SJC/SB 21
Page 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
AN ACT
RELATING TO THE ENVIRONMENT; ALPHABETIZING AND ADDING
DEFINITIONS TO THE WATER QUALITY ACT; PROVIDING FOR CERTAIN
WATER QUALITY CONTROL COMMISSION RULES RELATING TO THE
REGULATION OF WATER POLLUTION; CREATING THE NEGLECTED AND
CONTAMINATED SITES FUND; PROVIDING FOR GENERAL PERMIT
COVERAGE FOR MULTIPLE DISCHARGERS; REVISING THE WATER QUALITY
MANAGEMENT FUND; ALLOWING FOR THE DENIAL OF PERMITS THAT
WOULD CONTRIBUTE TO WATER CONTAMINANT LEVELS IN EXCESS OF
DOWNSTREAM STATE OR TRIBAL WATER QUALITY STANDARDS; AMENDING
NOTICE REQUIREMENTS FOR WATER QUALITY ACT PERMITS; PROVIDING
FOR CERTAIN USES OF PERMIT FEES; AMENDING THE PURPOSES OF THE
WATER QUALITY MANAGEMENT FUND; CREATING CERTAIN EXCEPTIONS
FOR SURFACE WATER DISCHARGES; ADDRESSING POTENTIAL LIABILITY;
ENACTING THE NEW MEXICO POLLUTANT DISCHARGE ELIMINATION
SYSTEM ACT; REQUIRING PERMITS FOR DISCHARGES INTO WATERS OF
THE UNITED STATES; REQUIRING THE WATER QUALITY CONTROL
COMMISSION TO ADOPT RULES TO IMPLEMENT THE DISCHARGE PROGRAM;
PROVIDING POWERS AND DUTIES OF THE DEPARTMENT OF ENVIRONMENT;
PROVIDING FOR ENFORCEMENT OF THE PROGRAM; PROVIDING
PENALTIES; PROVIDING FOR APPEALS TO THE WATER QUALITY CONTROL
COMMISSION AND THE COURT OF APPEALS; PROVIDING FOR PUBLICLY
ACCESSIBLE RECORDS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: SJC/SB 21
Page 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SECTION 1. Section 74-6-2 NMSA 1978 (being Laws 1967,
Chapter 190, Section 2, as amended) is amended to read:
"74-6-2. DEFINITIONS.--As used in the Water Quality
Act:
A. "abatement costs" means costs incurred in
accordance with an abatement plan prepared and approved in
accordance with rules adopted by the commission;
B. "aquatic resources" means wetlands, streams,
lakes, rivers and other bodies of water, riparian habitats
and the organisms that live in them and the ecological
functions, services and values they provide;
C. "barrier" means a technical, including any log
reduction credits assigned, operational or managerial measure
to control microbial or chemical constituents;
D. "commission" means the water quality control
commission;
E. "constituent agency" means, as the context may
require, any or all of the following agencies of the state:
(1) the department;
(2) the state engineer and the interstate
stream commission;
(3) the department of game and fish;
(4) the oil conservation commission;
(5) the state parks division of the energy,
minerals and natural resources department; SJC/SB 21
Page 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(6) the New Mexico department of
agriculture;
(7) the soil and water conservation
commission; and
(8) the bureau of geology and mineral
resources at the New Mexico institute of mining and
technology;
F. "compensatory mitigation" means the process of
restoring, establishing, enhancing or preserving wetlands,
streams or other aquatic resources to offset unavoidable
adverse impacts that remain after appropriate and practicable
avoidance and minimization measures have been achieved;
G. "department" means the department of
environment;
H. "dredged material" means material that is
excavated or dredged from a surface water;
I. "facility" means all contiguous land and
structures, other appurtenances and improvements on the land,
including any building, installation, equipment, pipe or
pipeline, including a pipe into a sewer or a publicly owned
treatment works, a well, a pit, a pond, a lagoon, an
impoundment, a ditch, a landfill, a storage container, a
motor vehicle, a rolling stock, an aircraft, a vessel or a
watercraft, or any site or area where a water contaminant has
been, is currently or is proposed to be managed, treated, SJC/SB 21
Page 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
deposited, stored, disposed of or placed or has otherwise
come to be located;
J. "federal act" means the Federal Water Pollution
Control Act and its subsequent amendment and successor
provisions;
K. "fill material" means material that is placed
in a surface water where the material has the effect of
replacing any portion of a surface water with dry land or
changing the bottom elevation of a surface water; "fill
material" does not include trash, garbage or incidental
fallback resulting from excavation activities when small
volumes of material fall back to substantially the same place
as the initial removal;
L. "general permit" means a permit that applies to
one or more categories or subcategories of discharges, sludge
use or disposal practices or facilities within a geographic
area, including the state or a region, basin or watershed in
the state;
M. "general permit coverage" means authorization
to discharge pursuant to a general permit and any additional
permit conditions required by a constituent agency;
N. "gray water" means untreated household
wastewater that has not come in contact with toilet waste and
includes wastewater from bathtubs, showers, washbasins,
clothes washing machines and laundry tubs, but does not SJC/SB 21
Page 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
include wastewater from kitchen sinks or dishwashers or
laundry water from the washing of material soiled with human
excreta, such as diapers;
O. "new source" means:
(1) any source, the construction of which is
commenced after the publication of proposed rules prescribing
a standard of performance applicable to the source; or
(2) an existing source when modified to
treat substantial additional volumes or when there is a
substantial change in the character of water contaminants
treated;
P. "pathogen" means a microorganism capable of
causing illness in humans;
Q. "person" means an individual or other entity,
including partnerships, corporations, associations,
responsible business or association agents or officers, the
state or a political subdivision of the state or an agency, a
department or an instrumentality of the United States and any
of its officers, agents or employees;
R. "point source" means a discernable, confined
and discrete conveyance, including a pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, landfill
leachate collection system or vessel or other floating craft
from which water contaminants are or may be discharged; SJC/SB 21
Page 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
"point source" does not include a discharge composed entirely
of return flows from irrigated agriculture or agricultural
storm water runoff;
S. "produced water" means a fluid that is an
incidental byproduct from drilling for or the production of
oil and gas;
T. "responsible party" means:
(1) the owner and operator of a facility;
(2) a person who, at the time of disposal of
any water contaminant, owned or operated a facility at or
from which such water contaminants were disposed;
(3) a person who, by contract, agreement or
otherwise, arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or treatment,
of water contaminants owned or possessed by the person, or by
any other party or entity, at a facility owned or operated by
another party or entity and containing such water
contaminants; and
(4) a person who accepts or accepted any
water contaminants for transport to disposal or treatment
facilities or sites selected by the person, from which there
is a release, or a threatened release that causes the
incurrence of response costs, of a water contaminant;
U. "septage" means the residual wastes and water
periodically pumped from a liquid waste treatment unit or SJC/SB 21
Page 7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
holding tank for maintenance or disposal purposes;
V. "sewer system" means pipelines, conduits,
pumping stations, force mains or other structures, devices,
appurtenances or facilities used for collecting or conducting
wastes to an ultimate point for treatment or disposal;
W. "sewerage system" means a system for disposing
of wastes, either by surface or underground methods, and
includes sewer systems, treatment works, disposal wells and
other systems;
X. "sludge" means solid, semi-solid or liquid
waste generated from a municipal, a commercial or an
industrial wastewater treatment plant, a water supply
treatment plant or an air pollution control facility that is
associated with the treatment of these wastes. "Sludge" does
not mean treated effluent from a wastewater treatment plant;
Y. "source" means a building, a structure, a
facility or an installation from which there is or may be a
discharge of water contaminants directly or indirectly into
water;
Z. "standards of performance" means a standard, an
effluent limitation or an effluent standard adopted pursuant
to the federal act or the Water Quality Act;
AA. "substantial adverse environmental impact"
means that an act or omission of the violator causes harm or
damage: SJC/SB 21
Page 8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(1) to human beings; or
(2) that amounts to more than ten thousand
dollars ($10,000) in damage or mitigation costs to flora,
including agriculture crops; fish or other aquatic life;
waterfowl or other birds; livestock; or wildlife or damage to
their habitats, ground water or surface water or the lands of
the state;
BB. "surface water discharge" means:
(1) the addition of a water contaminant or
combination of water contaminants to a surface water from a
point source, including surface runoff collected or channeled
by human effort, discharges through pipes, sewers or other
conveyances owned by the state, a municipality or another
person that do not lead to a treatment works and discharges
through pipes, sewers or other conveyances leading into
privately owned treatment works, but does not include the
addition of water contaminants from an indirect discharger;
or
(2) the addition of dredged or fill material
into a surface water from excavation of a surface water or
from filling in a surface water in a manner that replaces the
surface water with dry land or changes the bottom elevation
of the surface water but does not include incidental
fallback;
CC. "treatment works" means a plant or other works SJC/SB 21
Page 9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
used for the purpose of treating, stabilizing or holding
wastes;
DD. "wastes" means sewage, industrial wastes or
other liquid, gaseous or solid substances that may pollute
the waters of the state;
EE. "water" means all water, including water
situated wholly or partly within or bordering upon the state,
whether surface or subsurface, public or private, except
private waters that do not combine with other surface or
subsurface water;
FF. "water contaminant" means a substance that
could alter, if discharged or spilled, the physical,
chemical, biological or radiological qualities of water.
