New Mexico State Determination of Right of Way Width Process (8-NM-d)
State Determination of Right of Way Width Process Process
8-NM-d.1 to 8-NM-d.3– Does the Proposed Transmission Line Require a ROW Width of 100 feet or Greater?
Developers seeking to construct transmission lines requiring a ROW width greater than 100 feet must file an application with the NMPRC. NM Stat. 62-9-3.2(A). Developers seeking to site transmission lines requiring a ROW width less than 100 feet, while exempt from the Determination of Right of Way requirement, must still comply with local government planning and zoning regulations.
8-NM-d.4 to 8-NM-d.6 – Does the NMPRC Order a Pre-Hearing Conference?
The NMPRC may, with reasonable notice, require that the developer and NMPRC staff attend one or more pre-hearing conferences for the purpose of formulating and simplifying the issues in the proceeding, or addressing other matters that may expedite orderly conduct and disposition of the proceeding. 1 NMAC 2.2.26. Such matters may include, but are not limited to:
- Details of the procedural schedule;
- The necessity or desirability of amendments to the pleadings;
- The possibility of obtaining admissions of fact and documents that will avoid unnecessary proof;
- Limitations on the number of witnesses or time allocated to particular witnesses or issues at public hearing;
- Procedures at public hearing;
- The distribution of written testimony and exhibits to staff and the parties prior to the public hearing;
- The consideration of any outstanding motions; or
- The status of any settlement negotiations.
8-NM-d.7 to 8-NM-d.8 – Provide Notice of Public Hearing
The NMPRC must provide notice of the time and place of the hearing to the utility and the developer at least 20 day prior to the proceeding. In addition the developer must give notice, within 20 days of the hearing, to all owners of property proposed to be taken and, if applicable, to the person in actual occupancy of such property. NM Stat. 62-9-3.2(D).
8-NM-a.9 – Hold Public Hearing and Review Application
The NMPRC reviews the application at a public hearing. The parties to the hearing may be heard, by themselves or through counsel. All parties may also compel the attendance of, and cross examine, witnesses, and introduce evidence. NM Stat. 62-10-5 and 1 NMAC 2.2.32(A)(1). The public will be permitted to comment, but will not be able otherwise participate in the hearing. NM Stat. 62-10-5 and 1 NMAC 2.2.32(A)(1) and (2).
8-NM-d.10 to 8-NM-d.11 – Does the NMPRC Review the Application Within the Required Time Period?
The NMPRC must issue its order granting or denying the application within six months of its filing. If the NMPRC fails to issue an order approving or denying the application within the required time frame, the application is deemed approved and the Determination of Right of Way Width will be granted. NM Stat 62-9-3.2(F).
8-NM-d.12 - Does the NMPRC Approve the Application?
If the NMPRC approves the application, the Determination for Right of Way Width will be granted.
8-NM-d.13 to 8-NM-d.15 – Does the Developer Seek Review of the NMPRC Decision?
If the NMPRC denies the application, the developer may file a notice of appeal in the New Mexico Supreme Court. The developer must file the notice of appeal within 30 days after the entry of the final order of the NMPRC. The notice of appeal must name the NMPRC as the appellee and must identify the order from which the appeal is taken. NM Stat. 62-11-1. After the developer files the appeal, it must serve the appeal on the NMPRC and all other parties of record. NM Stat. 62-11-2.
8-NM-d.16 – Certify Record of Agency Proceeding
The NMPRC must certify to the Supreme Court the record of the testimony taken before the NMPRC at the application hearing. Included with the record must be all exhibits offered or received at the hearing before the NMPRC, and all pleadings, findings, conclusions, orders and opinions made at or in connection with the hearing. NM Stat. 62-11-2.
8-NM-d.17 to 8-NM-d.19 – Review NMPRC Order
The Supreme Court will annul or vacate the NMPRC order if it is made to appear, to the satisfaction of the Court, that the order is unreasonable or unlawful. NM Stat. 62-11-5. The developer has the burden of proof to show that the NMPRC order is unreasonable or unlawful. NM Stat. 62-11-4. If the Supreme Court rules in favor of the developer, the NMPRC will grant the Determination of Right of Way. If the Supreme Court affirms the NMPRC order, the project cannot continue.
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