§ 17-4-35 — Aquatic invasive species control

A. Based on a determination of credible scientific evidence, the director, after consulting with the secretary of energy, minerals and natural resources and with the concurrence of the director of the New Mexico department of agriculture, is authorized to designate: (1) species of exotic or nonnative animals or plants as aquatic invasive species; (2) water bodies within the state as infested waters; and (3) specific requirements to decontaminate conveyances and equipment. B. Prior to entering a conveyance or equipment into any water body in the state, the owner or person in control of a warning-tagged conveyance or warning-tagged equipment or a conveyance or equipment that has been in an infested water body in New Mexico or elsewhere shall: (1) have the conveyance or equipment decontaminated by a person or entity approved by the director to effect decontamination, and only the person legally effecting the decontamination is authorized to remove a warning tag and provide certification that the conveyance or equipment is free from infestation; or (2) have the conveyance or equipment inspected and certified as free from infestation by trained personnel prior to entering a water body or if certification or other documentation of decontamination is not available, otherwise demonstrate compliance with the decontamination requirements established by the director. C. A law enforcement officer may impound a conveyance or equipment if the person transporting the conveyance or equipment refuses to submit to an inspection authorized by this section and the officer has reason to believe that an aquatic invasive species may be present, or if the conveyance or equipment has a warning tag affixed and the operator of the conveyance is attempting to enter a state water body and cannot provide evidence that the conveyance or equipment has been decontaminated. A law enforcement officer shall take action to prevent equipment or conveyances believed or known to contain an aquatic invasive species and warning-tagged equipment or conveyances from entering a state water body. D. The impoundment of a conveyance or equipment may continue for a reasonable period necessary to inspect and decontaminate the conveyance or equipment. E. Notwithstanding any provision to the contrary, no motor vehicle that is drawing a conveyance shall be impounded pursuant to this section. F. Trained personnel may: (1) establish, operate and maintain aquatic invasive species check stations and conduct inspections at or adjacent to the entrance to any state-controlled water body or, pursuant to a cooperative agreement, at or adjacent to any county, municipal or federally or privately controlled water body or at or adjacent to the exit point of an infested water body or at a location agreed to by the owner of the conveyance or equipment in order to inspect conveyances and equipment prior to a conveyance or equipment entering, being launched onto or being directly exposed to water bodies of the state or upon the conveyance's or equipment's departure from infested waters; (2) affix a warning tag to equipment or a conveyance where the presence of an aquatic invasive species has been found; (3) affix a warning tag to a conveyance or equipment upon the conveyance or equipment leaving an infested water; or (4) affix a warning tag to a conveyance or equipment that the trained personnel have reason to believe is infested with an aquatic invasive species based on its point of origin or use. G. Except for state, local, tribal or federal agencies and their respective agents, employees and contractors while performing their duties or contractual obligations specific to management or control of an aquatic invasive species, it is unlawful for a person to: (1) knowingly possess, import, export, ship or transport an aquatic invasive species into, within or from the state; (2) knowingly release, place, plant or cause to be released, placed or planted an aquatic invasive species into a water body or adjacent to a water body where it reasonably might be anticipated to be introduced into a water body that is not infested; (3) remove a warning tag other than as provided pursuant to this section; (4) introduce any tagged conveyance or equipment or any equipment or conveyance from which a warning tag has been unlawfully removed into a water body without first having that conveyance or equipment decontaminated and certified pursuant to the provisions of this section; or (5) knowingly introduce into any water body a conveyance or equipment that has been exposed to an infested water body or a water body in any other state known to contain aquatic invasive species without first being decontaminated and certified pursuant to the provisions of this section. H. Knowingly or willfully violating any provision of this section as a first offense is a petty misdemeanor. A second or subsequent violation of any provision of this section is a misdemeanor. Any violation is punishable pursuant to Section 31-19-1 NMSA 1978. I. The director or the director's designee shall coordinate the monitoring of the water bodies of the state for the presence of aquatic invasive species, including privately controlled waters if the director has authorized access to them or has received permission to monitor them from the persons controlling access to such waters. J. Upon determination of an infested water body in New Mexico, the director shall immediately recommend to the person in control of the infested water body actions to limit access or take other actions to prevent the potential spread of an aquatic invasive species to other water bodies. K. The commission is authorized to adopt rules pursuant to Section 17-1-26 NMSA 1978, and the secretary of energy, minerals and natural resources is authorized to adopt rules pursuant to Section 16-2-32 NMSA 1978 as necessary to implement and enforce the provisions of this section. L. The director may enter into cooperative agreements with any federal, state, county or municipal authority or private entity that may be in control of a water body potentially affected by aquatic invasive species. M. As used in this section: (1) "aquatic invasive species" means quagga mussels and zebra mussels and other exotic or nonnative aquatic animals, including invertebrates but excluding those species listed as protected in Chapter 17 NMSA 1978, or any plant or animal species whose introduction into an aquatic ecosystem is determined by the director, after consulting with the secretary of energy, minerals and natural resources and with the concurrence of the director of the New Mexico department of agriculture, to cause or be likely to cause harm to the economy, environment or human health or safety; (2) "commission" means the state game commission; (3) "conveyance" means a motor vehicle, vessel, trailer or any associated equipment or containers, including, but not limited to, live wells, fish-hauling tanks, ballast tanks, motorized skis and bilge areas that may contain or carry an aquatic invasive species or any other equipment by which aquatic invasive species may be introduced into an aquatic ecosystem; (4) "decontaminate" means to wash, drain, dry or otherwise treat a conveyance in accordance with guidelines established by the director in order to remove or destroy an aquatic invasive species; (5) "director" means the director of the department of game and fish; (6) "equipment" means an article, a tool, an implement, a device or a piece of clothing, including boots and waders, that is capable of containing or transporting water; (7) "infested water" means a geographic region, water body or water supply system or facility within the state that the director, after consulting with the secretary of energy, minerals and natural resources and with the concurrence of the director of the New Mexico department of agriculture, identifies as carrying or containing an aquatic invasive species or a water body outside the state that has been identified as carrying or containing an aquatic invasive species; (8) "inspect" means to examine a conveyance or equipment to determine whether an aquatic invasive species is present; (9) "law enforcement officer" means a state or federal certified law enforcement officer; (10) "trained personnel" means individuals who have successfully completed the United States fish and wildlife service's aquatic invasive species watercraft inspection and decontamination training, level I or level II, or an equivalent training recognized by the director; (11) "warning tag" means a tag that is affixed to equipment or a conveyance upon the equipment or conveyance leaving an infested water or upon an inspection determining that the equipment or conveyance contains an aquatic invasive species that requires the equipment or conveyance to be decontaminated; and (12) "water body" means a natural or impounded surface water, including a stream, river, spring, lake, reservoir, pond, wetland, tank or fountain.

Legislative History

Laws 2009, ch. 38, § 1; 2010, ch. 89, § 1.