"Water contaminant" does not mean source, special nuclear or
byproduct material as defined by the federal Atomic Energy
Act of 1954; and
GG. "water pollution" means introducing or
permitting the introduction into water, either directly or
indirectly, of one or more water contaminants in a quantity
and duration as may with reasonable probability injure human
health, animal or plant life or property or to unreasonably
interfere with the public welfare or the use of property."
SECTION 2. Section 74-6-4 NMSA 1978 (being Laws 1967,
Chapter 190, Section 4, as amended) is amended to read:
"74-6-4. DUTIES AND POWERS OF COMMISSION.--The SJC/SB 21
Page 10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
commission:
A. may accept and supervise the administration of
loans and grants from the federal government and from other
sources, public or private, which loans and grants shall not
be expended for purposes other than those provided;
B. shall adopt a comprehensive water quality
management program and develop a continuing planning process;
C. shall not adopt or promulgate a standard or
rule that exceeds a grant of rulemaking authority listed in
the statutory section of the Water Quality Act authorizing
the standard or rule;
D. shall adopt water quality standards for surface
and ground waters of the state based on credible scientific
data and other evidence appropriate under the Water Quality
Act. The standards shall include narrative standards and, as
appropriate, the designated uses of the waters and the water
quality criteria necessary to protect such uses. The
standards shall at a minimum protect the public health or
welfare, enhance the quality of water and serve the purposes
of the Water Quality Act. In making standards, the
commission shall give weight it deems appropriate to all
facts and circumstances, including the use and value of the
water for water supplies, propagation of fish and wildlife,
recreational purposes and agricultural, industrial and other
purposes; SJC/SB 21
Page 11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
E. shall adopt rules to prevent or abate water
pollution in the state or in any specific geographic area,
aquifer or watershed of the state or in any part thereof, or
for any class of waters, and to govern the disposal of
septage and sludge and the use of sludge for various
beneficial purposes. The rules governing the disposal of
septage and sludge may include the use of tracking and
permitting systems or other reasonable means necessary to
assure that septage and sludge are designated for disposal
in, and arrive at, disposal facilities, other than facilities
on the premises where the septage and sludge is generated,
for which a permit or other authorization has been issued
pursuant to the federal act or the Water Quality Act. Rules
may specify a standard of performance for new sources that
reflects the greatest reduction in the concentration of water
contaminants that the commission determines to be achievable
through application of the best available demonstrated
control technology, processes, operating methods or other
alternatives, including where practicable a standard
permitting no discharge of pollutants;
F. in making rules, shall give weight it deems
appropriate to all relevant facts and circumstances,
including:
(1) the character and degree of injury to or
interference with health, welfare, environment and property; SJC/SB 21
Page 12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) the public interest, including the
social and economic value of the sources of water
contaminants;
(3) the technical practicability and
economic reasonableness of reducing or eliminating water
contaminants from the sources involved and previous
experience with equipment and methods available to control
the water contaminants involved;
(4) the successive uses, including domestic,
commercial, industrial, pastoral, agricultural, wildlife and
recreational uses;
(5) feasibility of a user or a subsequent
user treating the water before a subsequent use;
(6) property rights and accustomed uses; and
(7) federal water quality requirements;
G. shall assign responsibility for administering
its rules to constituent agencies to assure adequate coverage
and prevent duplication of effort. To this end, the
commission may make such classification of waters and sources
of water contaminants as will facilitate the assignment of
administrative responsibilities to constituent agencies. The
commission shall also hear and decide disputes between
constituent agencies as to jurisdiction concerning matters
within the purpose of the Water Quality Act. In assigning
responsibilities to constituent agencies, the commission SJC/SB 21
Page 13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
shall give priority to the primary interests of the
constituent agencies. The department shall provide technical
services, including certification of permits pursuant to the
federal act, and shall maintain a repository of the
scientific data required by the Water Quality Act;
H. may enter into or authorize constituent
agencies to enter into agreements with the federal government
or other state governments for purposes consistent with the
Water Quality Act and receive and allocate to constituent
agencies funds made available to the commission;
I. may grant an individual variance from a rule of
the commission whenever it is found that compliance with the
rule will impose an unreasonable burden upon any lawful
business, occupation or activity. The commission may only
grant a variance conditioned upon a person effecting a
particular abatement of water pollution within a reasonable
period of time. A variance shall be granted for the period
of time specified by the commission. The commission shall
adopt rules specifying the procedure under which variances
may be sought, which rules shall provide for the holding of a
public hearing before a variance may be granted;
J. may adopt rules to require the filing with the
commission or a constituent agency of proposed plans and
specifications for the construction and operation of new
sewer systems, treatment works or sewerage systems or SJC/SB 21
Page 14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
extensions, modifications of or additions to new or existing
sewer systems, treatment works or sewerage systems. Filing
with and approval by the federal housing administration of
plans for an extension to an existing or construction of a
new sewerage system intended to serve a subdivision solely
residential in nature shall be deemed compliance with all
provisions of this subsection;
K. may adopt rules requiring notice to the
commission or a constituent agency of intent to introduce or
allow the introduction of water contaminants into waters of
the state;
L. shall specify in rules the measures to be taken
to prevent water pollution and to monitor water quality. The
commission may adopt rules for particular industries. The
commission shall adopt rules for the dairy industry and the
copper industry. The commission shall consider, in addition
to the factors listed in Subsection F of this section, the
best available scientific information. The rules may include
variations in requirements based on site-specific factors,
such as depth and distance to ground water and geological and
hydrological conditions. The constituent agency shall
establish an advisory committee composed of persons with
knowledge and expertise particular to the industry category
and other interested stakeholders to advise the constituent
agency on appropriate rules to be proposed for adoption by SJC/SB 21
Page 15
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the commission. The rules shall be developed and adopted in
accordance with a schedule approved by the commission. The
schedule shall incorporate an opportunity for public input
and stakeholder negotiations;
M. may adopt rules establishing pretreatment
standards that prohibit or control the introduction into
publicly owned sewerage systems of water contaminants that
are not susceptible to treatment by the treatment works or
that would interfere with the operation of the treatment
works;
N. shall not require a permit respecting the use
of water in irrigated agriculture, except in the case of the
employment of a specific practice in connection with the
irrigation that documentation or actual case history has
shown to be hazardous to public health or the environment or
for the use of produced water;
O. shall not require a permit for applying less
than two hundred fifty gallons per day of private residential
gray water originating from a residence for the resident's
household gardening, composting or landscape irrigation if:
(1) a constructed gray water distribution
system provides for overflow into the sewer system or on-site
wastewater treatment and disposal system;
(2) a gray water storage tank is covered to
restrict access and to eliminate habitat for mosquitos or SJC/SB 21
Page 16
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
other vectors;
(3) a gray water system is sited outside of
a floodway;
(4) gray water is vertically separated at
least five feet above the ground water table;
(5) gray water pressure piping is clearly
identified as a nonpotable water conduit;
(6) gray water is used on the site where it
is generated and does not run off the property lines;
(7) gray water is applied in a manner that
minimizes the potential for contact with people or domestic
pets;
(8) ponding is prohibited, application of
gray water is managed to minimize standing water on the
surface and to ensure that the hydraulic capacity of the soil
is not exceeded;
(9) gray water is not sprayed;
(10) gray water is not discharged to a
watercourse; and
(11) gray water use within municipalities or
counties complies with all applicable municipal or county
ordinances enacted pursuant to Chapter 3, Article 53
NMSA 1978;
P. shall coordinate application procedures and
funding cycles for loans and grants from the federal SJC/SB 21
Page 17
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
government and from other sources, public or private, with
the local government division of the department of finance
and administration pursuant to the New Mexico Community
Assistance Act;
Q. shall adopt rules to be administered by the
department for the discharge, handling, transport, storage,
recycling or treatment for the disposition of treated
produced water, including disposition in road construction
maintenance, roadway ice or dust control or other
construction, or in the application of treated produced water
