2021 New Mexico Statutes
Chapter 74 - Environmental Improvement
Article 6 - Water Quality
Section 74-6-4 - Duties and powers of commission. (Repealed effective July 1, 2026.)
The 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 other than the purposes for which 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 regulation that exceeds a grant of rulemaking authority listed in the statutory section of the Water Quality Act authorizing the standard or regulation;
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;
E. shall adopt, promulgate and publish regulations 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 regulations 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. Regulations 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. In making regulations, the commission 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;
(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;
F. shall assign responsibility for administering its regulations to constituent agencies so as 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 any matters within the purpose of the Water Quality Act. In assigning responsibilities to constituent agencies, the commission shall give priority to the primary interests of the constituent agencies. The department of environment 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;
G. 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;
H. may grant an individual variance from any regulation of the commission whenever it is found that compliance with the regulation 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. Any variance shall be granted for the period of time specified by the commission. The commission shall adopt regulations specifying the procedure under which variances may be sought, which regulations shall provide for the holding of a public hearing before any variance may be granted;
I. may adopt regulations to require the filing with it or a constituent agency of proposed plans and specifications for the construction and operation of new sewer systems, treatment works or sewerage systems or 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;
J. may adopt regulations requiring notice to it or a constituent agency of intent to introduce or allow the introduction of water contaminants into waters of the state;
K. shall specify in regulations the measures to be taken to prevent water pollution and to monitor water quality. The commission may adopt regulations for particular industries. The commission shall adopt regulations for the dairy industry and the copper industry. The commission shall consider, in addition to the factors listed in Subsection E of this section, the best available scientific information. The regulations 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 regulations to be proposed for adoption by the commission. The regulations 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;
L. may adopt regulations 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;
M. 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 such 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;
N. 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 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;
O. shall coordinate application procedures and funding cycles for loans and grants from the federal 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 [11-6-1 NMSA 1978 et seq.];
P. shall adopt regulations to be administered by the department of environment 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; and
Q. may adopt regulations to be administered by the department of environment for surface water discharges.
History: 1953 Comp., § 75-39-4, enacted by Laws 1967, ch. 190, § 4; 1970, ch. 64, § 3; 1971, ch. 277, § 51; 1973, ch. 326, § 3; 1981, ch. 347, § 1; 1984, ch. 5, § 13; 1993, ch. 291, § 4; 2001, ch. 240, § 1; 2001, ch. 281, § 1; 2003, ch. 7, § 2; 2009, ch. 194, § 1; 2019, ch. 197, § 11.
ANNOTATIONSDelayed repeals. — For the delayed repeal of this section, see 74-6-17 NMSA 1978.
Cross references. — For certification of utility operators, see 61-33-1 NMSA 1978 et seq.
The 2019 amendment, effective July 1, 2019, required the water quality control commission to require a permit for the use of produced water, and required the commission to adopt regulations to be administered by the department of environment for the discharge, handling, transport, storage, recycling or treatment for the disposition of treated produced water; in Subsection M, after "health or the environment", added "or for the use of produced water"; and added Subsections P and Q.
Applicability. — Laws 2019, ch. 197, § 12 provided that the provisions of Laws 2019, ch. 197 apply to contracts entered into on and after July 1, 2019.
The 2009 amendment, effective June 19, 2009, added Subsection C; in Subsection E, in the third sentence, after "Regulations" deleted "shall not specify the method to be used to prevent or abate water pollution, but"; and added Subsection K.
The 2003 amendment, effective March 10, 2003, inserted present Subsection L and redesignated former Subsection L as Subsection M.
The 2001 amendment, effective June 15, 2001, in Subsection C, substituted "based on credible scientific data and other evidence appropriate under the Water Quality Act" for "subject to the Water Quality Act"; and at the end of Subsection E, inserted "and shall maintain a repository of the scientific data required by this act".
The 1993 amendment, effective June 18, 1993, inserted "management" in Subsection B; in Subsection C, deleted "as a guide to water pollution control" following "standards" in the first sentence and added all of the remaining language following the first occurrence of "standards"; in Subsection D, rewrote the introductory paragraph, inserted "environment" in Paragraph (1), made minor stylistic changes in Paragraphs (2), (5), and (6), and added Paragraph (7); substituted the last sentence of Subsection E for the former last sentence which read "The environmental improvement division of the health and environment department shall provide testing and other technical services"; made minor stylistic changes in Subsections G, H, and J; and inserted "or the environment" in Subsection K.
