{ "id": 1224667, "name": "The REGENTS OF THE UNIVERSITY OF CALIFORNIA, Appellant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee", "name_abbreviation": "Regents of University of California v. New Mexico Water Quality Control Commission", "decision_date": "2004-04-28", "docket_number": "No. 23,498", "first_page": "45", "last_page": "53", "citations": [ { "type": "official", "cite": "136 N.M. 45" }, { "type": "parallel", "cite": "94 P.3d 788" }, { "type": "parallel", "cite": "2004-NMCA-073" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "84 P.3d 669", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "135 N.M. 52", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2003-NMCERT-003", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2003-NMCA-141", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 77185 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0637-01" ] }, { "cite": "106 N.M. 651", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708432 ], "weight": 7, "pin_cites": [ { "page": "654" }, { "page": "27" }, { "page": "655" }, { "page": "28" }, { "page": "655" }, { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0651-01" ] }, { "cite": "100 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588544 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "189" }, { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0187-01" ] }, { "cite": "110 N.M. 568", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716978 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "571" }, { "page": "172" }, { "page": "572" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nm/110/0568-01" ] }, { "cite": "121 N.M. 764", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566662 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "768-69" }, { "page": "354-55" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0764-01" ] }, { "cite": "1998-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827330 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0413-01" ] }, { "cite": "121 N.M. 83", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566656 ], "weight": 2, "pin_cites": [ { "page": "90" }, { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/nm/121/0083-01" ] }, { "cite": "122 N.M. 618", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322289 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0618-01" ] }, { "cite": "1996-NMSC-078", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b617" } ], "opinion_index": 0 }, { "cite": "88 N.M. 201", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2841081 ], "weight": 2, "pin_cites": [ { "page": "204-05" }, { "page": "224-25" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0201-01" ] }, { "cite": "93 N.M. 546", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568735 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "552-53", "parenthetical": "approving a set of reasons \"similar\" to the \"rather general statements\" given in N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd." }, { "page": "291-92", "parenthetical": "approving a set of reasons \"similar\" to the \"rather general statements\" given in N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd." }, { "page": "552-53" }, { "page": "291-92", "parenthetical": "rejecting an argument that the Commission failed to comply with City of Roswell when the Commission submitted a general statement of reasons and a record similar to the record presented here" } ], "opinion_index": 0, "case_paths": [ "/nm/93/0546-01" ] }, { "cite": "84 N.M. 561", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2771834 ], "weight": 11, "pin_cites": [ { "page": "565" }, { "page": "1241" }, { "page": "565" }, { "page": "1241" }, { "page": "565" }, { "page": "1241" }, { "page": "565" }, { "page": "1241" } ], "opinion_index": 0, "case_paths": [ "/nm/84/0561-01" ] }, { "cite": "107 N.M. 469", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1597125 ], "weight": 2, "pin_cites": [ { "page": "470-71" }, { "page": "162-63" } ], "opinion_index": 0, "case_paths": [ "/nm/107/0469-01" ] }, { "cite": "33 U.S.C. \u00a7 1313", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 8, "year": 2000, "pin_cites": [ { "page": "(c)(2)(B)" }, { "page": "(e)(3)" }, { "page": "(c)(2)(B)" }, { "page": "(e)(2)(A)" }, { "page": "(e)(2)(A)" }, { "page": "(c)(2)(A)" }, { "page": "(c)(2)(A)" }, { "page": "(c)(2)(A)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1095, "char_count": 28240, "ocr_confidence": 0.676, "pagerank": { "raw": 1.132315328375552e-07, "percentile": 0.5761279904735759 }, "sha256": "e3e00d0baae1af93ac276f255f70930ba62ecc4fcbfa8d5041b4ca8ffa5105b4", "simhash": "1:a6a38000aa4750e3", "word_count": 4435 }, "last_updated": "2023-07-14T15:28:59.278788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID and VIGIL, JJ., concur." ], "parties": [ "The REGENTS OF THE UNIVERSITY OF CALIFORNIA, Appellant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee." ], "opinions": [ { "text": "OPINION\nCASTILLO, J.