to land, for activities unrelated to the exploration,
drilling, production, treatment or refinement of oil or gas;
R. shall adopt rules to be administered by the
department for surface water discharges, including:
(1) for discharges from point sources, the
rules shall not require a permit for a point source discharge
for which a permit is issued under Section 402 of the federal
Clean Water Act or the New Mexico Pollutant Discharge
Elimination System Act; provided that in adopting rules
related to this paragraph, in addition to the factors to be
considered under Subsection F of this section, the commission
may:
(a) identify exemptions from a
discharge permit requirement when water contaminants in
discharges are subject to effective and enforceable water SJC/SB 21
Page 18
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
quality requirements in a state or federally issued permit,
unless there is a hazard to public health or the environment
that may result or an applicable state water quality standard
will not be achieved; and
(b) consider requirements for permits
and general permits that are consistent with the requirements
of similar permits issued under Section 402 of the federal
Clean Water Act; and
(2) for discharges of dredged or fill
material, the rules shall not require a permit for discharges
of dredged or filled materials for which a permit or
authorization is issued under Section 404 of the federal
Clean Water Act; provided that the rules shall include
avoidance and minimization to the maximum extent practicable
of adverse impacts to wetlands, streams and other aquatic
resources and may require compensatory mitigation for
unavoidable adverse impacts that remain after appropriate and
practicable avoidance and minimization measures have been
achieved; and provided further that in adopting rules related
to this paragraph, in addition to the factors to be
considered under Subsection F of this section, the commission
may:
(a) identify exemptions from a
discharge permit requirement when a discharge is subject to
effective and enforceable water quality requirements in a SJC/SB 21
Page 19
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
state or federally issued permit, unless there is a hazard to
public health or the environment that may result or an
applicable state water quality standard will not be achieved;
and
(b) consider the requirements for
permits and general permits that are consistent with the
requirements of similar permits issued under Section 404 of
the federal Clean Water Act;
S. may adopt rules to be administered by the
department for the state to respond to, investigate and
remediate water pollution and contamination in soil and soil
vapor for the protection of human health and the environment;
and
T. shall adopt rules to be administered by the
department to govern the transfer and use of treated domestic
wastewater for potable reuse. The rules may specify a
standard of performance, including log reduction for pathogen
removal, critical control points, barriers and the greatest
reduction in the concentration of water contaminants and
pathogens that the commission determines to be achievable
through application of the best available demonstrated
control technology, processes, operating methods or other
alternatives, including, where practicable, a standard
permitting no risk to human health. The rules governing the
potable reuse of domestic wastewater may include the use of SJC/SB 21
Page 20
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
existing permitting systems or create new permitting rules
that include the means necessary to assure that potable reuse
projects are conducted in a manner that is directly
protective of human health."
SECTION 3. Section 74-6-5 NMSA 1978 (being Laws 1973,
Chapter 326, Section 4, as amended) is amended to read:
"74-6-5. PERMITS--CERTIFICATION--APPEALS TO
COMMISSION.--
A. By rule, the commission may require a person to
obtain from a constituent agency designated by the commission
a permit or general permit coverage for the discharge of a
water contaminant or for the disposal or reuse of septage or
sludge.
B. The commission shall adopt rules establishing
procedures for certifying federal water quality permits.
C. Prior to the issuance of a permit or approval
of general permit coverage, the constituent agency may
require the submission of plans, specifications and other
relevant information that it deems necessary.
D. The commission shall by rule set the dates upon
which applications for permits shall be filed and designate
the time periods within which the constituent agency shall,
after the filing of an administratively complete application
for a permit, either grant the permit, grant the permit
subject to conditions or deny the permit. The constituent SJC/SB 21
Page 21
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
agency has the burden of showing that each condition is
reasonable and necessary to ensure compliance with the Water
Quality Act and applicable rules, considering site-specific
conditions. After rules have been adopted for a particular
industry, permits for facilities in that industry shall be
subject to conditions contained in the rules. Additional
conditions on a final permit may be imposed if the applicant
is provided with an opportunity to review and provide
comments in writing on the draft permit conditions and to
receive a written explanation of the reasons for the
conditions from the constituent agency.
E. The constituent agency shall deny an
application for a permit or request for general permit
coverage or deny the certification of a federal water quality
permit if:
(1) the effluent would not meet applicable
state or federal effluent regulations, standards of
performance or limitations;
(2) a provision of the Water Quality Act
would be violated;
(3) the discharge would cause or contribute
to water contaminant levels in excess of a state or federal
standard. Determination of the discharge's effect on ground
water shall be measured at a place of withdrawal of water for
present or reasonably foreseeable future use. Determination SJC/SB 21
Page 22
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of the discharge's effect on surface waters shall be measured
at the point of discharge;
(4) the surface water discharge would cause
or contribute to water contaminant levels in excess of a
downstream state or tribal water quality standard; or
(5) the applicant has, within the ten years
immediately preceding the date of submission of the permit
application or request for general permit coverage:
(a) knowingly misrepresented a material
fact in an application for a permit or request for general
permit coverage;
(b) refused or failed to disclose
information required pursuant to the Water Quality Act;
(c) been convicted of a felony or other
crime involving moral turpitude;
(d) been convicted of a felony in court
for a crime defined by state or federal law as being a
restraint of trade, price-fixing, bribery or fraud;
(e) exhibited a history of willful
disregard for environmental laws of a state or the United
States; or
(f) had an environmental permit revoked
or permanently suspended for cause under environmental laws
of a state or the United States.
F. For ground water discharge permits, the SJC/SB 21
Page 23
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
commission shall by rule develop procedures that ensure that
the public and affected governmental agencies, Indian
nations, tribes and pueblos and other states shall receive
notice of each application and draft of a new permit, a
modification of a permit or a renewal of a permit. Public
notice shall include:
(1) for issuance of new permits or permit
modifications:
(a) notice to adjacent and nearby
landowners using postal or electronic mail;
(b) notice to affected local, state and
federal government agencies, land grant organizations, ditch
associations and Indian nations, tribes and pueblos using
postal or electronic mail;
(c) posting the notice at a place
conspicuous to the public and near the discharge or proposed
discharge site;
(d) a display advertisement in English
and Spanish in a newspaper of general circulation in the
location of the discharge or proposed discharge site;
provided, however, that the advertisement shall not be
displayed in the classified or legal advertisement sections;
and
(e) consideration of the languages
spoken by and the communication methods accessible to the SJC/SB 21
Page 24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
intended recipients of the public notice; and
(2) for permit renewals:
(a) notice by postal or electronic mail
to the interested public;
(b) notice to affected local, state and
federal government agencies, land grant organizations, ditch
associations and Indian nations, tribes and pueblos;
(c) a display advertisement in English
and Spanish in a newspaper of general circulation in the
location of the discharge site; provided, however, that the
advertisement shall not be displayed in the classified or
legal advertisement sections; and
(d) consideration of the languages
spoken by and the communication methods accessible to the
intended recipients of the public notice.
G. For surface water discharge permits, the
commission shall by rule develop procedures that ensure that
the public and affected governmental agencies, Indian
nations, tribes and pueblos and other states shall receive
notice of each draft permit. Public notice shall include the
following, except that for a general permit, Paragraphs (1)
and (3) of this subsection shall not be required:
(1) notice to adjacent and nearby landowners
using postal or electronic mail;
(2) notice to affected local, state and SJC/SB 21
Page 25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
federal government agencies, land grant organizations, ditch
associations and Indian nations, tribes and pueblos using
postal or electronic mail;
(3) for new surface water discharge permits
or permit modifications, posting at a place conspicuous to
the public and near the discharge or proposed discharge site;
(4) notice to the general public and others
whom the commission deems appropriate using one or more
reasonable and appropriate methods, such as electronic mail
to persons who have requested notification, social media
posts, radio announcements or advertisements in a newspaper
of general circulation in the location of the discharge or
proposed discharge site; and
(5) consideration of the languages spoken by
and the communication methods accessible to the intended
recipients of the public notice.
