hearing units' filing requirements.  These requirements outline procedures for filing, service, amendment and withdrawal of documents, among other procedural provisions.  The proposed rule also includes specific provisions regarding how a hearing officer is to conduct hearings, which are not currently included in NMAC 19.25.2 or NMAC 19.25.4.  The new provisions noted above are just some examples of how the proposed rule changes the current structuring of State Engineer hearings.  The proposed rule includes more changes that are not mentioned in this alert.

    A public hearing on the proposed regulation, replacement Rule 19.25.2 NMAC, will be held in Santa Fe, New Mexico on December 18, 2012 beginning at 9:00 a.m.  For more information, contact Christina Sheehan.