\n{1} This case requires us to determine whether the New Mexico Water Quality Control Commission (Commission) appropriately adopted a sentence in the water quality standards amended in May 2002. The sentence, contained in 20.6.4.10.G NMAC (2002), reads as follows: \u201cThe human health standards for persistent toxic pollutants, as identified in Subsection M of Section 20.6.4.900 NMAC, shall also apply to all tributaries of waters with a designated, existing or attainable fishery use.\u201d Subsection M sets forth numeric criteria for persistent toxic pollutants. The Regents of the University of California (Regents), on behalf of Los Alamos National Laboratory (LANL), challenge the Commission\u2019s adoption of the sentence as arbitrary, capricious, lacking substantial evidence, and being contrary to law. We affirm.\nI. BACKGROUND\n{2} Several interrelated provisions of state and federal law and regulations form the framework for regulating toxic pollutants in surface water. The federal Clean Water Act requires states to establish criteria for specified toxic pollutants, \u201cthe discharge or presence of which in the affected waters could reasonably be expected to interfere with those designated uses adopted by the State, as necessary to support such designated uses.\u201d 33 U.S.C. \u00a7 1313(c)(2)(B) (2000). The Clean Water Act further requires the United States Environmental Protection Agency (EPA) to impose its own criteria if a state\u2019s standards fail to comply with the act. 33 U.S.C. \u00a7 1313(e)(3). Pursuant to the Clean Water Act, EPA has published its own numeric criteria for priority toxic pollutants and other regulations to implement the act\u2019s statutory requirements.\n{3} New Mexico\u2019s Water Quality Act, NMSA 1978, \u00a7\u00a7 74-6-1 to -17 (1967, as amended through 2003) establishes the Commission as the \u201cstate water pollution control agency ... for all purposes of the federal [Clean Water] act.\u201d Section 74-6-3(E). The Water Quality Act mandates that the Commission \u201ctake all action necessary and appropriate to secure to this state ... the benefits of [the] act.\u201d Section 74-6-3(E). The Water Quality Act also authorizes the Commission to adopt surface water quality standards (standards), including water quality criteria to protect designated uses of surface waters. Section 74-6^4(C). The Commission has applied criteria as necessary to \u201csecure to this state ... the benefits of [the federal Clean Water Act].\u201d One such benefit is that a state can adopt its own toxic pollutant criteria, rather than having the criteria imposed by the EPA.\n{4} The Commission is administratively attached to the New Mexico Environment Department (Department). Section 74-6-3(F). The Department recommends for the Commission\u2019s approval those revisions to the state\u2019s water quality standards that are necessary to comply with state and federal law and regulations. On November 29, 2001, the Department\u2019s Surface Water Quality Bureau petitioned the Commission to adopt a series of amendments to certain sections of the standards. The amended standards were proposed in response to a warning issued by the EPA that the state would be out of compliance with 33 U.S.C. \u00a7 1313(c)(2)(B) of the Clean Water Act unless it adopted numeric criteria for priority toxic pollutants or demonstrated to the EPA\u2019s satisfaction that such criteria were not needed; failure of the state to do so would risk the EPA\u2019s imposing more stringent numeric criteria on New Mexico.\n{5} The proposed amended standards included the second sentence of 20.6.4.10.G NMAC, which applied the human health standards for persistent toxic pollutants to all tributaries of waters with a designated, existing, or attainable fishery use. These persistent toxic pollutants include \u201csome of the most ... dangerous chemicals and heavy metals\u201d known to exist, \u201cincluding dioxins and toxaphene, DDT, PCBs, chlordane, benzopyrene, aldrin/dieldrin, hexacholorbenzene, and tetracholorethylene.\u201d\n{6} In accord with proper procedure, the Commission scheduled a public hearing on the proposed amendments; the Department gave timely notice of the hearing through publication and direct notice to interested parties. Prior to the hearing, the Department met with a range of entities, including LANL, and solicited input on the amendments. The Department made certain modifications to the amendments as a result of the meetings. The hearing on the modified amendments was held on March 13 and 14, 2002; representatives of the Department, Regents, the San Juan Water Commission, the Forest Guardians, and a consultant with the Elephant Butte Irrigation District testified on various provisions and submitted written testimony. The New Mexico Mining Association, the United States Department of the Interior, the Pueblo of Isleta, and the New Mexico Municipal Environmental Quality Association submitted written testimony only.