§ 74-6-5 — Permits; certification; appeals to commission

New Mexico § 74-6-5

• Jurisdiction: New Mexico
• Ch. 74: Environmental Improvement
• Art. 6: Water Quality

Text

A. By rule, the commission may require a person to obtain from a constituent agency designated by the commission a permit or general permit coverage for the discharge of a water contaminant or for the disposal or reuse of septage or sludge. B. The commission shall adopt rules establishing procedures for certifying federal water quality permits. C. Prior to the issuance of a permit or approval of general permit coverage, the constituent agency may require the submission of plans, specifications and other relevant information that it deems necessary. D. The commission shall by rule set the dates upon which applications for permits shall be filed and designate the time periods within which the constituent agency shall, after the filing of an administratively complete application for a permit, either grant the permit, grant the permit subject to conditions or deny the permit. The constituent agency has the burden of showing that each condition is reasonable and necessary to ensure compliance with the Water Quality Act and applicable rules, considering site- specific conditions. After rules have been adopted for a particular industry, permits for facilities in that industry shall be subject to conditions contained in the rules. Additional conditions on a final permit may be imposed if the applicant is provided with an opportunity to review and provide comments in writing on the draft permit conditions and to receive a written explanation of the reasons for the conditions from the constituent agency. E. The constituent agency shall deny an application for a permit or request for general permit coverage or deny the certification of a federal water quality permit if: (1) the effluent would not meet applicable state or federal effluent regulations, standards of performance or limitations; (2) a provision of the Water Quality Act would be violated; (3) the discharge would cause or contribute to water contaminant levels in excess of a state or federal standard. Determination of the discharge's effect on ground water shall be measured at a place of withdrawal of water for present or reasonably foreseeable future use. Determination of the discharge's effect on surface waters shall be measured at the point of discharge; (4) the surface water discharge would cause or contribute to water contaminant levels in excess of a downstream state or tribal water quality standard; or (5) the applicant has, within the ten years immediately preceding the date of submission of the permit application or request for general permit coverage: (a) knowingly misrepresented a material fact in an application for a permit or request for general permit coverage; (b) refused or failed to disclose information required pursuant to the Water Quality Act; (c) been convicted of a felony or other crime involving moral turpitude; (d) been convicted of a felony in court for a crime defined by state or federal law as being a restraint of trade, price-fixing, bribery or fraud; (e) exhibited a history of willful disregard for environmental laws of a state or the United States; or (f) had an environmental permit revoked or permanently suspended for cause under environmental laws of a state or the United States. F. For ground water discharge permits, the commission shall by rule develop procedures that ensure that the public and affected governmental agencies, Indian nations, tribes and pueblos and other states shall receive notice of each application and draft of a new permit, a modification of a permit or a renewal of a permit. Public notice shall include: (1) for issuance of new permits or permit modifications: (a) notice to adjacent and nearby landowners using postal or electronic mail; (b) notice to affected local, state and federal government agencies, land grant organizations, ditch associations and Indian nations, tribes and pueblos using postal or electronic mail; (c) posting the notice at a place conspicuous to the public and near the discharge or proposed discharge site; (d) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge or proposed discharge site; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections; and (e) consideration of the languages spoken by and the communication methods accessible to the intended recipients of the public notice; and (2) for permit renewals: (a) notice by postal or electronic mail to the interested public; (b) notice to affected local, state and federal government agencies, land grant organizations, ditch associations and Indian nations, tribes and pueblos; (c) a display advertisement in English and Spanish in a newspaper of general circulation in the location of the discharge site; provided, however, that the advertisement shall not be displayed in the classified or legal advertisement sections; and (d) consideration of the languages spoken by and the communication methods accessible to the intended recipients of the public notice. G. For surface water discharge permits, the commission shall by rule develop procedures that ensure that the public and affected governmental agencies, Indian nations, tribes and pueblos and other states shall receive notice of each draft permit. Public notice shall include the following, except that for a general permit, Paragraphs (1) and (3) of this subsection shall not be required: (1) notice to adjacent and nearby landowners using postal or electronic mail; (2) notice to affected local, state and federal government