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(Parenthesis ( ) Indicate Revenue Decreases)

Conflicts with Federal Clean Water Act and NM Water Quality Act

SOURCES OF INFORMATION

New Mexico Environment Department (NMED)

Office of the State Engineer/Interstate Stream Commission (OSE/ISC)

SUMMARY

Synopsis of Bill

HB 581 appropriates $50.0 from the general fund to the OSE for expenditure in FY 2000 to dredge, rechannel, and clear beaver dams in Costilla Creek in Amalia and below the Cerro Diversion Dam in Taos County. Any unexpended or unencumbered balance remaining at the end of FY 2000 shall revert to the general fund.

Significant Issues

According to the OSE, work is needed to clear obstructions from the channel of the Costilla Creek. Beaver dams below the Cerro Diversion Dam have completely obstructed the channel and will cause flooding and property damage if significant runoff is experienced prior to clearing or breaching the obstructions. In addition, the OSE states that this work will require federal clean water act permits. No estimate has been made of the actual work that needs to be performed nor the cost of that work.

FISCAL IMPLICATIONS

The fiscal impact includes the $50.0 general fund appropriation plus the costs for OSE staff to make the necessary arrangements for the work to be performed.

ADMINISTRATIVE IMPLICATIONS

In assessing the work that is needed, OSE has several options to consider:

1. Preparing bid documents or hiring an engineer to prepare bid documents to have the work performed by a contractor;

2. Entering into a joint powers for another government entity to perform the work;

3. Obtaining the necessary permits from the U.S.Army Corps of Engineers and the New Mexico Environment Department required for dredge and fill work; and

4. Overseeing the performance of the work.

DUPLICATION, CONFLICT, COMPANIONSHIP OR RELATIONSHIP

According to the NMED, HB 581 appears to conflict with the federal Clean Water Act (33 U.S.C. 1251 et seq.) and the New Mexico Water Quality Act (74-6-1 through 74-6-17 NMSA 1978). Any water quality standards exceedence resulting from the proposed work would be in violation of both acts.

TECHNICAL ISSUES

The NMED confirmed that Costilla Creek is designated as segment 2120 of the New Mexico Standards for Interstate and Intrastate Streams (Standards). Designated uses include domestic water supply, fish culture, high quality coldwater fishery, irrigation, livestock watering, wild life habitat and secondary contact. The NMED believes the dredging or rechanneling of Costilla Creek could lead to excessive turbidity, which is the creation of muddy water caused from sediment and foreign particles flowing through it.

Additionally, NMED feels that dredging or rechanneling Costilla Creek will cause degradation to the channel and promote erosion of exposed banks. Currently, the banks are fully vegetated with mature cottonwoods and willows.

ALTERNATIVES

The NMED offered as one alternative removing the beaver dams using hand tools, rather than using heavy equipment or dynamite as was discussed by the ISC, the NMED Surface Water Quality Bureau, the New Mexico Game and Fish Department and the U.S. Fish and Wildlife Service. It is believed that heavy equipment entrance into the area would damage private property.

The OSE proposed having the local water users make necessary arrangements to clear obstructions from the channel.

CONSEQUENCES OF NOT ENACTING THIS BILL

The NMED maintains that the river bank area would stay in good condition, while the OSE counters

that the channel obstructions will cause overbank flooding and property damage, the extent of which is not known.

RP/njw