\n{7} At the Commission\u2019s May 2002 meeting, after deliberation and discussion, the Commission unanimously adopted the amended standards with minor changes not relevant to this opinion. The Commission subsequently issued an order to that effect and a statement of reasons for adopting the amendments. Regents appealed-the adoption of the second sentence of 20.6.4.10.G NMAC to this Court pursuant to the Water Quality Act. See Section 74-6-7(A) (stating that appeals from regulations adopted by the Commission are taken to this Court).\nII. DISCUSSION\nA. Standard of Review\n{8} We are required to set aside the Commission\u2019s action if we find it to be \u201c(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law.\u201d Section 74-6-7(B); see Tenneco Oil Co. v. Water Quality Control Comm\u2019n, 107 N.M. 469, 470-71, 760 P.2d 161, 162-63 (Ct.App.1988).\n{9} We first address whether the Commission acted contrary to law. We then analyze whether there was substantial evidence for the Commission\u2019s action. Finally, we determine if the action was arbitrary or capricious.\nB. The Commission Acted in Accord with Law\n{10} Regents\u2019 arguments that the Commission acted contrary to law fall into two categories. First, Regents argue that the Commission\u2019s statement of reasons does not comport with our case law in City of Roswell v. New Mexico Water Quality Control Commission, 84 N.M. 561, 565, 505 P.2d 1237, 1241 (Ct.App.1972). Second, Regents argue that the Commission failed to comply with statutory requirements of the Water Quality Act, \u00a7 74-6-4(0, (D) and \u00a7 74^6-6(A), (C), and the Clean Water Act, 33 U.S.C. \u00a7 1313(e)(2)(A). We are not persuaded by either set of arguments.\n1. Statement of Reasons\n{11} The Commission gave the following pertinent reasons for adopting the entire set of amendments to the standards:\n4. The changes approved herein to New Mexico\u2019s water quality standards protect public health and welfare, enhance the quality of New Mexico\u2019s waters, and serve the purposes of the Clean Water Act and the New Mexico Water Quality Act.\n5. The changes approved herein ... respect the use and value of the water for water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial and other purposes.\n6. The regulatory changes affected herein are designed to meet the EPA Guidelines.\n{12} Citing our decision in City of Roswell, 84 N.M. at 565, 505 P.2d at 1241, Regents complain that the reasons fail because they provide no insight into why the Commission adopted the second sentence of 20.6.4.10.G NMAC. Regents also assert that the statement of reasons does not specifically respond to the concerns about the sentence raised in the testimony of Regents and others. In City of Roswell, this Court concluded that we were unable to review from the record what the Commission relied upon in adopting the regulations under consideration in that case. Id. at 565, 505 P.2d at 1241. The record \u201creveal[ed] only the notice of the public hearing, the testimony of the various experts and others, some exhibits and the regulations.\u201d Id. We stated that we could not effectively review a decision \u201cunless the record indicate[d] what facts and circumstances were considered and the weight given to those facts and circumstances.\u201d Id. We held that formal findings were not required but that \u201cthe record must indicate the reasoning of the Commission and the basis on which it adopted the regulations.\u201d Id.\n{13} We disagree with Regents that the statement of reasons must state why the Commission adopted each individual provision of the standards or must respond to all concerns raised in testimony. Such a requirement would be unduly onerous for the Commission and unnecessary for the purposes of appellate review. City of Roswell does, however, require a record sufficient for appellate review. We observe that the Commission\u2019s statement of reasons for adopting the regulations is quite general, more so than approved in other cases. See Bokum Res. Corp. v. N.M. Water Quality Control Comm\u2019n, 93 N.M. 546, 552-53, 603 P.2d 285, 291-92 (1979) (approving a set of reasons \u201csimilar\u201d to the \u201crather general statements\u201d given in N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd.); N.M. Mun. League, Inc. v. N.M. Envtl. Improvement Bd., 88 N.M. 201, 204-05, 539 P.2d 221, 224-25 (Ct.App.1975) (listing the set of reasons for adopting regulations). Nevertheless, we believe it an adequate statement, albeit barely so.