H. No ruling shall be made on a draft permit
without opportunity for a public hearing at which all
interested persons shall be given a reasonable chance to
submit evidence, data, views or arguments orally or in
writing and to examine witnesses testifying at the hearing.
The hearing shall be recorded. A person submitting evidence,
data, views or arguments shall be subject to examination at
the hearing.
I. The commission may adopt rules for the SJC/SB 21
Page 26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
operation and maintenance of the permitted facility,
including requirements, as may be necessary or desirable,
that relate to continuity of operation, personnel training
and financial responsibility, including financial
responsibility for corrective action.
J. Permits shall be issued for fixed terms of five
years, except that surface water discharge permits may be
issued for fixed terms of up to ten years. For new
discharges, the term of the permit shall commence on the date
the discharge begins, but in no event shall the term of the
permit exceed seven years from the date the permit was
issued.
K. By rule, the commission may impose reasonable
conditions upon permits requiring permittees to:
(1) install, use and maintain monitoring
devices;
(2) sample effluents and receiving waters
for any known or suspected water contaminants in accordance
with methods and at locations and intervals as may be
prescribed by the commission;
(3) establish and maintain records of the
nature and amounts of effluents and the performance of
effluent control devices;
(4) provide other information relating to
the discharge or direct or indirect release of water SJC/SB 21
Page 27
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
contaminants; and
(5) notify a constituent agency of the
introduction of new water contaminants from a new source and
of a substantial change in volume or character of water
contaminants being introduced from sources in existence at
the time of the issuance of the permit.
L. The commission shall provide by rule a schedule
of fees for permits and approvals of general permit coverage
to support the cost of developing and implementing the
permitting rules authorized pursuant to Section 74-6-4
NMSA 1978, including the review of applications, issuance and
enforcement of permits and rules, compliance assistance,
monitoring and inspection of facilities and discharges, data
stewardship, records management and administrative and legal
costs. Fees collected pursuant to this section shall be
deposited in the water quality management fund.
M. The issuance of a permit or approval of or
request for a general permit coverage does not relieve a
person from the responsibility of complying with the
provisions of the Water Quality Act, any applicable rules or
water quality standards of the commission or any applicable
federal laws, regulations or standards.
N. A permit or general permit coverage may be
terminated or modified by the constituent agency that issued
the permit or approved the general permit coverage prior to SJC/SB 21
Page 28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
its date of expiration for any of the following causes:
(1) violation of a condition of the permit;
(2) obtaining the permit or general permit
coverage by misrepresentation or failure to disclose fully
all relevant facts;
(3) violation of the provisions of the Water
Quality Act or any applicable rules, standard of performance
or water quality standards;
(4) violation of applicable state or federal
effluent regulations or limitations; or
(5) change in a condition that requires
either a temporary or permanent reduction or elimination of
the permitted discharge.
O. If the constituent agency denies, terminates or
modifies a permit or general permit coverage or grants a
permit subject to condition, the constituent agency shall
notify the applicant or permittee by certified mail or other
method acceptable to the applicant or permittee of the action
taken and the reasons. Notice shall also be given by postal
or electronic mail to persons who participated in the
permitting action.
P. A person who participated in a permitting
action before a constituent agency or a person affected by a
certification of a federal permit and who is adversely
affected by the permitting action or certification may file a SJC/SB 21
Page 29
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
petition for review before the commission. Unless a timely
petition for review is made, the decision of the constituent
agency shall be final and not subject to judicial review.
The petition shall:
(1) be made in writing to the commission
within thirty days from the date notice is given of the
constituent agency's action;
(2) include a statement of the issues to be
raised and the relief sought; and
(3) be provided to all other persons
submitting evidence, data, views or arguments in the
proceeding before the constituent agency.
Q. If a timely petition for review is made, the
commission shall consider the petition within ninety days
after receipt of the petition. The commission shall notify
the petitioner and the applicant or permittee, if other than
the petitioner, by certified mail of the date, time and place
of the review. If the petitioner is not the applicant or
permittee, the applicant or permittee shall be a party to the
proceeding. The commission shall ensure that the public
receives notice of the date, time and place of the review.
R. The commission shall review the record compiled
before the constituent agency, including the transcript of a
public hearing held on the application or draft permit, and
shall allow any party to submit arguments. The commission SJC/SB 21
Page 30
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
may designate a hearing officer to review the record and the
arguments of the parties and recommend a decision to the
commission. The commission shall consider and weigh only the
evidence contained in the record before the constituent
agency and the recommended decision of the hearing officer,
if any, and shall not be bound by the factual findings or
legal conclusions of the constituent agency. Based on the
review of the evidence, the arguments of the parties and
recommendations of the hearing officer, the commission shall
sustain, modify or reverse the action of the constituent
agency. The commission shall enter ultimate findings of fact
and conclusions of law and keep a record of the review.
S. Prior to the date set for review, if a party
shows to the satisfaction of the commission that there was no
reasonable opportunity to submit comment or evidence on an
issue being challenged, the commission shall order that
additional comment or evidence be taken by the constituent
agency. Based on the additional evidence, the constituent
agency may revise the decision and shall promptly file with
the commission the additional evidence received and action
taken. The commission shall consider the additional evidence
within ninety days after receipt of the additional evidence
and shall notify the petitioner and the applicant or
permittee, if other than the petitioner, of the date, time
and place of the review. SJC/SB 21
Page 31
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
T. The commission shall notify the petitioner and
all other participants in the review proceeding of the action
taken by the commission and the reasons for that action.
U. The only exemptions from surface water
discharge permits for point sources are:
(1) return flows composed entirely from
irrigated agriculture;
(2) stormwater runoff from a mining
operation or an oil and gas exploration, production,
processing or treatment operation or transmission facility
that is composed entirely of flows that are from conveyances
or systems of conveyances, including pipes, conduits, ditches
and channels, used for collecting and conveying precipitation
runoff and that are not contaminated by contact with, or do
not come into contact with, any overburden, raw material,
intermediate products, finished product, byproduct or waste
product located on the site of the operation or facility;
provided that oil and gas exploration, production, processing
or treatment operations or transmission facilities include
activities necessary to prepare a site for drilling and for
the movement and placement of drilling equipment, whether or
not the field activities or operations may be considered to
be construction activities;
(3) runoff resulting from the following
silviculture activities conducted in accordance with standard SJC/SB 21
Page 32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
industry practice:
(a) nursery operations;
(b) site preparation;
(c) reforestation and subsequent
cultural treatment;
(d) thinning;
(e) prescribed burning;
(f) pest and fire control;
(g) harvesting operations;
(h) surface drainage; and
(i) road construction and maintenance;
and
(4) discharges and water contaminants that
are subject to effective and enforceable surface water
quality requirements in a state or federally issued permit,
unless there is a hazard to public health or the environment
that may result or an applicable state water quality standard
will not be achieved.
V. The only exemptions from surface water
discharge permits for discharges of dredged or fill material
are:
(1) normal farming, silviculture and
ranching activities such as plowing, seeding, cultivating,
minor drainage, harvesting for the production of food, fiber
and forest products or upland soil and water conservation SJC/SB 21
Page 33
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
practices;
(2) maintenance, including emergency
reconstruction of recently damaged parts, of currently
serviceable structures such as dikes, dams, levees, groins,
riprap, breakwaters, causeways and bridge abutments or
approaches and transportation structures;
(3) construction or maintenance of farm or
stock ponds, acequias or irrigation ditches or the
maintenance of drainage ditches;
(4) construction of temporary sedimentation
basins on a construction site that does not include placement
of fill material into the surface waters;
(5) construction or maintenance of farm
roads, forest roads or temporary roads for moving mining
equipment, where such roads are constructed and maintained,
in accordance with best management practices, to assure that:
(a) flow and circulation patterns and
chemical and biological characteristics of the surface waters
are not impaired;
(b) the reach of the surface waters is
not reduced; and
(c) any adverse effect on the aquatic
environment will be otherwise minimized; and
(6) discharges that are subject to effective
and enforceable surface water quality requirements in a SJC/SB 21
Page 34
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
state-issued or federally issued permit, unless there is a
hazard to public health or the environment that may result or
an applicable state water quality standard will not be
achieved.
