N.M. Admin. Code § 20.6.2.2003 - PROCEDURES FOR CERTIFICATION OF OTHER FEDERAL PERMITS

A. This section applies to the state certification of draft federal permits, permit applications or licenses under Section 401 of the federal Clean Water Act, except for NPDES permits or permits for the discharge of dredged or fill material. For example, this section applies to certification of permits or licenses issued by the federal energy regulatory commission (FERC) and to permits or licenses issued under the Rivers and Harbors Act of 1899. The purpose of such certification is to reasonably ensure that the permitted activities will be conducted in a manner that will comply with applicable water quality standards, including the antidegradation policy, and the statewide water quality management plan.

B. After review of a draft permit, permit application or license, the department will either:

(1) certify that the activity will comply with the applicable provisions of Sections 301, 302, 303, 306 and 307 of the federal Clean Water Act and with appropriate requirements of state law;

(2) certify that the activity will comply with the applicable provisions of Sections 301, 302, 303, 306 and 307 of the Clean Water Act and with appropriate requirements of state law upon inclusion of specified conditions in the permit and include the justification for the conditions; or

(3) deny certification and include reasons for the denial. If the department does not act on the certification within the time prescribed by the federal permitting agency for such action, the authority to do so shall be waived.

C. To the extent practicable, the department will provide public notice that the department is reviewing a draft federal permit, permit application or license for the purpose of preparing a state certification or denial jointly with the notice provided by the federal permitting or licensing agency. The department will also post notice on its website.

D. When joint notice is impractical, the department shall provide notice that the department is reviewing a draft federal permit, permit application or license for purpose of preparing a state certification or denial pursuant to Section 401 of the federal Clean Water Act as follows:

(1) for general permits or licenses by:

(a) posting notice on the department's website;

(b) publishing notice in at least one newspaper of general circulation;

(c) mailing or e-mailing notice to those persons on the general mailing list maintained by the department who have requested such notice; and

(d) mailing or e-mailing notice to any affected local, state, federal, tribal, or pueblo government agency, as identified by the department; or

(2) for individual permits or licenses by:

(a) posting notice on the department's website;

(b) publishing notice in a newspaper of general circulation in the location of the permitted or licensed activity;

(c) mailing notice to the applicant;

(d) mailing or e-mailing notice to those persons on the general and facility-specific mailing list maintained by the department who have requested such notice; and

(e) mailing notice to any affected local, state, federal, tribal, or pueblo government agency, as identified by the department.

E. Public notices may describe more than one license, permit or permit action. The notice provided under Subsections C and D of 20.6.2.2003 NMAC shall include:

(1) for general permits or licenses:

(a) a statement that the department will accept written comments on the permit or license during the comment period including the address where comments may be submitted; and

(b) a brief description of the permitted or licensed activities; and

(c) a description of the geographic area to be covered by the permit; or

(2) for individual permits or licenses:

(a) a statement that the department will accept written comments on the permit or license during the comment period including the address where comments may be submitted;

(b) the name and address of the licensee, permittee or permit or license applicant and, if different, of the facility or activity regulated by the permit or license;

(c) a brief description of the permitted or licensed activities; and

(d) a general description of the location of the permitted or licensed activities and the name of the receiving water.

F. Following the public notice provided under Subsections C or D of 20.6.2.2003 NMAC, there shall be a period of at least 30 days during which interested persons may submit written comments to the department. The 30-day comment period shall begin on the date of the public notice provided under Subsections C or D of 20.6.2.2003 NMAC. The department shall consider all pertinent comments.

G. Following the public comment period provided under Subsection F of 20.6.2.2003 NMAC, the department shall issue a final certification including any conditions that the department places on the certification, or issue a statement of denial including the reasons for the denial. The final certification will generally be issued within 60 days from the date a request to grant or deny certification is received by the department, unless the department in consultation with the federal permitting or licensing agency finds that unusual circumstances require a longer time. The department shall send a copy of the final certification or denial to the federal permitting or licensing agency, the applicant (except for general permits), and those members of the public who submitted comments to the department.

(1) The certification or denial shall be in writing and shall include:

(a) the name of the applicant (except for general permits) and the permit or license number;

(b) a statement that the department has examined the application or other relevant information and bases its certification upon an evaluation of the information contained in such application or other information which is relevant to water quality considerations;

(c) a statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards;

(d) a statement of any conditions which the department deems necessary or desirable with respect to the discharge of the activity;

(e) identification of any condition more stringent than that in the draft permit or license required to assure compliance with the applicable provisions of Sections 301, 302, 303, 306 and 307 of the Clean Water Act and with appropriate requirements of state law citing the Clean Water Act or state law upon which the condition is based;

(f) a statement of the extent to which each condition of the draft permit or license can be made less stringent without violating the requirements of state law, including water quality standards; and

(g) Such other information as the department may determine to be appropriate.

(2) With justification, including any of the reasons listed in the New Mexico Water Quality Act, NMSA 1978, Section 74-6-5(E), the department may deny certification. Denial of certification shall be in writing and shall include:

(a) the name of the applicant (except for general permits) and the permit or license number;

(b) a statement that the department has examined the application or other relevant information and bases its denial upon an evaluation of the information contained in such application or other information which is relevant to water quality considerations;

(c) a statement of denial including the reasons for the denial; and

(d) such other information as the department may determine to be appropriate.

H. Any person who is adversely affected by the certification or denial of a specific permit or license may appeal such certification or denial by filing a petition for review with the secretary within 30 days after the department issues the final certification or statement of denial. Such petition shall be in writing and shall include a concise statement of the reasons for the appeal and the relief requested. The secretary may hold a hearing on the appeal. In any such appeal hearing, the procedures of 20.1.4 NMAC shall not apply. The department shall give notice of the appeal hearing at least 30 days prior to the hearing. The notice shall state the date, time, and location of the appeal hearing and shall include the pertinent information listed in Subparagraphs (b), (c), and (d) of Paragraph (2) of Subsection E of 20.6.2.2003 NMAC. The secretary shall appoint a hearing officer to preside over the appeal hearing. Any person may present oral or written statements, data, technical information, legal arguments, or other information on the certification or denial during the appeal hearing. Any person may present oral or written statements, data, technical information, legal arguments, or other information in rebuttal of that presented by another person. Reasonable time limits may be placed on oral statements, and the submission of written statements may be required. The hearing officer may question persons presenting oral testimony. Cross examination of persons presenting oral statements shall not otherwise be allowed. Within 30 days after the completion of the hearing, or such other time as the secretary may order given the complexities of the case, the hearing officer shall submit recommendations to the secretary. The secretary shall issue a final decision on the appeal within 30 days after receiving the recommendation, or such other time as the secretary may order given the complexities of the case.

I. Pursuant to the New Mexico Water Quality Act, NMSA 1978, Section 74-6-5(O), any person who is adversely affected by the secretary's final decision may file with the commission a petition for review of that decision based on the administrative record.

Notes

N.M. Admin. Code § 20.6.2.2003

20.6.2.2003 NMAC - N, 5-18-11