0001| HOUSE BILL 1262
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| G. X. MCSHERRY
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0005|
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0006|
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0007|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO WATER; NAMING THE NEW MEXICO DEPARTMENT OF
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0012| AGRICULTURE AS THE CONSTITUENT AGENCY FOR WATER QUALITY ISSUES
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0013| AND REGULATION OF THE AGRICULTURAL INDUSTRY; AMENDING AND
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0014| ENACTING SECTIONS OF THE NMSA 1978.
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0015|
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0016| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0017| Section 1. Section 74-6-4 NMSA 1978 (being Laws 1967,
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0018| Chapter 190, Section 4, as amended) is amended to read:
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0019| "74-6-4. DUTIES AND POWERS OF COMMISSION.--The
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0020| commission:
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0021| A. may accept and supervise the administration of
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0022| loans and grants from the federal government and from other
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0023| sources, public or private, which loans and grants shall not be
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0024| expended for other than the purposes for which provided;
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0025| B. shall adopt a comprehensive water quality
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0001| management program and develop a continuing planning process;
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0002| C. shall adopt water quality standards for surface
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0003| and ground waters of the state subject to the Water Quality
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0004| Act. The standards shall include narrative standards and, as
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0005| appropriate, the designated uses of the waters and the water
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0006| quality criteria necessary to protect such uses. The standards
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0007| shall at a minimum protect the public health or welfare,
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0008| enhance the quality of water and serve the purposes of the
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0009| Water Quality Act. In making standards, the commission shall
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0010| give weight it deems appropriate to all facts and
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0011| circumstances, including the use and value of the water for
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0012| water supplies, propagation of fish and wildlife, recreational
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0013| purposes and agricultural, industrial and other purposes;
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0014| D. shall adopt, promulgate and publish regulations
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0015| to prevent or abate water pollution in the state or in any
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0016| specific geographic area, aquifer or watershed of the state or
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0017| in any part thereof, or for any class of waters, and to govern
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0018| the disposal of septage and sludge and the use of sludge for
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0019| various beneficial purposes. The regulations governing the
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0020| disposal of septage and sludge may include the use of tracking
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0021| and permitting systems or other reasonable means necessary to
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0022| assure that septage and sludge are designated for disposal in,
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0023| and arrive at, disposal facilities, other than facilities on
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0024| the premises where the septage and sludge is generated, for
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0025| which a permit or other authorization has been issued pursuant
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0001| to the federal act or the Water Quality Act. Regulations shall
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0002| not specify the method to be used to prevent or abate water
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0003| pollution but may specify a standard of performance for new
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0004| sources that reflects the greatest reduction in the
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0005| concentration of water contaminants that the commission
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0006| determines to be achievable through application of the best
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0007| available demonstrated control technology, processes, operating
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0008| methods or other alternatives, including where practicable a
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0009| standard permitting no discharge of pollutants. In making
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0010| regulations, the commission shall give weight it deems
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0011| appropriate to all relevant facts and circumstances, including:
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0012| (1) character and degree of injury to or
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0013| interference with health, welfare, environment and property;
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0014| (2) the public interest, including the social
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0015| and economic value of the sources of water contaminants;
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0016| (3) technical practicability and economic
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0017| reasonableness of reducing or eliminating water contaminants
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0018| from the sources involved and previous experience with
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0019| equipment and methods available to control the water
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0020| contaminants involved;
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0021| (4) successive uses, including but not limited
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0022| to domestic, commercial, industrial, pastoral, agricultural,
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0023| wildlife and recreational uses;
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0024| (5) feasibility of a user or a subsequent user
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0025| treating the water before a subsequent use;
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0001| (6) property rights and accustomed uses; and
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0002| (7) federal water quality requirements;
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0003| E. shall assign responsibility for administering
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0004| its regulations to constituent agencies so as to assure
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0005| adequate coverage and prevent duplication of effort. [To this
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end] The commission may make such classification of waters and
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0007| sources of water contaminants as will facilitate the assignment
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0008| of administrative responsibilities to constituent agencies.
