N.M. Admin. Code § 20.6.4.16

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

Section 20.6.4.16 - PLANNED USE OF A PISCICIDE

The use of a piscicide registered under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. Section 136et seq., and under the New Mexico Pesticide Control Act (NMPCA), Section 76-4 -1 et seq. NMSA 1978 (1973) in a surface water of the state, shall not be a violation of Subsection F of 20.6.4.13 NMAC when such use is covered by a federal national pollutant discharge elimination system (NPDES) permit or has been approved by the commission under procedures provided in this section. The use of a piscicide which is covered by a NPDES permit shall require no further review by the commission and the person whose application is covered by the NPDES permit shall meet the additional notification and monitoring requirements outlined in Subsection G of 20.6.4.16 NMAC. The commission may approve the reasonable use of a piscicide under this section if the proposed use is not covered by a NPDES permit to further a Clean Water Act objective to restore and maintain the physical or biological integrity of surface waters of the state, including restoration of native species.

A. Any person seeking commission approval of the use of a piscicide not covered by a NPDES permit shall file a written petition concurrently with the commission and the surface water bureau of the department. The petition shall contain, at a minimum, the following information:

(1) petitioner's name and address;

(2) identity of the piscicide and the period of time (not to exceed five years) or number of applications for which approval is requested;

(3) documentation of registration under FIFRA and NMPCA and certification that the petitioner intends to use the piscicide according to the label directions, for its intended function;

(4) target and potential non-target species in the treated waters and adjacent riparian area, including threatened or endangered species;

(5) potential environmental consequences to the treated waters and the adjacent riparian area, and protocols for limiting such impacts;

(6) surface water of the state proposed for treatment;

(7) results of pre-treatment survey;

(8) evaluation of available alternatives and justification for selecting piscicide use;

(9) documentation of notice requesting public comment on the proposed use within a 30-day period, including information as described in Paragraphs (1), (2) and (6) of Subsection A of 20.6.4.16 NMAC, provided to:

(a) local political subdivisions;

(b) local water planning entities;

(c) local conservancy and irrigation districts; and

(d) local media outlets, except that the petitioner shall only be required to publish notice in a newspaper of circulation in the locality affected by the proposed use.

(10) copies of public comments received in response to the publication of notice and the petitioner's responses to public comments received;

(11) post-treatment assessment monitoring protocol; and

(12) any other information required by the commission.

B. Within 30 days of receipt of the petition, the department shall review the petition and file a recommendation with the commission to grant, grant with conditions or deny the petition. The recommendation shall include reasons, and a copy shall be sent to the petitioner by certified mail.

C. The commission shall review the petition, the public comments received under Paragraphs (9) and (10) of Subsection A of 20.6.4.16 NMAC, the petitioner's responses to public comments and the department's technical recommendations for the petition. A public hearing shall be held if the commission determines there is substantial public interest. The commission shall notify the petitioner and those commenting on the petition of the decision whether to hold a hearing and the reasons therefore in writing.

D. If the commission determines there is substantial public interest a public hearing shall be held within 90 days of receipt of the department's recommendation in the locality affected by the proposed use in accordance with 20.1.3 NMAC, Adjudicatory Procedures - Water Quality Control Commission. Notice of the hearing shall be given in writing by the petitioner to individuals listed under Subsection A of 20.6.4.16 NMAC as well as to individuals who provided public comment under that subsection at least 30 days prior to the hearing.

E. In a hearing provided for in this section or, if no hearing is held, in a commission meeting, the registration of a piscicide under FIFRA and NMPCA shall provide a rebuttable presumption that the determinations of the EPA Administrator in registering the piscicide, as outlined in 7 U.S.C. Section 136a(c)(5), are valid. For purposes of this Section the rebuttable presumptions regarding the piscicide include:

(1) Its composition is such as to warrant the proposed claims for it;

(2) Its labeling and other material submitted for registration comply with the requirements of FIFRA and NMPCA;

(3) It will perform its intended function without unreasonable adverse effects on the environment; and

(4) When used in accordance with all FIFRA label requirements it will not generally cause unreasonable adverse effects on the environment.

(5) "Unreasonable adverse effects on the environment" has the meaning provided in FIFRA, 7 U.S.C. Section 136(bb): "any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide."

F. After a public hearing, or commission meeting if no hearing is held, the commission may grant the petition in whole or in part, may grant the petition subject to conditions, or may deny the petition. In granting any petition in whole or part or subject to conditions, the commission shall require the petitioner to implement post-treatment assessment monitoring and provide notice to the public in the immediate and near downstream vicinity of the application prior to and during the application.

G. Any person whose application is covered by a NPDES permit shall provide written notice to local entities as described in Subsection A of 20.6.4.16 NMAC and implement post-treatment assessment monitoring within the application area as described in Subsection F of 20.6.4.16 NMAC.

N.M. Admin. Code § 20.6.4.16

20.6.4.16 NMAC - Rn, Paragraph (6) of Subsection F of 20.6.4.12 NMAC, 05-23-05; A, 05-23-05, Amended by New Mexico Register, Volume XXVIII, Issue 02, January 31, 2017, eff. 3/2/2017