N.M. Admin. Code § 20.6.4.10

Current through Register Vol. 35, No. 21, November 5, 2024

Section 20.6.4.10 - REVIEW OF STANDARDS; NEED FOR ADDITIONAL STUDIES

A. Section 303(c)(1) of the federal Clean Water Act requires that the state hold public hearings at least once every three years for the purpose of reviewing water quality standards and proposing, as appropriate, necessary revisions to water quality standards.

B. In accordance with 40 CFR 131.10(i), when an existing use, as defined under 20.6.4.7 NMAC, is higher quality water than prescribed by the designated use and supporting evidence demonstrates the presence of that use, the designated use shall be amended accordingly to have criteria no less stringent than the existing use.

C. It is recognized that, in some cases, numeric criteria for a particular designated use may not adequately reflect the local conditions or the aquatic communities adapted to those localized conditions. In these cases, a water quality criterion may be modified to reflect the natural condition of a specific waterbody. The modification of the criterion does not change the designated use; the modification only changes the criterion for that specific waterbody. When justified by sufficient data and information, a numeric water quality criterion may be adopted or modified in accordance with Subsection F of 20.6.4.10 and Subsection G of 20.6.4.10 NMAC, to protect the attainable uses of the waterbody.

D. The removal or amendment of a designated use to a designated use with less stringent criteria can only be done through a use attainability analysis in accordance with 20.6.4.15 NMAC.

E. It is also recognized that contributions of water contaminants by diffuse nonpoint sources of water pollution may make attainment of certain criteria difficult. Revision of these criteria may be necessary as new information is obtained on nonpoint sources and other problems unique to semi-arid regions.

F.Site-specific criteria.

(1) The commission may adopt site-specific numeric criteria applicable to all or part of a surface water of the state based on relevant site-specific conditions such as:

(a) actual species at a site are more or less sensitive than those used in the national criteria data set;

(b) physical or chemical characteristics at a site such as pH or hardness alter the biological availability and/or toxicity of the chemical;

(c) physical, biological or chemical factors alter the bioaccumulation potential of a chemical;

(d) the concentration resulting from natural background exceeds numeric criteria for aquatic life, wildlife habitat or other uses if consistent with Subsection G of 20.6.4.10 NMAC; or

(e) other factors or combination of factors that upon review of the commission may warrant modification of the default criteria, subject to EPA review and approval.

(2) Site-specific criteria must fully protect the designated use to which they apply. In the case of human health-organism only criteria, site-specific criteria must fully protect human health when organisms are consumed from waters containing pollutants.

(3) Any person may petition the commission to adopt site-specific criteria. A petition for the adoption of site-specific criteria shall:

(a) identify the specific waters to which the site-specific criteria would apply;

(b) explain the rationale for proposing the site-specific criteria;

(c) describe the methods used to notify and solicit input from potential stakeholders and from the general public in the affected area, and present and respond to the public input received;

(d) present and justify the derivation of the proposed criteria.

(4) A derivation of site-specific criteria shall rely on a scientifically defensible method, such as one of the following:

(a) the recalculation procedure, the water-effect ratio for metals procedure or the resident species procedure as described in the water quality standards handbook (EPA-823-B-94-005a, 2nd edition, August 1994);

(b) the streamlined water-effect ratio procedure for discharges of copper (EPA-822-R-01-005, March 2001);

(c) the biotic ligand model as described in aquatic life ambient freshwater quality criteria - copper (EPA-822-R-07-001, February 2007);

(d) the methodology for deriving ambient water quality criteria for the protection of human health (EPA-822-B-00-004, October 2000) and associated technical support documents; or

(e) a determination of the natural background of the water body as described in Subsection G of 20.6.4.10 NMAC.

G.Site-specific criteria based on natural background. The commission may adopt site-specific criteria equal to the concentration resulting from natural background where that concentration protects the designated use. The concentration resulting from natural background supports the level of aquatic life and wildlife habitat expected to occur naturally at the site absent any interference by humans. Domestic water supply, primary or secondary contact, or human health-organism only criteria shall not be modified based on natural background. A determination of natural background shall:

(1) consider natural spatial and seasonal to interannual variability as appropriate;

(2) document the presence of natural sources of the pollutant;

(3) document the absence of human sources of the pollutant or quantify the human contribution; and

(4) rely on analytical, statistical or modeling methodologies to quantify the natural background.

H.Temporary standards.