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0009| The commission shall also hear and decide disputes between
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0010| constituent agencies as to jurisdiction concerning any matters
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0011| within the purpose of the Water Quality Act. In assigning
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0012| responsibilities to constituent agencies, the commission shall
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0013| give priority to the primary interests of the constituent
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0014| agencies. The department of environment [shall] may
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0015| provide technical services, including certification of permits
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0016| pursuant to the federal act, at the request of a constituent
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0017| agency;
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0018| F. may enter into or authorize constituent agencies
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0019| to enter into agreements with the federal government or other
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0020| state governments for purposes consistent with the Water
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0021| Quality Act and receive and allocate to constituent agencies
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0022| funds made available to the commission;
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0023| G. may grant an individual variance from any
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0024| regulation of the commission whenever it is found that
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0025| compliance with the regulation will impose an unreasonable
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0001| burden upon any lawful business, occupation or activity. The
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0002| commission may only grant a variance conditioned upon a person
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0003| effecting a particular abatement of water pollution within a
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0004| reasonable period of time. Any variance shall be granted for
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0005| the period of time specified by the commission. The commission
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0006| shall adopt regulations specifying the procedure under which
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0007| variances may be sought, which regulations shall provide for
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0008| the holding of a public hearing before any variance may be
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0009| granted;
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0010| H. may adopt regulations to require the filing with
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0011| it or a constituent agency of proposed plans and specifications
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0012| for the construction and operation of new sewer systems,
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0013| treatment works or sewerage systems or extensions,
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0014| modifications of or additions to new or existing sewer systems,
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0015| treatment works or sewerage systems. Filing with and approval
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0016| by the federal housing administration of plans for an extension
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0017| to an existing or construction of a new sewerage system
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0018| intended to serve a subdivision solely residential in nature
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0019| shall be deemed compliance with all provisions of this
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0020| subsection;
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0021| I. may adopt regulations requiring notice to it or
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0022| a constituent agency of intent to introduce or allow the
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0023| introduction of water contaminants into waters of the state;
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0024| J. may adopt regulations establishing pretreatment
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0025| standards that prohibit or control the introduction into
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0001| publicly owned sewerage systems of water contaminants that are
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0002| not susceptible to treatment by the treatment works or that
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0003| would interfere with the operation of the treatment works;
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0004| K. shall not require a permit respecting the use of
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0005| water in irrigated agriculture, except in the case of the
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0006| employment of a specific practice in connection with such
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0007| irrigation that documentation or actual case history has shown
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0008| to be hazardous to public health or the environment; and
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0009| L. shall coordinate application procedures and
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0010| funding cycles for loans and grants from the federal government
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0011| and from other sources, public or private, with the local
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0012| government division of the department of finance and
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0013| administration pursuant to the New Mexico Community Assistance
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0014| Act."
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0015| Section 2. Section 74-6-5 NMSA 1978 (being Laws 1973,
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0016| Chapter 326, Section 4, as amended by Laws 1993, Chapter 100,
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0017| Section 3 and also by Laws 1993, Chapter 291, Section 5) is
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0018| amended to read:
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0019| "74-6-5. PERMITS--CERTIFICATION--APPEALS TO COMMISSION.--
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0020| A. By regulation, the commission may require
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0021| persons to obtain from a constituent agency designated by the
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0022| commission a permit for the discharge of any water contaminant
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0023| or for the disposal or re-use of septage or sludge.
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0024| B. The commission shall adopt regulations
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0025| establishing procedures for certifying federal water quality
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0001| permits.
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0002| C. Prior to the issuance of a permit, the
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0003| constituent agency may require the submission of plans,
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0004| specifications and other relevant information that it deems
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0005| necessary.
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0006| D. The commission shall by regulation set the dates
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0007| upon which applications for permits shall be filed and
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0008| designate the time periods within which the constituent agency
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0009| shall, after the filing of an administratively complete
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0010| application for a permit, either grant the permit, grant the
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0011| permit subject to conditions or deny the permit.
