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New Mexico 401 Water Quality Certification (14-NM-d)

Developers requiring a Section 404 Dredge and Fill Permit from the U S Army Corps of Engineers (USACE) are required to obtain a Section 401 Water Quality Certification from the state of New Mexico. Pursuant to NMSA 74-6-4, the New Mexico Environment Department (NMED) has the authority to issue or deny 401 Water Quality Certifications for dredge and fill activities in New Mexico. The NMED’s issuance of 401 Water Quality Certification signifies that the NMED has reasonable assurance that the developer’s project will comply with state water quality standards, including the antidegradation policy, and applicable statewide water quality management plans. New Mexico regulates water quality under NMSA 74-6 and provides water quality standards in NMAC 20.6.4.

401 Water Quality Certification Process

14-NM-d.1 – ENG Form 4345 Application and Pre-Construction Notification

Developers should send a copy of a completed 404 Dredge and Fill Permit Application (ENG Form 4345 Application) to the NMED Surface Water Quality Bureau. Generally, the application must include requisite identifying information, a location and description of the project, and addresses of property owners whose property adjoins the waterbody. Ultimately, the USACE will choose whether or not to approve the 404 Application itself, but NMED uses relevant information in the application as part of the certification review process.

Developers should also send a copy of a completed Pre-Construction Notification for 404 dredge and fill activities to the NMED. The notification must include more details about the project than the ENG Form 4345 Application, including specific materials and amounts proposed to be discharged and/or dredged, direct and indirect and/or cumulative impacts resulting from the activity, and proposed compensatory mitigation. Again, this document is formally processed by the USACE, but the NMED uses relevant information in the application as part of the certification review process.

For more information, visit the SWQB website.

14-NM-d.2 to 14-NM-d.3 – Provide Notice of Review of Draft Dredged or Fill Permit Application to Public

Ideally, the NMED will notify the public that the NMED is reviewing a draft permit or permit application for the purpose of state certification or denial, jointly with the public notice issued by USACE. NMAC Whether joint notice is practicable or not, the NMED will always post notice of review on its website. Where joint notice is impracticable, the NMED will publish notice in a newspaper of general circulation and mail or e-mail notice to any affected local, state, federal, tribal, or pueblo government agency. NMAC

Proper notice includes a brief description of the project and location as well as a statement that the NMED will accept written comment on the draft permit during the comment period, including the address where comments are to be sent. NMAC The interested public has 30 days from the first date of notice to submit written comments and the NMED must consider all pertinent comments. NMAC 20.6.2002.F.

14-NM-d.4 to 14-NM-d.6 – Does the NMED Approve the Certification?

After the public comment period and in consideration of all information in the aforementioned applications and pertinent public comments (if any), the NMED will either issue or deny a 401 Water Quality Certification. An approved certification will likely include added conditions and stipulations that ensure compliance with the state water quality standards, antidegradation plan, and statewide water quality management plan. The NMED issues most certification decisions within 60 days of a review request. NMAC In all cases, the NMED will send a copy of the final certification or denial to the USACE, the applicant, and members of the public who submitted comments. A certification denial must include reasons for the denial.

14-NM-d.7 to 14-NM-d.10 – Does Any Person Adversely Affected by the Decision Appeal?

Whether the NMED issues a certification or a denial, any person who is adversely affected by the decision may appeal the decision by filing a petition for review with the secretary of the NMED (Secretary) within 30 days after the NMED issues the final permit certification or statement of denial. The petition must be in writing, state the reasons for the appeal, and request relief. NMAC Upon receiving the petition, the Secretary will decide whether or not to hold a hearing on the appeal. Where the NMED does not receive a petition within 30 days of the decision, the developer may continue with the project, assuming the NMED granted 401 Water Quality Certification.

14-NM-d.11 to 14-NM-d.13 – Provide Notice of Hearing

Where the Secretary decides to hold a hearing, the NMED must give notice of the hearing at least 30 days prior to the hearing. The Secretary will appoint a Hearing Officer to preside over the hearing. The scope of allowable presentable information at the hearing is large, however, cross examination of persons presenting oral statements is not allowed. Within 30 days after the hearing, the Hearing Officer will submit recommendations to the Secretary. Within 30 days of receiving those recommendations, the Secretary will issue a final decision.

14-NM-d.14 – Final Decision

Where the Secretary decides a hearing is unnecessary, the Secretary will issue a final decision in consideration of all the relevant information.

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