New Mexico NPDES Permit (14-NM-b)
The Clean Water Act (CWA) required the Environmental Protection Agency (EPA) to establish the National Pollutant Discharge Elimination System (NPDES) program to require facilities discharging from a point source into waters of the United States to obtain discharge permits. A NPDES permit contains limits on what can be discharged and other provisions to ensure that the discharge does not harm water quality or public health.
In New Mexico, the NPDES permit program is administered by the United States Environmental Protection Agency (EPA). New Mexico’s role in the NPDES process is to ensure that NPDES-permitted projects comply with state water quality standards outlined in NMAC 20.6.4 through the New Mexico Environment Department (NMED).
Waters of the United States
The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, 33 USC 1251 et. seq. and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.
The definition of waters of the United States extends to certain waters associated with jurisdictional waters (see 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).
"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.
NPDES Permit Process
14-NM-b.1 – Initiate EPA NPDES Permitting Process
New Mexico’s review of NPDES permits occurs in conjunction with the EPA’s review of the NPDES permit. The developer must initiate the federal NPDES process outlined in EPA NPDES Permitting Process:
14-FD-b, and follow requirements for federal review.
14-NM-b.2 – Provide Draft Permit to NMED
After the EPA develops a Draft Permit, they must provide a copy of the Draft Permit to NMED for review.
14-NM-b.3 – Provide Public Notice of Draft Permit Review
NMED is required to provide public notice that they are reviewing a Draft Permit for the purpose of preparing a state certification or denial. NMED is also required to post notice on its website. NMAC 18.104.22.1681(C).
14-NM-b.4 – Review Draft Permit for Compliance with State Water Quality Standards
EPA will provide NMED with a Draft Permit for review to ensure compliance with state water quality standards.
14-NM-b.5 – Does NMED Certify the Application?
Following review of the Draft Permit, NMED will either:
- Certify that the discharge will comply with the applicable provisions of the CWA and with applicable state laws;
- Certify that the discharge will comply with the applicable provisions of the CWA and with appropriate requirements of state law upon inclusion of specified conditions in the permit and include the justification for the conditions; or
- Deny certification and include reasons for the denial. NMAC 22.214.171.1241.
14-NM-b.6 to 14-NM-b.7 – Does NMED Approve the Final Certification?
Following a required EPA notice and comment period, NMED may approve, approve with conditions, or deny the final certification. If NMED denies the certification, then the developer may amend project conditions and seek certification again.
14-NM-b.8 – Final Certification
NMED then provides a final certification decision within 45 days unless a longer period of time is requested. NMAC 126.96.36.1991(G).
14-NM-b.9 – Continue EPA NPDES Permitting Process
After the developer has obtained Certification from NMED for the project, they must fulfill any further requirements necessary for an EPA NPDES permit.
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