N.M. Admin. Code § 20.6.4.15

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

Section 20.6.4.15 - USE ATTAINABILITY ANALYSIS

A.Regulatory requirements for a use attainability analysis. Whenever a use attainability analysis is conducted, it shall be subject to the requirements and limitations set forth in 40 CFR Part 131, Water Quality Standards; specifically, Subsections 131.3(g), 131.10(g), 131.10(h) and 131.10(j) shall be applicable. In accordance with 40 CFR 131.10(i), and 20.6.4.10 NMAC, the amendment of a designated use, based on an existing use with more stringent criteria, does not require a use attainability analysis.

(1) The commission may remove a designated use, that is not an existing use, specified in Section 101(a)(2) of the federal Clean Water Act or adopt subcategories of a use in Section 101(a)(2) of the federal Clean Water Act requiring less stringent criteria only if a use attainability analysis demonstrates that attaining the use is not feasible because of a factor listed in 40 CFR 131.10(g). Uses in Section 101(a)(2) of the federal Clean Water Act, which refer to the protection and propagation of fish, shellfish and wildlife and recreation in and on the water, are also specified in Subsection B of 20.6.4.6 NMAC.

(2) A designated use cannot be removed if it is an existing use unless a use requiring more stringent criteria is designated.

B.Methods for developing a use attainability analysis. A use attainability analysis shall assess the physical, chemical, biological, economic or other factors affecting the attainment of a use. The analysis shall rely on scientifically defensible methods such as the methods described in the following documents:

(1)Technical Support Manual: Waterbody Surveys And Assessments For Conducting Use Attainability Analyses, volume I (November 1983) and volume III (November 1984) or latest editions, United States environmental protection agency, office of water, regulations and standards, Washington, D.C., for the evaluation of aquatic life or wildlife uses;

(2) the department's Hydrology Protocol, latest edition, approved by the commission, for identifying ephemeral, intermittent, and perennial waters; or

(3)Interim Economic Guidance For Water Quality Standards - Workbook, March 1995, United States environmental protection agency, office of water, Washington, D.C. for evaluating economic impacts.

C.Determining the highest attainable use. If the use attainability analysis determines that the designated use is not attainable based on one of the factors in 40 CFR 131.10(g), the use attainability analysis shall demonstrate the support for removing the designated use and then determine the highest attainable use, as defined in 40 CFR 131.3(m), for the protection and propagation of fish, shellfish and wildlife and recreation in and on the water based on methods described in Subsection B of this section.

D.Process to amend a designated use through a use attainability analysis.

(1) The process for developing a use attainability analysis and petitioning the commission for removing a designated use and establishing the highest attainable use shall be done in accordance with the State's current Water Quality Management Plan/Continuing Planning Process.

(2) If the findings of a use attainability analysis, conducted by the department, in accordance with the department's Hydrology Protocol (latest edition) demonstrates that federal Clean Water Act Section 101(a)(2) uses, that are not existing uses, are not feasible in an ephemeral water body due to the factor in 40 CFR 131.10(g)(2), the department may consider proceeding with the expedited use attainability analysis process in accordance with the State's current Water Quality Management Plan/Continuing Planning Process. The following elements must be met for the expedited use attainability analysis process to be authorized and implemented:

(a) The department is the primary investigator of the use attainability analysis;

(b) The use attainability analysis determined, through the application of the Hydrology Protocol, that the water being investigated is ephemeral and has no effluent discharges of sufficient volume that could compensate for the low-flow;

(c) The use attainability analysis determined that the criteria associated with the existing uses of the water being investigated are not more stringent than those in 20.6.4.97 NMAC;

(d) The designated uses in 20.6.4.97 NMAC have been determined to be the highest attainable uses for the water being analyzed;

(e) The department posted the use attainability analysis on its water quality standards website and notified its interested parties list of a 30-day public comment period ;

(f) The department reviewed and responded to any comments received during the 30-day public comment period; and

(g) The department submitted the use attainability analysis and response to comments to region 6 EPA for technical approval.

If EPA approves the revision under section 303(c) of the Clean Water Act, the water shall be subject to 20.6.4.97 NMAC for federal Clean Water Act purposes. The use attainability analysis, the technical support document, and the applicability of 20.6.4.97 NMAC to the water shall be posted on the department's water quality standards website. The department shall periodically petition the commission to list ephemeral waters under Subsection C of 20.6.4.97 NMAC and to incorporate changes to classified segments as appropriate.

E.Use attainability analysis conducted by an entity other than the department. Any person may submit notice to the department stating their intent to conduct a use attainability analysis.

(1) The proponent shall provide such notice along with a work plan supporting the development of a use attainability analysis to the department and region 6 EPA for review and comment.

(2) Upon approval of the work plan by the department, the proponent shall conduct the use attainability analysis in accordance with the applicable portions of Subsections A through D of this Section and implement public noticing in accordance with the approved work plan.

(3) Work plan elements. The work plan shall identify, at a minimum:

(a) the waterbody of concern and the reasoning for conducting a use attainability analysis;

(b) the source and validity of data to be used to demonstrate whether the current designated use is not attainable;

(c) the factors in 40 CFR 131.10(g) affecting the attainment of that use;

(d) a description of the data being proposed to be used to demonstrate the highest attainable use;

(e) the provisions for consultation with appropriate state and federal agencies;

(f) a description of how stakeholders and potentially affected tribes will be identified and engaged;

(g) a description of the public notice mechanisms to be employed; and

(h) the expected timelines outlining the administrative actions to be taken for a rulemaking petition, pending the outcome of the use attainability analysis.

(4) Upon completion of the use attainability analysis, the proponent shall submit the data, findings and conclusions to the department, and provide public notice of the use attainability analysis in accordance with the approved work plan.

(5) Pending the conclusions of the use attainability analysis and as described in the approved work plan, the department or the proponent may petition the commission to modify the designated use. The cost of such use attainability analysis shall be the responsibility of the proponent. Subsequent costs associated with the administrative rulemaking process shall be the responsibility of the petitioner.

N.M. Admin. Code § 20.6.4.15

20.6.4.15 NMAC - Rp 20 NMAC 6.1.1107, 10-12-00; Rn, 20.6.4.14 NMAC, 05-23-05; A, 05-23-05; A, 07-17-05; A, 12-01-10, Amended by New Mexico Register, Volume XXXIII, Issue 07, April 5, 2022, eff. 4/23/2022