Permit conditions. — The legislature did not want regulations to specify a particular method because it understood the inflexibility in specifying a particular method in a regulation. Section 74-6-4D NMSA 1978 illustrates the legislature's intention to avoid a required approach and, instead, to grant flexibility in determining the appropriate method to use for each site. Section 74-6-4D NMSA 1978 is consistent with the idea that each site is unique, different in scale, different in impact, and different in geology and hydrology. Phelps Dodge Tyrone, Inc. v. N.M. Water Quality Control Comm'n, 2006-NMCA-115, 140 N.M. 464, 143 P.3d 502, cert. denied, 2006-NMCERT-009, 140 N.M. 542, 144 P.3d 101.
Not vague or over-broad. — The water quality control commission's amended definition of surface waters of the state, which eliminates language referring to interstate commerce, is not unconstitutionally over-broad or vague. N.M. Mining Assn. v. N.M. Water Quality Control Comm'n, 2007-NMCA-084, 142 N.M. 200, 164 P.3d 81.
Relevant factors in adopting water quality standards. — The adoption of water quality standards is governed by Subsection C (now D) and the commission is not required to consider technical feasibility and economic reasonableness of the standard or to determine that there is available demonstrated control technology to abate contamination to the standard. N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007-NMCA-010, 141 N.M. 41, 150 P.3d 991.
Adoption of the Copper Rule was a permissible exercise of the water quality control commission's authority. — Where petitioners appealed the water quality control commission's (commission) decision to adopt the Copper Rule, a rule which was designed to control and contain discharges of water contaminants specific to copper mine facilities and their operations to prevent water pollution so that ground water meets state standards, claiming that the Copper Rule is inconsistent with and violates the Water Quality Act (WQA), the commission did not abuse its discretion in adopting the Copper Rule, because the adoption of the rule is a permissible exercise of the commission's statutory authority, and the Copper Rule advances the core purposes of 74-6-5(E)(3) NMSA 1978 by protecting groundwater outside the area of open pit hydrologic containment and monitoring wells. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2018-NMSC-025, aff'g 2015-NMCA-076, 355 P.3d 36.
The Water Quality Act does not prohibit a point of compliance system for protecting ground water. — Under regulations adopted by the water quality control commission, where the primary method for protecting ground water during a copper mine's operation is through discharge control at each mining unit, or place of each mining-related activity, appellant's argument, that the regulations create a "point of compliance" system that allows a mine facility to pollute water under the entire mine facility up to a designated point or "point of compliance" at which point a monitor is used to ensure compliance with adopted standards and that such a system is prohibited under the Water Quality Act (WQA), is not supported by the language of the WQA. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2015-NMCA-076, cert. granted, 2015-NMCERT-007, cert. granted, 2015-NMCERT-007, and cert. granted, 2015-NMCERT-007.
Sufficient evidence that regulations comply with Water Quality Act. — Under regulations adopted by the water quality control commission, where the primary method for protecting ground water during a copper mine's operation is through discharge control at each mining unit, or place of each mining-related activity, the requirement that monitor wells be placed as close as practicable around the perimeter and downgradient of each mining unit, and the placement of monitor wells and the number of monitor wells that are required at each unit is subject to approval from the New Mexico environment department, and the requirement that each mining specifically identify the method by which contaminated water is controlled, the regulations do not violate any provision of the Water Quality Act. Gila Res. Info. Project v. N.M. Water Quality Control Comm'n, 2015-NMCA-076, cert. granted, 2015-NMCERT-007, cert. granted, 2015-NMCERT-007, and cert. granted, 2015-NMCERT-007.
Substantial evidence. — The commission's decision to revise the standard for uranium in groundwater was supported by substantial evidence, based on credible scientific data, where the commission relied on the testimony of experts as to the appropriate standard for uranium in groundwater for the protection of public health; a peer-reviewed study on the toxic effects of uranium on humans, and the testimony of epidemiologists about the populations in New Mexico that were especially sensitive to the toxic effect of uranium. N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n, 2007-NMCA-010, 141 N.M. 41, 150 P.3d 991.
The water quality control commission's amended definition of surface waters of the state, which eliminates language referring to interstate commerce, was adopted consistent with the requirements of the Water Quality Act, 33 U.S.C. §1251 (1972) and due process. N.M. Mining Assn. v. N.M. Water Quality Control Comm'n, 2007-NMCA-084, 142 N.M. 200, 164 P.3d 81.