agencies, land grant organizations, ditch associations and Indian nations, tribes and pueblos using postal or electronic mail; (3) for new surface water discharge permits or permit modifications, posting at a place conspicuous to the public and near the discharge or proposed discharge site; (4) notice to the general public and others whom the commission deems appropriate using one or more reasonable and appropriate methods, such as electronic mail to persons who have requested notification, social media posts, radio announcements or advertisements in a newspaper of general circulation in the location of the discharge or proposed discharge site; and (5) consideration of the languages spoken by and the communication methods accessible to the intended recipients of the public notice. H. No ruling shall be made on a draft permit without opportunity for a public hearing at which all interested persons shall be given a reasonable chance to submit evidence, data, views or arguments orally or in writing and to examine witnesses testifying at the hearing. The hearing shall be recorded. A person submitting evidence, data, views or arguments shall be subject to examination at the hearing. I. The commission may adopt rules for the operation and maintenance of the permitted facility, including requirements, as may be necessary or desirable, that relate to continuity of operation, personnel training and financial responsibility, including financial responsibility for corrective action. J. Permits shall be issued for fixed terms of five years, except that surface water discharge permits may be issued for fixed terms of up to ten years. For new discharges, the term of the permit shall commence on the date the discharge begins, but in no event shall the term of the permit exceed seven years from the date the permit was issued. K. By rule, the commission may impose reasonable conditions upon permits requiring permittees to: (1) install, use and maintain monitoring devices; (2) sample effluents and receiving waters for any known or suspected water contaminants in accordance with methods and at locations and intervals as may be prescribed by the commission; (3) establish and maintain records of the nature and amounts of effluents and the performance of effluent control devices; (4) provide other information relating to the discharge or direct or indirect release of water contaminants; and (5) notify a constituent agency of the introduction of new water contaminants from a new source and of a substantial change in volume or character of water contaminants being introduced from sources in existence at the time of the issuance of the permit. L. The commission shall provide by rule a schedule of fees for permits and approvals of general permit coverage to support the cost of developing and implementing the permitting rules authorized pursuant to Section 74-6-4 NMSA 1978, including the review of applications, issuance and enforcement of permits and rules, compliance assistance, monitoring and inspection of facilities and discharges, data stewardship, records management and administrative and legal costs. Fees collected pursuant to this section shall be deposited in the water quality management fund. M. The issuance of a permit or approval of or request for a general permit coverage does not relieve a person from the responsibility of complying with the provisions of the Water Quality Act, any applicable rules or water quality standards of the commission or any applicable federal laws, regulations or standards. N. A permit or general permit coverage may be terminated or modified by the constituent agency that issued the permit or approved the general permit coverage prior to its date of expiration for any of the following causes: (1) violation of a condition of the permit; (2) obtaining the permit or general permit coverage by misrepresentation or failure to disclose fully all relevant facts; (3) violation of the provisions of the Water Quality Act or any applicable rules, standard of performance or water quality standards; (4) violation of applicable state or federal effluent regulations or limitations; or (5) change in a condition that requires either a temporary or permanent reduction or elimination of the permitted discharge. O. If the constituent agency denies, terminates or modifies a permit or general permit coverage or grants a permit subject to condition, the constituent agency shall notify the applicant or permittee by certified mail or other method acceptable to the applicant or permittee of the action taken and the reasons. Notice shall also be given by postal or electronic mail to persons who participated in the permitting action. P. A person who participated in a permitting action before a constituent agency or a person affected by a certification of a federal permit and who is adversely affected by the permitting action or certification may file a petition for review before the commission. Unless a timely petition for review is made, the decision of the constituent agency shall be final and not subject to judicial review. The petition shall: (1) be made in writing to the commission within thirty days from the date notice is given of the constituent agency's action; (2) include a statement of the issues to be raised and the relief sought; and (3) be provided to all other persons submitting evidence, data, views or arguments in the proceeding before the constituent agency. Q. If a timely petition for review is made, the commission shall consider the petition within ninety days after receipt of the petition. The commission shall notify