N.M. Admin. Code § 19.25.2.7

Current through Register Vol. 35, No. 21, November 5, 2024

Section 19.25.2.7 - DEFINITIONS

Unless otherwise defined below, terms used in this rule have the same meaning as set forth in NMSA 1978, Chapter 72. The use of a masculine pronoun to refer to individuals is for grammatical convenience and is intended to be gender neutral.

A. "Administrative litigation unit" or "ALU" means that division of the OSE designated to provide legal counsel to and legal representation of the water rights division ("WRD") in administrative hearings and to represent the state engineer in judicial proceedings.

B. "Aggrieved applicant" means an applicant whose unprotested application has been acted on by the WRD without hearing, and who disagrees with the action or decision and files a timely request for a hearing on the merits of the application.

C. "Applicant" means a person who has filed an application involving the beneficial use of water with the OSE.

D. "Alternative dispute resolution ("ADR") officer" means that person appointed or designated by the state engineer to facilitate settlement or alternative resolutions of disputed matters pending before the hearing unit.

E. "Compliance order" means a written administrative directive issued on the authority of the state engineer pursuant to NMSA 1978, Section 72-2-18 that states the specific nature of an alleged violation of a state engineer-issued permit, license or order, or any statute, regulation, or court order subject to administration by the state engineer; and that requires compliance by the respondent within a specified time period.

F. "Docket" means the hearings unit's record containing the date of entry of a case, its numerical designation, and the calendar of those cases awaiting action through the hearing process.

G. "Ex parte communication" means a communication regarding substantive issues between a party to a matter pending before the hearings unit and the hearing examiner or state engineer, without all other parties being present or having received prior notice of such communication.

H. "Hearing" means a formal proceeding or hearing before the state engineer or his hearing examiner. This rule governs the following three types of hearings:

(1) "compliance hearing" that provides a person named in a compliance order an opportunity to respond to or contest the alleged violation of law or order;

(2) "aggrieved application hearing" that provides an aggrieved applicant an opportunity to be heard on the merits of the application; or

(3) "protested application hearing" that provides an applicant whose application has been protested and any protestant an opportunity to be heard on the merits of the application, including whether it will be detrimental to the objector's water right or otherwise result in impairment to existing water rights, be contrary to the conservation of water within the state, or detrimental to the public welfare of the state.

I. "Hearing examiner" means that person appointed or designated by the state engineer to conduct hearings with respect to matters properly before the state engineer. Hearing examiners report directly to the state engineer and are assigned to the hearings unit. For purposes of this rule, references to a hearing examiner shall apply to the state engineer when he presides at hearing.

J. "Hearings unit" means the division of the OSE comprising the hearing examiners, alternative dispute resolution officers and the hearings unit administrator.

K. "Hearings unit administrator" means that person designated by the state engineer to direct, provide and perform administrative duties in support of the hearing process and serve as the official custodian of the hearings unit files and official record of proceedings.

L. "Party" means an applicant, respondent, or protestant who has paid any required hearing fees and appears and participates in a hearing. The WRD shall be a party to every proceeding. A party other than an individual must be represented by an attorney licensed in the state of New Mexico.

M. "Person" means an individual, firm, corporation, or other entity, or a political subdivision of the state or its agencies, instrumentalities and institutions.

N. "Pro se party" means an individual who appears on his or her own behalf and participates in a hearing without legal representation by an attorney.

O. "Protestant" means a person who files a timely written protest to an application in the form and manner required by the WRD.

P. "Respondent" means a person named in a compliance order.

Q. "Water rights division" or "WRD" means the OSE division designated by the state engineer to process applications and administer water rights pursuant to the permits and licenses issued by and declarations filed with the state engineer and water rights as adjudicated by decree pursuant to NMSA 1978, Section 72-4-19.

N.M. Admin. Code § 19.25.2.7

19.25.2.7 NMAC - Rp, 19 NMAC 25.2.7, 8-30-2013