W. The exemptions provided in Subsection V of this
section shall not apply if the discharge resulting from the
activities contains any toxic pollutant as set forth in rule
by the commission or if a new activity brings a surface water
of the state into farm production where the area of the
surface water has not previously been used for farming."
SECTION 4. Section 74-6-5.2 NMSA 1978 (being Laws 1993,
Chapter 100, Section 4) is amended to read:
"74-6-5.2. WATER QUALITY MANAGEMENT FUND CREATED.--
There is created as a nonreverting fund in the state treasury
the "water quality management fund" to be administered by the
department. The fund consists of appropriations, gifts,
grants, donations and money received by the department. All
fees collected pursuant to Section 74-6-4 NMSA 1978 and for
the operation and maintenance of a permitted facility
pursuant to Subsection I of Section 74-6-5 NMSA 1978 shall be
deposited in the fund. Money in the fund is appropriated to
the department for the purpose of administering the rules
adopted by the commission pursuant to Sections 74-6-4 and
74-6-5 NMSA 1978. Disbursements from the fund shall be made
upon warrants drawn by the secretary of finance and SJC/SB 21
Page 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
administration pursuant to vouchers signed by the secretary
of environment."
SECTION 5. Section 74-6-9 NMSA 1978 (being Laws 1967,
Chapter 190, Section 8, as amended) is amended to read:
"74-6-9. POWERS OF CONSTITUENT AGENCIES.--Each
constituent agency may:
A. receive and expend funds appropriated, donated
or allocated to the constituent agency for purposes
consistent with the Water Quality Act;
B. develop facts and make studies and
investigations and require the production of documents
necessary to carry out the responsibilities assigned to the
constituent agency. The result of any investigation shall be
reduced to writing and a copy furnished to the commission and
to the owner or occupant of the premises investigated;
C. report to the commission and to other
constituent agencies water pollution conditions that are
believed to require action where the circumstances are such
that the responsibility appears to be outside the
responsibility assigned to the agency making the report;
D. respond to, investigate and remediate water
pollution and contamination in soil and soil vapor; provided
that in its investigation, the department shall identify
responsible parties and shall prepare a written report of the
investigation; and provided further that prior to remediation SJC/SB 21
Page 36
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
of water pollution and soil contamination in soil and soil
vapor, the department shall:
(1) prepare a work plan consistent with
rules adopted by the commission;
(2) issue public notice of the work plan;
and
(3) provide opportunities for public comment
and participation in accordance with rules adopted by the
commission;
E. make every reasonable effort to obtain
voluntary cooperation in the prevention or abatement of water
pollution;
F. upon presentation of proper credentials, enter
at reasonable times upon or through any premises in which a
water contaminant source is located or in which are located
any records required to be maintained by regulations of the
federal government or the commission; provided that entry
into any private residence without the permission of the
owner shall be only by order of the district court for the
county in which the residence is located and that, in
connection with any entry provided for in this subsection,
the constituent agency may:
(1) have access to and reproduce for its use
any copy of the records;
(2) inspect any treatment works, monitoring SJC/SB 21
Page 37
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
equipment or methods required to be installed by regulations
of the federal government or the commission; and
(3) sample any effluents, water contaminant
or receiving waters;
G. on the same basis as any other person,
recommend and propose regulations and standards for
promulgation by the commission; and
H. on the same basis as any other person, present
data, views or arguments and examine witnesses and otherwise
participate at all hearings conducted by the commission or
any other administrative agency with responsibility in the
areas of environmental management, public health or consumer
protection, but shall not be given any special status over
any other party; provided that the participation by a
constituent agency in a hearing shall not require the recusal
or disqualification of the commissioner representing that
constituent agency."
SECTION 6. Section 74-6-10 NMSA 1978 (being Laws 1967,
Chapter 190, Section 9, as amended) is amended to read:
"74-6-10. PENALTIES ENFORCEMENT--COMPLIANCE ORDERS--
PENALTIES--ASSURANCE OF DISCONTINUANCE.--
A. Whenever, on the basis of any information, a
constituent agency determines that a person violated or is
violating a requirement, regulation or water quality standard
adopted pursuant to the Water Quality Act or a condition of a SJC/SB 21
Page 38
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
permit issued pursuant to that act, the constituent agency
may:
(1) issue a compliance order requiring
compliance immediately or within a specified time period or
issue a compliance order assessing a civil penalty, or both;
or
(2) commence a civil action in district
court for appropriate relief, including injunctive relief.
B. A compliance order issued pursuant to
Paragraph (1) of Subsection A of this section may include a
suspension or termination of the permit allegedly violated.
C. A compliance order shall state with reasonable
specificity the nature of the violation. Any penalty
assessed in the compliance order shall not exceed:
(1) fifteen thousand dollars ($15,000) per
day of noncompliance with the provisions in Section 74-6-5
NMSA 1978, including a regulation adopted or a permit issued
pursuant to that section; or
(2) ten thousand dollars ($10,000) per day
for each violation of a provision of the Water Quality Act
other than the provisions in Section 74-6-5 NMSA 1978 or of a
regulation or water quality standard adopted pursuant to the
Water Quality Act.
D. In assessing a penalty authorized by this
section, the constituent agency shall take into account the SJC/SB 21
Page 39
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
seriousness of the violation, any good faith efforts to
comply with the applicable requirements and other relevant
factors.
E. For purposes of this section, a single
operational event that leads to simultaneous violations of
more than one standard shall be treated as a single
violation.
F. If a person fails to take corrective actions
within the time specified in a compliance order, the
constituent agency may:
(1) assess a civil penalty of not more than
twenty-five thousand dollars ($25,000) for each day of
continued noncompliance with the compliance order; and
(2) suspend or terminate the permit violated
by the person.
G. A compliance order issued by a constituent
agency pursuant to this section shall become final unless, no
later than thirty days after the compliance order is served,
a person named in the compliance order submits a written
request to the commission for a public hearing. The
commission shall conduct a public hearing within ninety days
after receipt of a request.
H. The commission may appoint an independent
hearing officer to preside over a public hearing held
pursuant to Subsection G of this section. The hearing SJC/SB 21
Page 40
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
officer shall:
(1) make and preserve a complete record of
the proceedings; and
(2) forward to the commission a report that
includes recommendations if recommendations are requested by
the commission.
I. The commission shall consider the findings of
the independent hearing officer, and based on the evidence
presented at the hearing, the commission shall make a final
decision regarding the compliance order.
J. In connection with any proceeding provided for
in this section, the commission may:
(1) adopt rules for discovery procedures;
and
(2) issue subpoenas for the attendance and
testimony of witnesses and for relevant papers, books and
documents.
K. Penalties collected pursuant to this section
shall be deposited in the general fund.
L. As an additional means of enforcing the Water
Quality Act or any regulation or standard of the commission,
the commission may accept an assurance of discontinuance of
any act or practice deemed in violation of the Water Quality
Act, or any regulation or standard adopted pursuant to that
act, from any person engaging in, or who has engaged in, such SJC/SB 21
Page 41
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
act or practice, signed and acknowledged by the chair of the
commission and the party affected. Any such assurance shall
specify a time limit during which the discontinuance is to be
accomplished."
SECTION 7. Section 74-6-12 NMSA 1978 (being Laws 1967,
Chapter 190, Section 11, as amended) is amended to read:
"74-6-12. LIMITATIONS.--
A. The Water Quality Act does not grant to the
commission or to any other entity the power to take away or
modify the property rights in water, nor is it the intention
of the Water Quality Act to take away or modify such rights.
B. The Water Quality Act does not apply to an
activity or condition subject to the authority of the
environmental improvement board pursuant to the Hazardous
Waste Act, the Ground Water Protection Act or the Solid Waste
Act except to abate water pollution or to control the
disposal or use of septage and sludge.
C. The Water Quality Act does not authorize the
commission to adopt a rule with respect to a condition or
quality of water if the water pollution and its effects are
confined entirely within the boundaries of property within
which the water pollution occurs when the water does not
combine with other waters.
D. The Water Quality Act does not grant to the
commission any jurisdiction or authority affecting the SJC/SB 21
Page 42
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
relation between employers and employees with respect to or
arising out of a condition or quality of water.
E. The Water Quality Act does not supersede or
limit the applicability of a law relating to industrial
health, safety or sanitation.