The water quality control commission's decision to amend the definition of surface waters of the state to eliminate language referring to interstate commerce, which was not based on scientific evidence but on uncertainty about the scope of federal regulatory jurisdiction under the Clean Water Act, was supported by substantial evidence. N.M. Mining Assn. v. N.M. Water Quality Control Comm'n, 2007-NMCA-084, 142 N.M. 200, 164 P.3d 81.
State can adopt its own toxic pollutant criteria, rather than having the criteria imposed by the EPA. Regents of Univ. of Cal. v. N.M. Water Quality Control Comm'n, 2004-NMCA-073, 136 N.M. 45, 94 P.3d 788.
Statement of reasons for adopting regulations need not state why the commission adopted each individual provision of the standards or need not respond to all concerns raised in testimony as such a requirement would be unduly onerous for the commission and unnecessary for the purposes of appellate review. Univ. of Cal. v. N.M. Water Quality Control Comm'n, 2004-NMCA-073, 136 N.M. 45, 94 P.3d 788.
Discretion in consideration of factors. — In adopting standards for organic compounds in groundwater, Subsection D (now E) does not require the record to contain the commission's consideration of every part within the six (now seven) factors for each organic compound. The commission possesses reasonable discretion in its consideration of the six factors and in the weight it gives to each factor. Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1987-NMCA-153, 107 N.M. 469, 760 P.2d 161, cert. denied (1988).
No requirement that commission consider complete environmental impact. — There is no specific requirement in the commission's mandate that it consider to the fullest extent possible the environmental consequences of its action. The commission could in all good faith adopt a regulation governing the effluent quality of sewage so restrictive that municipalities would turn to methods other than those currently used to dispose of it which would have adverse environmental consequences far more serious than some pollution of the waters of the state. City of Roswell v. N.M. Water Quality Control Comm'n, 1972-NMCA-160, 84 N.M. 561, 505 P.2d 1237, cert. denied, 84 N.M. 560, 505 P.2d 1236 (1973) (decided under former law).
Commission may delegate authority to administer regulations. — Where the commission gives the environmental improvement division the authority to administer certain regulations, there is no unlawful delegation of authority. Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm'n, 1982-NMCA-015, 98 N.M. 240, 647 P.2d 873.
The federal environmental protection agency did not act arbitrarily or capricously in relying on a letter written by the chairman of the New Mexico water quality control commission interpreting a regulation of the water quality control commission. Defenders of Wildlife v. U.S. Envtl. Protection Agency, 415 F.3d 1121 (10th Cir. 2005).
Tributaries of waters with fishery uses. — Nothing in the plain language of Subsection C (now D) of this section prohibits the commission from protecting waters with fishery uses by applying the standards to tributaries of those waters. Univ. of Cal. v. N.M. Water Quality Control Comm'n, 2004-NMCA-073, 136 N.M. 45, 94 P.3d 788.
The commission has not designated a fishery use for tributaries by applying the human health standards to them. Univ. of Cal. v. N.M. Water Quality Control Comm'n, 2004-NMCA-073, 136 N.M. 45, 94 P.3d 788.
Numerical standards for organic compounds in rainwater. — The adoption of numerical standards for organic compounds in rainwater was not arbitrary and capricious, as they were technically achievable within the meaning of Subsection D (now E). Tenneco Oil Co. v. N.M. Water Quality Control Comm'n, 1987-NMCA-153, 107 N.M. 469, 760 P.2d 161, cert. denied (1988).
Law reviews. — For comment, "Control of Industrial Water Pollution in New Mexico," see 9 Nat. Resources J. 653 (1969).
For note, "Ground and Surface Water in New Mexico: Are They Protected Against Uranium Mining and Milling?" see 18 Nat. Resources J. 941 (1978).
For note, "New Mexico Water Pollution Regulations and Standards Upheld," see 19 Nat. Resources J. 693 (1979).
For article, "The Assurance of Reasonable Toxic Risk?," see 24 Nat. Resources J. 549 (1984).
For article, "Information for State Groundwater Quality Policymaking," see 24 Nat. Resources J. 1015 (1984).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 61A Am. Jur. 2d Pollution Control § 719.
39A C.J.S. Health and Environment §§ 133 to 136.