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0012| E. The constituent agency shall deny any
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0013| application for a permit or deny the certification of a federal
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0014| water quality permit if:
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0015| (1) the effluent would not meet applicable
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0016| state or federal effluent regulations, standards of performance
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0017| or limitations;
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0018| (2) any provision of the Water Quality Act
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0019| would be violated;
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0020| (3) the discharge would cause or contribute to
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0021| water contaminant levels in excess of any state or federal
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0022| standard. Determination of the discharges' effect on
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0023| groundwater shall be measured at any place of withdrawal of
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0024| water for present or reasonably foreseeable future use.
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0025| Determination of the discharges' effect on surface waters shall
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0001| be measured at the point of discharge; or
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0002| (4) the applicant has, within the ten years
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0003| immediately preceding the date of submission of the permit
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0004| application:
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0005| (a) knowingly misrepresented a material
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0006| fact in an application for a permit;
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0007| (b) refused or failed to disclose any
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0008| information required under the Water Quality Act;
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0009| (c) been convicted of a felony or other
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0010| crime involving moral turpitude;
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0011| (d) been convicted of a felony in any
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0012| court for any crime defined by state or federal law as being a
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0013| restraint of trade, price-fixing, bribery or fraud;
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0014| (e) exhibited a history of willful
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0015| disregard for environmental laws of any state or the United
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0016| States; or
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0017| (f) had an environmental permit revoked
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0018| or permanently suspended for cause under any environmental laws
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0019| of any state or the United States.
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0020| F. The commission shall by regulation develop
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0021| procedures that [will] ensure that the public, affected
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0022| governmental agencies and any other state whose water may be
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0023| affected shall receive notice of each application for issuance
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0024| or modification of a permit. No ruling shall be made on any
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0025| application for a permit without opportunity for a public
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0001| hearing at which all interested persons shall be given a
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0002| reasonable chance to submit data, views or arguments orally or
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0003| in writing and to examine witnesses testifying at the hearing.
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0004| G. The commission may adopt regulations for the
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0005| operation and maintenance of the permitted facility, including
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0006| requirements, as may be necessary or desirable, that relate to
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0007| continuity of operation, personnel training and financial
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0008| responsibility, including financial responsibility for
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0009| corrective action.
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0010| H. Permits shall be issued for fixed terms not to
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0011| exceed five years, except that for new discharges, the term of
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0012| the permit shall commence on the date the discharge begins, but
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0013| in no event shall the term of the permit exceed seven years
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0014| from the date the permit was issued.
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0015| I. By regulation, the commission may impose
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0016| reasonable conditions upon permits requiring permittees to:
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0017| (1) install, use and maintain effluent
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0018| monitoring devices;
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0019| (2) sample effluents and receiving waters for
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0020| any known or suspected water contaminants in accordance with
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0021| methods and at locations and intervals as may be prescribed by
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0022| the commission;
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0023| (3) establish and maintain records of the
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0024| nature and amounts of effluents and the performance of effluent
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0025| control devices;
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0001| (4) provide any other information relating to
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0002| the discharge or direct or indirect release of water
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0003| contaminants; and
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0004| (5) notify a constituent agency of the
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0005| introduction of new water contaminants from a new source and of
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0006| a substantial change in volume or character of water
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0007| contaminants being introduced from sources in existence at the
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0008| time of the issuance of the permit.
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0009| J. The commission shall provide by regulation a
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0010| schedule of fees for permits, not exceeding the estimated cost
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0011| of investigation and issuance, modification and renewal of
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0012| permits. Fees collected pursuant to this section shall be
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0013| deposited in the water quality management fund; provided,
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0014| however, that fees collected by the New Mexico department of
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0015| agriculture as the constituent agency for the agricultural
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0016| industry pursuant to Section 3 of this act shall be remitted to
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0017| the department.
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0018| K. The issuance of a permit does not relieve any
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0019| person from the responsibility of complying with the provisions
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0020| of the Water Quality Act, any applicable regulations or water
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0021| quality standards of the commission or any applicable federal
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0022| laws, regulations or standards.