F. Except as required by federal law or for
surface water discharges permitted pursuant to the Water
Quality Act, in the adoption of rules and water quality
standards and in an action for enforcement of the Water
Quality Act and rules adopted pursuant to that act,
reasonable degradation of water quality resulting from
beneficial use shall be allowed. The degradation shall not
result in impairment of water quality to the extent that
water quality standards are exceeded.
G. Except for a surface water discharge for which
a permit is required under rules adopted pursuant to
Subsection R of Section 74-6-4 NMSA 1978, the Water Quality
Act does not apply to an activity or condition subject to the
authority of the oil conservation commission pursuant to
provisions of the Oil and Gas Act and other laws conferring
power on the oil conservation commission to prevent or abate
water pollution.
H. When changes in dissolved oxygen, temperature,
dissolved solids, sediment or turbidity in a water of the
state is attributable to natural causes or to the reasonable SJC/SB 21
Page 43
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
operation of irrigation and flood control facilities that are
not subject to federal or state water pollution control
permitting, numerical standards for temperature, dissolved
solids content, dissolved oxygen, sediment or turbidity
adopted under the Water Quality Act do not apply. "Reasonable
operation", as used in this subsection, shall be defined by
rule of the commission."
SECTION 8. A new section of the Water Quality Act is
enacted to read:
"NEGLECTED AND CONTAMINATED SITES FUND--CREATED.--
A. The "neglected and contaminated sites fund" is
created as a nonreverting fund in the state treasury. The
fund consists of appropriations, gifts, grants, donations and
money received by the department. Unless otherwise required
by law, money received or recovered by the state by or on
behalf of the department arising from claims for enforcement
actions, response actions or response costs relating to the
contamination liability, including any fees, settlement
funds, recovered litigation costs and any interest derived
therefrom, shall be deposited in the fund.
B. The department shall administer the fund.
Money in the fund is appropriated to the department for the
state to respond to, investigate and remediate water
pollution and contamination in soil and soil vapor.
C. Money in the fund shall be disbursed on SJC/SB 21
Page 44
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
warrants signed by the secretary of finance and
administration pursuant to vouchers signed by the secretary
of environment or the secretary's designee."
SECTION 9. A new section of the Water Quality Act is
enacted to read:
"LIABILITY--SCOPE--DEFENSES--CONTRIBUTION.--
A. Liability for the prevention or abatement of
water pollution exists if there has been an actual or
threatened release of a water contaminant that causes the
requirement for response or remediation, or the incurrence of
response or remediation costs. Responsible parties may be
liable for the release of a water contaminant that occurred
prior to and since the effective date of this 2025 act.
B. Liability shall include:
(1) all costs of removal or remedial action
incurred by the state;
(2) any other necessary costs of response
incurred by any other person;
(3) damages for injury to, destruction of or
loss of natural resources, including the reasonable costs of
assessing such injury, destruction or loss, resulting from a
release of water contaminants; and
(4) the cost of any health assessment or
health effects study carried out pursuant to rules
promulgated by the commission. SJC/SB 21
Page 45
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
C. Liability defenses of the responsible party
shall include, if established by a preponderance of the
evidence:
(1) an act of God;
(2) an act of war;
(3) an act or omission of a third party if:
(a) the defendant exercised due care
with respect to the water contaminant concerned, taking into
consideration the characteristics of such contamination, in
light of all relevant facts and circumstances;
(b) the defendant took precautions
against foreseeable acts or omissions of any such third party
and the consequences that could foreseeably result from such
acts or omissions;
(c) the third party was not an employee
or agent of the defendant at the time of the release; and
(d) the third party was not one whose
act or omission occurred in connection with a contractual
relationship, existing directly or indirectly, with the
defendant;
(4) an act authorized by and in compliance
with a permit issued pursuant to the Water Quality Act;
(5) a party that holds only a security
interest in property where there has been water pollution;
(6) a party who is an innocent purchaser or SJC/SB 21
Page 46
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
a bona fide prospective purchaser as defined in 42 U.S.C.
9601;
(7) a party who owned or operates property
where water pollution has migrated onto the property from a
property not owned or operated by that party;
(8) a party acting as a fiduciary in
accordance with its fiduciary duty for property where there
has been water pollution; or
(9) any combination of Paragraphs (1)
through (8) of this subsection.
D. Any person who incurs costs associated with an
abatement plan as approved by the department consistent with
the rules adopted by the commission may file an action in
district court to seek contribution from any other person who
is liable or potentially liable with respect to the release
of water contaminants pursuant to the Water Quality Act. In
resolving contribution claims, the court may allocate
response costs among liable parties using such equitable
factors as the court determines are appropriate. Nothing in
this subsection shall diminish the right of any person to
bring an action for contribution under any other law.
E. The department may bring an action in district
court against any responsible party to recover response or
remediation costs. The department may settle the liability
of any responsible party for response or remediation costs SJC/SB 21
Page 47
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
through an administratively or judicially approved
settlement.
F. A person who has resolved liability to the
state in an administrative or judicially approved settlement
shall not be liable for claims for contribution regarding
matters addressed in the settlement. Such settlement does
not discharge any of the other potentially liable persons
unless its terms so provide, but it reduces the potential
liability of the others by the amount of the settlement."
SECTION 10. SHORT TITLE.--Sections 10 through 20 of
this 2025 act may be cited as the "New Mexico Pollutant
Discharge Elimination System Act".
SECTION 11. DEFINITIONS.--As used in the New Mexico
Pollutant Discharge Elimination System Act:
A. "commission" means the water quality control
commission;
B. "confidential business information" means
business information that a person claims as confidential at
the time of submission and that, if made public, would
divulge trade secrets or falls under other laws that give or
may give a business the right to preserve the confidentiality
of business information and to limit its use or disclosure by
others in order that the business may obtain or retain
business advantages it derives from its rights in the
information; SJC/SB 21
Page 48
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
C. "department" means the department of
environment;
D. "discharge" means the addition of a pollutant
or combination of pollutants to waters of the United States
from a point source, including surface runoff collected or
channeled by human effort, discharges through pipes, sewers
or other conveyances owned by the state, a municipality or
another person that do not lead to a treatment works and
discharges through pipes, sewers or other conveyances leading
into privately owned treatment works. "Discharge" does not
include an addition of pollutants by an indirect discharger;
E. "federal act" means the Federal Water Pollution
Control Act and its subsequent amendments and successor
provisions;
F. "national pollutant discharge elimination
system" means the program for issuing, modifying, revoking
and reissuing, terminating, monitoring and enforcing permits
and imposing and enforcing pretreatment requirements pursuant
to Sections 307, 318, 402 and 405 of the federal act;
G. "permit" means an authorization issued by the
department in accordance with program requirements and
includes an individual or general permit;
H. "person" means an individual, an association, a
partnership, a corporation, a municipality, a state or
federal agency or an agent, officer or employee thereof; SJC/SB 21
Page 49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I. "point source" means a discernible, confined
and discrete conveyance, including a pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling
stock, concentrated animal feeding operation, landfill
leachate collection system or vessel or other floating craft
from which pollutants are or may be discharged, but does not
include a discharge composed entirely of return flows from
irrigated agriculture or agricultural storm water runoff;
J. "pollutant" means:
(1) dredged spoil, solid waste, incinerator
residue, filter backwash, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological materials, radioactive
materials (except those regulated pursuant to the federal
Atomic Energy Act of 1954, as amended), heat, wrecked or
discarded equipment, rock, sand, cellar dirt and industrial,
municipal and agricultural waste discharged into water; but
(2) "pollutant" does not include:
(a) sewage from vessels;
(b) water, gas or other material that
is injected into a well to facilitate production of oil or
gas; and
(c) water derived in association with
oil or gas production and disposed of in a well, if: 1) the
well is used either to facilitate production or for disposal
purposes and is approved by authority of the state in which SJC/SB 21
Page 50
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the well is located; and 2) the state determines that the
injection or disposal will not result in the degradation of
ground or surface water resources;
K. "program" means the program authorized by the
New Mexico Pollutant Discharge Elimination System Act and
approved by the United States environmental protection
agency;
L. "regional administrator" means the regional
administrator of region six of the United States
environmental protection agency; and
M. "waters of the United States" means those
waters regulated pursuant to the national pollutant discharge
elimination system program and defined in federal
regulations.
