New Mexico Administrative Code
Title 20 - ENVIRONMENTAL PROTECTION
Chapter 6 - WATER QUALITY
Part 2 - GROUND AND SURFACE WATER PROTECTION
Section 20.6.2.2003 - PROCEDURES FOR CERTIFICATION OF OTHER FEDERAL PERMITS
Current through Register Vol. 35, No. 6, March 26, 2024
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:
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:
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:
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.
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.