(1) Any person may petition the commission to adopt a temporary standard applicable to all or part of a surface water of the state as provided for in this section and applicable sections in 40 CFR Part 131, Water Quality Standards; specifically, Section 131.14. The commission may adopt a proposed temporary standard if the petitioner demonstrates that:

(a) attainment of the associated designated use may not be feasible in the short term due to one or more of the factors listed in 40 CFR 131.10(g), or due to the implementation of actions necessary to facilitate restoration such as through dam removal or other significant wetland or water body reconfiguration activities as demonstrated by the petition and supporting work plan requirements in Paragraphs (4) and (5) of Subsection H of 20.6.4.10 NMAC;

(b) the proposed temporary standard represents the highest degree of protection feasible in the short term, limits the degradation of water quality to the minimum necessary to achieve the original standard by the expiration date of the temporary standard, and adoption will not cause the further impairment or loss of an existing use;

(c) for point sources, existing or proposed discharge control technologies will comply with applicable technology-based limitations and feasible technological controls and other management alternatives, such as a pollution prevention program; and

(d) for restoration activities, nonpoint source or other control technologies shall limit downstream impacts, and if applicable, existing or proposed discharge control technologies shall be in place consistent with Subparagraph (c) of Paragraph (1) of Subsection H of 20.6.4.10 NMAC.

(2) A temporary standard shall apply to specific designated use(s), pollutant(s), or permittee(s), and to specific water body segment(s). The adoption of a temporary standard does not exempt dischargers from complying with all other applicable water quality standards or control technologies.

(3) Designated use attainment as reported in the federal Clean Water Act, Section 305(b)/303(d) Integrated Report shall be based on the original standard and not on a temporary standard.

(4) A petition for a temporary standard shall:

(a) identify the currently applicable standard(s), the proposed temporary standard for the specific pollutant(s), the permittee(s), and the specific surface water body segment(s) of the state to which the temporary standard would apply;

(b) include the basis for any factor(s) specific to the applicability of the temporary standard (for example critical flow under Subsection B of 20.6.4.11 NMAC);

(c) demonstrate that the proposed temporary standard meets the requirements in this subsection;

(d) present a work plan with timetable of proposed actions for achieving compliance with the original standard in accordance with Paragraph (5) of Subsection H of 20.6.4.10 NMAC;

(e) include any other information necessary to support the petition.

(5) As a condition of a petition for a temporary standard, in addition to meeting the requirements in this Subsection, the petitioner shall prepare a work plan in accordance with Paragraph (4) of Subsection H of 20.6.4.10 NMAC and submit the work plan to the department for review and comment. The work plan shall identify the factor(s) listed in 40 CFR 131.10(g) or Subparagraph (a) of Paragraph (1) of Subsection H of 20.6.4.10 NMAC affecting attainment of the standard that will be analyzed and the timeline for proposed actions to be taken to achieve the uses attainable over the term of the temporary standard, including baseline water quality, and any investigations, projects, facility modifications, monitoring, or other measures necessary to achieve compliance with the original standard. The work plan shall include provisions for review of progress in accordance with Paragraph (8) of Subsection H of 20.6.4.10 NMAC, public notice and consultation with appropriate state, tribal, local and federal agencies.

(6) The commission may condition the approval of a temporary standard by requiring additional monitoring, relevant analyses, the completion of specified projects, submittal of information, or any other actions.

(7) Temporary standards may be implemented only after a public hearing before the commission, commission approval and adoption pursuant to Subsection H of 20.6.4.10 NMAC for all state purposes, and the federal Clean Water Act Section 303 (c) approval for any federal action.

(8) All temporary standards are subject to a required review during each succeeding review of water quality standards conducted in accordance with Subsection A of 20.6.4.10 NMAC. The petitioner shall provide a written report to the commission documenting the progress of proposed actions, pursuant to a reporting schedule stipulated in the approved temporary standard. The purpose of the review is to determine progress consistent with the original conditions of the petition for the duration of the temporary standard. If the petitioner cannot demonstrate that sufficient progress has been made the commission may revoke approval of the temporary standard or provide additional conditions to the approval of the temporary standard.

(9) The commission may consider a petition to extend a temporary standard. The effective period of a temporary standard shall be extended only if demonstrated to the commission that the factors precluding attainment of the underlying standard still apply, that the petitioner is meeting the conditions required for approval of the temporary standard, and that reasonable progress towards meeting the underlying standard is being achieved.

(10) A temporary standard shall expire no later than the date specified in the approval of the temporary standard. Upon expiration of a temporary standard, the original standard becomes applicable.

(11) Temporary standards shall be identified in 20.6.4.97-899 NMAC as appropriate for the surface water affected.

(12) "Temporary standard" means a time-limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition during the term of the temporary standard.

N.M. Admin. Code § 20.6.4.10

20.6.4.10 NMAC - Rp 20 NMAC 6.1.1102, 10-12-00; Rn, 20.6.4.9 NMAC, 05-23-05; A, 05-23-05; A, 12-01-10, Amended by New Mexico Register, Volume XXVIII, Issue 02, January 31, 2017, eff. 3/2/2017, Amended by New Mexico Register, Volume XXXIII, Issue 07, April 5, 2022, eff. 4/23/2022