SECTION 12. PERMIT REQUIRED.--
A. A person shall not discharge a pollutant from a
point source to waters of the United States without a permit
issued by the department pursuant to the New Mexico Pollutant
Discharge Elimination System Act and the program.
B. The issuance of a permit does not convey any
property rights or exclusive privileges.
C. The issuance of a permit does not authorize any
injury to persons or property or invasion of other private
rights or any infringement of any other laws, rules,
regulations or ordinances. SJC/SB 21
Page 51
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
D. No permit shall be issued when the regional
administrator has objected in writing pursuant to the federal
act.
E. Only the following discharges are exempt from
Subsection A of this section:
(1) a discharge composed entirely of return
flows from irrigated agriculture;
(2) a discharge of storm water runoff from a
mining operation or an oil and gas exploration, production,
processing or treatment operation or transmission facility
that is composed entirely of flows that are from conveyances
or systems of conveyances, including pipes, conduits, ditches
and channels, used for collecting and conveying precipitation
runoff and that are not contaminated by contact with, or do
not come into contact with, any overburden, raw material,
intermediate products, finished product, byproduct or waste
products located on the site of the operation or facility.
Oil and gas exploration, production, processing or treatment
operations or transmission facilities include activities
necessary to prepare a site for drilling and for the movement
and placement of drilling equipment, whether or not the field
activities or operations may be considered to be construction
activities; or
(3) a discharge of runoff resulting from the
following silviculture activities conducted in accordance SJC/SB 21
Page 52
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
with standard industry practice:
(a) nursery operations;
(b) site preparation;
(c) reforestation and subsequent
cultural treatment;
(d) thinning;
(e) prescribed burning;
(f) pest and fire control;
(g) harvesting operations;
(h) surface drainage; and
(i) road construction and maintenance.
F. No ruling shall be made on any application for
a draft permit without opportunity for a public hearing at
which all interested persons shall be given a reasonable
chance to submit evidence, data, views or arguments orally or
in writing and to examine witnesses testifying at the
hearing. The hearing shall be recorded. A person submitting
evidence, data, views or arguments shall be subject to
examination at the hearing.
SECTION 13. COMMISSION--DUTIES.--The commission shall:
A. adopt, promulgate and publish rules to
implement and administer the program, including the
standards, requirements and processes to issue, renew,
modify, deny and terminate permits, including rules that are
necessary and appropriate to obtain and sustain authorization SJC/SB 21
Page 53
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
from the regional administrator. In adopting the rules, the
commission may incorporate by reference, including
prospectively, those sections or parts of federal regulations
that the commission deems necessary and appropriate;
B. adopt, promulgate and publish rules for
notification procedures that ensure that the public and
affected Indian nations, tribes and pueblos, governmental
agencies and downstream states receive notice of each draft
permit;
C. adopt a schedule of fees to support the cost of
implementing the program, including the preparation and
adoption of rules, the review of applications, issuance and
enforcement of permits and rules, compliance assistance,
monitoring and inspection of facilities and discharges, data
stewardship, records management, administrative and legal
costs and other costs the commission deems appropriate.
Unless otherwise required by law, money collected pursuant to
this section shall be deposited in the water quality
management fund; and
D. hear and decide petitions for review of
department actions to require, issue, renew, modify, deny or
terminate a permit or issue a compliance order.
SECTION 14. DEPARTMENT--DUTIES AND POWERS.--
A. For the discharge of a pollutant to waters of
the United States, notwithstanding the provisions of Section SJC/SB 21
Page 54
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
70-2-12 NMSA 1978, the department shall administer and
enforce rules adopted by the commission pursuant to the
New Mexico Pollutant Discharge Elimination System Act.
B. The department shall have all duties and powers
necessary and appropriate to implement the program, including
the authority to:
(1) propose rules for adoption by the
commission;
(2) conduct investigations;
(3) require monitoring, sampling and
reporting;
(4) require the keeping and production of
records, documents and other information;
(5) review applications;
(6) require, issue, renew, modify, deny or
terminate permits;
(7) deny a permit or request for permit
coverage if the discharge would cause or contribute to a
pollutant in excess of a downstream state or tribal water
quality standard;
(8) enter into or through any site or
premises subject to rules adopted for the program or in which
records relevant to program operation are kept or may be
located, at a reasonable time and upon the presentation of
proper credentials, in order to investigate whether a SJC/SB 21
Page 55
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
discharge may be present, inspect, monitor, copy records,
sample, photograph, collect other information or otherwise
investigate compliance with the program, including compliance
with permit conditions and other program requirements. Entry
into a private residence shall be allowed only by consent of
the owner of the residence or order of the district court for
the county in which venue is proper;
(9) issue administrative compliance orders
and file civil and criminal actions in the district court to
enforce the New Mexico Pollutant Discharge Elimination System
Act, permits and rules, including pretreatment standards and
local limits adopted by publicly owned treatment works;
(10) enter into agreements with the regional
administrator for the implementation of the program;
(11) enter into agreements with other
governmental entities, including Indian nations, tribes and
pueblos; and
(12) receive and expend funds appropriated,
authorized, granted, donated or allocated to the department
for purposes consistent with the New Mexico Pollutant
Discharge Elimination System Act.
C. The department shall:
(1) encourage the public to report
violations pursuant to the New Mexico Pollutant Discharge
Elimination System Act; SJC/SB 21
Page 56
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(2) develop procedures for receiving and
ensuring proper consideration of information submitted by the
public about violations and make available information on
those reporting procedures;
(3) investigate and provide written
responses to all complaints submitted pursuant to the
reporting procedures;
(4) publish notice of and provide at least
thirty days for public comment on any proposed settlement of
an enforcement action taken pursuant to the New Mexico
Pollutant Discharge Elimination System Act; and
(5) not oppose intervention by any person
when permissive intervention may be authorized by statute or
rule.
SECTION 15. ADMINISTRATIVE AND CIVIL ENFORCEMENT.--
A. Whenever the department or attorney general
determines that a person violated or is violating or that a
violation may occur of any requirement of the New Mexico
Pollutant Discharge Elimination System Act, program, permit
or rule, the department or attorney general may:
(1) issue a temporary order directing the
person to cease and desist unauthorized activity that is
endangering or causing damage to public health or the
environment pending further action by the department;
(2) issue an administrative compliance order SJC/SB 21
Page 57
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
requiring compliance, modification or termination of the
permit and assess a civil penalty, including for
administrative compliance costs; and
(3) commence a civil action in district
court for appropriate relief, including a temporary
restraining order or injunctive relief for a threatened or
continuing violation of a program requirement and a civil
penalty.
B. An administrative compliance order shall state
with reasonable specificity the nature of the violation.
Civil penalties shall be recoverable for the violation of a
provision of the New Mexico Pollutant Discharge Elimination
System Act or the program; a program permit condition; a
program filing requirement; a duty to allow or carry out
inspection, entry or monitoring activities; or a rule or an
order issued by the department. A civil penalty shall be
assessable in at least the amount of five thousand dollars
($5,000) per day for each violation, but shall not exceed
twenty thousand dollars ($20,000) per day for each violation.
C. In determining the amount of a civil penalty,
the department, attorney general or district court shall
consider the seriousness of the violation or violations, as
well as the economic benefit, if any, resulting from the
violation, any history of such violations, any good-faith
efforts to comply with the applicable requirements, the SJC/SB 21
Page 58
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
economic impact of the penalty on the violator and other
matters as justice may require. For the purposes of this
section, a single operational upset or event that leads to
simultaneous violations of more than one pollutant parameter
shall be treated as a single violation.
D. An administrative compliance order issued
pursuant to Paragraph (2) of Subsection A of this section
shall become final unless, no later than thirty days after
service, the person issued the compliance order submits a
written request to the commission for a public hearing.
E. The commission shall conduct a public hearing
no later than ninety days after receipt of the written
request for a public hearing.
F. Following a public hearing, the commission
shall issue a written decision that shall constitute the
final action on the compliance order.
G. If a person fails to comply with the final
action on the compliance order, the department or attorney
general may file a civil action in the district court to
require compliance, modify or terminate the permit, collect
the assessed civil penalty and assess an additional civil
penalty of not more than twenty-five thousand dollars
($25,000) for each day of continued noncompliance with the
compliance order.
