Clean Water Act Section 401 and 404 Updates in New Mexico

What Happened?

The New Mexico Environment Department (NMED) issued a statement in late May 2022 that Individual Water Quality Certification (WQC) under Section 401 of the Clean Water Act (CWA) will be required for all projects seeking CWA Section 404 authorization using one of 13 Nationwide Permits (NWPs) (including some of the most widely used NWPs for energy, development, and transmission projects). The U.S. Army Corps of Engineers (USACE) Albuquerque District released a Special Public Notice outlining the individual WQC process, including a pre-filing meeting, requirements for applications, and review timelines.

Why Does It Matter?

For any project activities that may result in a discharge into waters of the U.S., Individual WQC is required with the Certifying Authority, including a pre-filing meeting request, for activities covered by the 13 NWPs, regardless of the impacts threshold (acres of proposed dredge or fill material). In turn, preconstruction notification to the USACE is required for compliance with CWA Section 404. These new regulations could lengthen the time needed to complete environmental permitting.

Which 13 Nationwide Permits?

• NWP 12 – Oil and Natural Gas Pipeline Activities
• NWP 21 – Surface Coal Mining Activities
• NWP 29 – Residential Developments
• NWP 39 – Commercial and Industrial Developments
• NWP 40 – Agricultural Activities
• NWP 42 – Recreational Facilities
• NWP 43 – Stormwater Management Facilities
• NWP 44 – Mining Activities
• NWP 50 – Underground Coal Mining Activities
• NWP 51 – Land-Based Renewable Energy Generation Facilities
• NWP 52 – Water-Based Renewable Energy Generation Pilot Projects
• NWP 57 – Electric Utility Line and Telecommunications Activities
• NWP 58 – Utility Line Activities for Water and Other Substances

Read the Notice from USACE here and NMED letter here.

SWCA Can Help

Contact SWCA’s CWA specialists to help understand the new regulation and support CWA permitting.