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0023| L. A permit may be terminated or modified by the
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0024| constituent agency that issued the permit prior to its date of
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0025| expiration for any of the following causes:
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0001| (1) violation of any condition of the permit;
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0002| (2) obtaining the permit by misrepresentation
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0003| or failure to disclose fully all relevant facts;
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0004| (3) violation of any provisions of the Water
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0005| Quality Act or any applicable regulations, standard of
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0006| performance or water quality standards;
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0007| (4) violation of any applicable state or
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0008| federal effluent regulations or limitations; or
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0009| (5) change in any condition that requires
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0010| either a temporary or permanent reduction or elimination of the
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0011| permitted discharge.
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0012| M. If the constituent agency denies, terminates or
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0013| modifies a permit or grants a permit subject to condition, the
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0014| constituent agency shall notify the applicant or permittee by
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0015| certified mail of the action taken and the reasons.
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0016| N. A person who participated in a permitting action
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0017| before a constituent agency or a person affected by a
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0018| certification of a federal permit and who is adversely affected
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0019| by such permitting action or certification may file a petition
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0020| for hearing before the commission. The petition shall be made
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0021| in writing to the commission within thirty days from the date
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0022| notice is given of the constituent agency's action. Unless a
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0023| timely request for hearing is made, the decision of the
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0024| constituent agency shall be final.
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0025| O. If a timely petition for hearing is made, the
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0001| commission shall hold a hearing within ninety days after
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0002| receipt of the petition. The commission shall notify the
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0003| petitioner and the applicant or permittee if other than the
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0004| petitioner by certified mail of the date, time and place of the
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0005| hearing. If the commission deems the action that is the
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0006| subject of the petition to be affected with substantial public
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0007| interest, it shall ensure that the public receives notice of
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0008| the date, time and place of the hearing and [shall be] is
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0009| given a reasonable chance to submit data, views or arguments
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0010| orally or in writing and to examine witnesses testifying at the
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0011| hearing. A person submitting data, views or arguments orally
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0012| or in writing shall be subject to examination at the hearing.
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0013| In the hearing, the burden of proof shall be upon the
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0014| petitioner. The commission may designate a hearing officer to
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0015| take evidence in the hearing. Based upon the evidence
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0016| presented at the hearing, the commission shall sustain, modify
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0017| or reverse the action of the constituent agency.
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0018| P. If the petitioner requests, the hearing shall be
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0019| recorded at the cost of the petitioner. Unless the petitioner
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0020| requests that the hearing be recorded, the decision of the
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0021| commission shall be final."
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0022| Section 3. A new section of the Water Quality Act is
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0023| enacted to read:
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0024| "[NEW MATERIAL] AGRICULTURAL INDUSTRY--DEPARTMENT OF
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0025| AGRICULTURE IS CONSTITUENT AGENCY.--The New Mexico department
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0001| of agriculture is the constituent agency for water
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0002| classification and water quality issues arising from the
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0003| agricultural industry and shall regulate the agricultural
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0004| industry on all matters pertaining to the Water Quality Act.
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0005| For purposes of this section, "agricultural industry" includes
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0006| dairy farmers, milk producers, other livestock production and
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0007| feeding facilities and farm crop production facilities."
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0008| Section 4. A new section of Chapter 76, Article 1 NMSA
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0009| 1978 is enacted to read:
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0010| "[NEW MATERIAL] DEPARTMENT OF AGRICULTURE--CONSTITUENT
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0011| AGENCY FOR WATER QUALITY OF AGRICULTURAL INDUSTRY.--The New
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0012| Mexico department of agriculture shall be the constituent
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0013| agency of the water quality control commission for water
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0014| classification and water quality issues of the agricultural
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0015| industry and shall regulate the agricultural industry on all
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0016| matters pertaining to the Water Quality Act. For purposes of
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0017| this section,
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0018| "agricultural industry" includes dairy farmers, milk producers,
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0019| other livestock production and feeding facilities and farm crop
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0020| production facilities."
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0021|
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