H. Unless otherwise required by law, money SJC/SB 21
Page 59
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
collected pursuant to this section shall be deposited in the
general fund.
SECTION 16. CRIMINAL ENFORCEMENT.--
A. A person shall not:
(1) discharge a pollutant to waters of the
United States without a permit for the discharge issued
pursuant to the program;
(2) violate an applicable standard,
limitation, permit condition or other requirement of a permit
issued pursuant to the New Mexico Pollutant Discharge
Elimination System Act or a rule adopted pursuant to that
act;
(3) make a false statement, a
representation, a certification or an omission of material
fact in an application, a record, a plan, a form, a notice or
a report required by a permit or other document submitted or
maintained pursuant to the New Mexico Pollutant Discharge
Elimination System Act or a rule or permit adopted or issued
pursuant to that act;
(4) falsify, tamper with or render
inaccurate a monitoring device, method or record required to
be maintained pursuant to the New Mexico Pollutant Discharge
Elimination System Act or a rule or permit adopted or issued
pursuant to that act;
(5) fail to monitor, sample or report as SJC/SB 21
Page 60
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
required by a permit issued pursuant to the New Mexico
Pollutant Discharge Elimination System Act or a rule or
permit adopted or issued pursuant to that act; or
(6) violate a filing requirement pursuant to
the New Mexico Pollutant Discharge Elimination System Act or
a rule or permit adopted or issued pursuant to that act.
B. A person who knowingly violates or knowingly
causes or allows another person to violate Subsection A of
this section is guilty of a fourth degree felony and shall be
sentenced in accordance with the provisions of the Criminal
Sentencing Act.
C. A person who is convicted of a second or
subsequent violation of Subsection A of this section is
guilty of a third degree felony and shall be sentenced in
accordance with the provisions of the Criminal Sentencing
Act.
D. A person who knowingly violates Subsection A of
this section or knowingly causes another person to violate
Subsection A of this section and thereby causes a substantial
adverse environmental impact is guilty of a third degree
felony and shall be sentenced in accordance with the
provisions of the Criminal Sentencing Act.
E. A person who knowingly violates Subsection A of
this section and knows at the time of the violation that the
person is creating a substantial danger of death or serious SJC/SB 21
Page 61
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
bodily injury to any other person is guilty of a second
degree felony and shall be sentenced in accordance with the
provisions of the Criminal Sentencing Act.
F. A person who willfully or negligently violates
Paragraph (2) or (6) of Subsection A of this section may be
assessed a criminal fine of ten thousand dollars ($10,000)
per day for each violation.
G. A person who knowingly violates Paragraph (3)
or (4) of Subsection A of this section may be assessed a
criminal fine of five thousand dollars ($5,000) for each
violation.
H. A single operational upset or event that leads
to simultaneous violations of more than one pollutant
parameter shall be treated as a single violation.
I. The attorney general has the authority to
enforce this section.
SECTION 17. APPEALS TO THE COMMISSION.--
A. An interested person who is affected by a
permitting action or compliance order may file a petition for
review before the commission. The petition shall:
(1) be made in writing to the commission
within thirty days from the date notice is given to the
applicant or permittee of the department's action;
(2) include a statement of the issues to be
raised and the relief sought; and SJC/SB 21
Page 62
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
(3) be provided to all other persons
submitting evidence, data, views or arguments in the
proceeding before the department.
B. A person who files a timely petition for review
may request a stay of the department's action, which the
commission may grant in whole or in part after a hearing on
the request and a showing of good cause.
C. Unless a timely petition for review is made,
the decision of the department shall be final and shall not
be subject to judicial review or review by the commission.
D. If a timely petition for review is made, the
commission shall consider the petition within ninety days
after receipt of the petition at a commission meeting open to
the public. The commission shall notify the petitioner and
the applicant or permittee, if other than the petitioner, of
the date, time and location of the public commission meeting
at which the petition for review will be considered. If the
petitioner is not the applicant or permittee, the applicant
or permittee shall be a party to the proceeding. The
commission shall ensure that the public receives notice of
the date, time and place of the review.
E. The commission shall review the record compiled
before the department, including the transcript of any public
hearing held on the permitting action or compliance order,
and shall allow any party to submit arguments. SJC/SB 21
Page 63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
F. The commission may designate a hearing officer
to review the record and the arguments of the parties and
recommend a decision to the commission.
G. Based on the review of the evidence, the
arguments of the parties, if any, and the recommendations of
the hearing officer, if one is designated, the commission
shall sustain, modify or reverse the action of the
department. The commission shall enter ultimate findings of
fact and conclusions of law and keep a record of the review.
H. Prior to the date set for review, if a party
shows to the satisfaction of the commission that there was no
reasonable opportunity to submit comment or evidence on an
issue being challenged, the commission shall order that
additional comment or evidence be taken by the department.
Based on the additional evidence, the department may revise
the decision and shall promptly file with the commission the
additional evidence received and action taken. The
commission shall consider the additional evidence within
ninety days after receipt of the additional evidence and
shall notify the petitioner and the applicant or permittee,
if other than the petitioner, of the date, time and place of
the review.
I. The commission shall notify the petitioner and
all other participants in the review proceeding of the action
taken by the commission and the reasons for that action. SJC/SB 21
Page 64
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
SECTION 18. JUDICIAL REVIEW.--
A. A person who is adversely affected by a rule
adopted by the commission may appeal to the court of appeals
for further relief no later than thirty days after the
commission's final action. The date the rule is filed with
state records pursuant to the State Rules Act shall be the
date of the commission's final action.
B. A person who participated in a permitting or
compliance order review before the commission may appeal to
the court of appeals for further relief no later than thirty
days after the commission's final action.
C. An appeal before the court of appeals shall be
upon the record made before the commission.
D. An application for a stay of the action being
appealed may be filed with the commission no later than
thirty days after the commission's final action. After a
hearing and a showing of good cause by the appellant, a stay
of the action being appealed may be granted pending the
outcome of the judicial review. If the commission denies the
application, a stay of the action may be granted by the court
of appeals within ninety days after the commission's denial.
E. The court of appeals shall set aside the
commission's final action only if the court finds that the
action is:
(1) arbitrary, capricious or an abuse of SJC/SB 21
Page 65
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
discretion;
(2) not supported by substantial evidence in
the record; or
(3) otherwise not in accordance with law.
SECTION 19. LIMITATIONS.--The New Mexico Pollutant
Discharge Elimination System Act does not authorize the
commission or department to require a permit that:
A. takes away or modifies a property right in
water, except that the discharge of a pollutant to waters of
the United States without a permit shall not be a property
right in water;
B. affects the relation between employers and
employees with respect to or arising out of a condition of
water quality; or
C. supersedes or limits the applicability of a law
relating to industrial health, safety or sanitation.
SECTION 20. AVAILABILITY OF RECORDS.--
A. Records, including the names and addresses of
permit applicants or permittees, applications, permits,
inspections and effluent data, including data relating to
discharges and ambient water quality, obtained by the
commission or department pursuant to the New Mexico Pollutant
Discharge Elimination System Act shall be available to the
public.
B. Records obtained by the commission or SJC/SB 21
Page 66
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
department that are submitted in relation to applications
shall include information required on application forms
provided by the commission or department, information
submitted on the forms themselves and any attachments used to
supply information required by the forms. All such records
shall be available to the public.
C. For other records, the commission or department
shall not disclose the record if a person submitting the
record asserts at the time of submission that the record or
part of the record, if made public, would divulge
confidential business information or trade secrets as defined
in the Uniform Trade Secrets Act.
D. Confidential business information or trade
secrets may be disclosed:
(1) to officers, employees or authorized
representatives of the commission or department;
(2) to officers, employees or authorized
representatives of the United States; or
(3) when relevant, in a proceeding pursuant
to the New Mexico Pollutant Discharge Elimination System Act
or the federal act.
E. An officer, employee or authorized
representative of the commission or department who willfully
discloses information that the commission or department has
determined is entitled to protection as confidential business SJC/SB 21
Page 67
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
information or a trade secret shall be fined not more than
one thousand dollars ($1,000) or imprisoned for not more than
one year, or both.
F. In submitting records, a person providing the
records shall:
(1) designate the records the person
believes are entitled to protection pursuant to this section
by stamping the records as "confidential business
information"; and
(2) submit the designated records separately
from other records submitted pursuant to the New Mexico
Pollutant Discharge Elimination System Act.