the petitioner and the applicant or permittee, if other than the petitioner, by certified mail of the date, time and place of the review. If the petitioner is not the applicant or permittee, the applicant or permittee shall be a party to the proceeding. The commission shall ensure that the public receives notice of the date, time and place of the review. R. The commission shall review the record compiled before the constituent agency, including the transcript of a public hearing held on the application or draft permit, and shall allow any party to submit arguments. The commission may designate a hearing officer to review the record and the arguments of the parties and recommend a decision to the commission. The commission shall consider and weigh only the evidence contained in the record before the constituent agency and the recommended decision of the hearing officer, if any, and shall not be bound by the factual findings or legal conclusions of the constituent agency. Based on the review of the evidence, the arguments of the parties and recommendations of the hearing officer, the commission shall sustain, modify or reverse the action of the constituent agency. The commission shall enter ultimate findings of fact and conclusions of law and keep a record of the review. S. Prior to the date set for review, if a party shows to the satisfaction of the commission that there was no reasonable opportunity to submit comment or evidence on an issue being challenged, the commission shall order that additional comment or evidence be taken by the constituent agency. Based on the additional evidence, the constituent agency may revise the decision and shall promptly file with the commission the additional evidence received and action taken. The commission shall consider the additional evidence within ninety days after receipt of the additional evidence and shall notify the petitioner and the applicant or permittee, if other than the petitioner, of the date, time and place of the review. T. The commission shall notify the petitioner and all other participants in the review proceeding of the action taken by the commission and the reasons for that action. U. The only exemptions from surface water discharge permits for point sources are: (1) return flows composed entirely from irrigated agriculture; (2) stormwater runoff from a mining operation or an oil and gas exploration, production, processing or treatment operation or transmission facility that is composed entirely of flows that are from conveyances or systems of conveyances, including pipes, conduits, ditches and channels, used for collecting and conveying precipitation runoff and that are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste product located on the site of the operation or facility; provided that oil and gas exploration, production, processing or treatment operations or transmission facilities include activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not the field activities or operations may be considered to be construction activities; (3) runoff resulting from the following silviculture activities conducted in accordance with standard industry practice: (a) nursery operations; (b) site preparation; (c) reforestation and subsequent cultural treatment; (d) thinning; (e) prescribed burning; (f) pest and fire control; (g) harvesting operations; (h) surface drainage; and (i) road construction and maintenance; and (4) discharges and water contaminants that are subject to effective and enforceable surface water quality requirements in a state or federally issued permit, unless there is a hazard to public health or the environment that may result or an applicable state water quality standard will not be achieved. V. The only exemptions from surface water discharge permits for discharges of dredged or fill material are: (1) normal farming, silviculture and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber and forest products or upland soil and water conservation practices; (2) maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways and bridge abutments or approaches and transportation structures; (3) construction or maintenance of farm or stock ponds, acequias or irrigation ditches or the maintenance of drainage ditches; (4) construction of temporary sedimentation basins on a construction site that does not include placement of fill material into the surface waters; (5) construction or maintenance of farm roads, forest roads or temporary roads for moving mining equipment, where such roads are constructed and maintained, in accordance with best management practices, to assure that: (a) flow and circulation patterns and chemical and biological characteristics of the surface waters are not impaired; (b) the reach of the surface waters is not reduced; and (c) any adverse effect on the aquatic environment will be otherwise minimized; and (6) discharges that are subject to effective and enforceable surface water quality requirements in a state-issued or federally issued permit, unless there is a hazard to public health or the environment that may result or an applicable state water quality standard will not be achieved. W. The exemptions provided in Subsection V of this section shall not apply if the discharge resulting from the activities contains any toxic pollutant as set forth in rule by the commission or if a new activity brings a surface water of the state into farm production where the area of the surface water has not previously been used for farming.

Legislative History

1953 Comp., § 75-39-4.1, enacted by Laws 1973, ch. 326, § 4; 1985, ch. 157,