\n{14} Our review of the entire record in this case reveals it to be thorough and comprehensive; we are able to determine from the record the basis for the Commission\u2019s adoption of the regulations. In this regard, our ease is distinguishable from City of Roswell, where the record was insufficient for appellate review. City of Roswell, 84 N.M. at 565, 505 P.2d at 1241. Here, there are more than one thousand pages in the record proper, including five hundred pages of transcript, all exhibits, and several tapes of deliberations. The record shows that the Department\u2019s staff presented to the Commission substantial explanations of the purposes of the regulations, a section-by-section analysis, including 20.6.4.10.G NMAC, and twenty-one exhibits. The Commission heard Regents\u2019 cross-examination of the Department\u2019s staff, Regents\u2019 own testimony, and the Department\u2019s cross-examination of that testimony. Furthermore, on direct examination, the Department presented to the Commission a point-by-point rebuttal of Regents\u2019 arguments. Regents also presented written testimony and exhibits.' As a result of the hearing, the Department proposed additional changes to certain portions of the proposed amendments; Regents submitted comments on those changes. From the record containing oral testimony, written testimony, exhibits, comments, and statement of reasons, this Court has a sufficient foundation to perform its task of review. See Bokum Res. Corp., 93 N.M. at 552-53, 603 P.2d at 291-92 (rejecting an argument that the Commission failed to comply with City of Roswell when the Commission submitted a general statement of reasons and a record similar to the record presented here).\n2. Statutoiy Requirements\n{15} We now turn to Regents\u2019 contention that the Commission failed to comply with various statutes when it adopted the second sentence of 20.6.4.10.G NMAC. The entire section reads as follows:\nG. Human health standards shall apply to those waters with a designated, existing or attainable fishery use. The human health standards for persistent toxic pollutants, as identified in Subsection M of Section 20.6.4.900 NMAC, shall also apply to all tributaries of waters with a designated, existing or attainable fishery use.\n20.6.4.10.G NMAC.\n{16} Underlying Regents\u2019 statutory arguments is their concern that the Commission adopted standards to protect humans from consuming fish detrimental to human health but that the second sentence applies the standards to ephemeral tributaries without fish. Ephemeral tributaries, which contain water infrequently and generally as a result of storms or other precipitation events, are, by definition, unable to support a self-sustaining population of fish.\n{17} Regents argue that the Commission failed to designate a use for tributaries, as required under Section 74-6-4(C) of the Water Quality Act and 33 U.S.C. \u00a7 1313(e)(2)(A) of the Clean Water Act. Additionally, they argue that by applying the human health standards to tributaries, the Commission effectively designates to tributaries an unattainable fishery use. Lastly, they argue that the sentence adopted by the Commission is a regulation, as well as a standard, and that the Commission was therefore required to comply with the requirements for adopting regulations under Section 74-6-4(D), which it did not do. As part of the last argument, Regents contend that the Commission failed to provide statutorily required notice under Section 74-6-6(A), (C) when the Commission did not disclose that it would consider a regulation at its March 2002 hearing.\n{18} We consider each argument in turn by starting with the language of the statute. If the statute is clear and unambiguous, we apply its plain meaning. Sims v. Sims, 1996-NMSC-078, \u00b617, 122 N.M. 618, 930 P.2d 153. \u201cIn construing a statute, we assume that the legislative purpose is expressed by the ordinary meaning of the words used.\u201d Old Abe Co. v. N.M. Mining Comm\u2019n, 121 N.M. 83, 90, 908 P.2d 776, 783 (Ct.App.1995). When more than one section of a statute is involved, we consider the sections together to give effect to the legislature\u2019s intent. High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, \u00b6 5, 126 N.M. 413, 970 P.2d 599. In addition, \u201cin determining [legislative] intent we look to the language used and consider the statute\u2019s history and background.\u201d Key v. Chrysler Motors corp., 121 N.M. 764, 768-69, 918 P.2d 350, 354-55 (1996).\n{19} We turn now to Regents\u2019 first argument, that the Commission must, under state and federal law, designate a use for tributaries in its water quality standards. Section 74-6-4(C) of the Water Quality Act requires the Commission to\nadopt water quality standards for surface and ground waters ____ 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.\n{20} The Clean Water Act stipulates that standards \u201cshall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.\u201d 33 U.S.C. \u00a7 1313(c)(2)(A).\n{21} We are somewhat puzzled with Regents\u2019 argument that the Commission failed to designate a use for tributaries; the preexisting water quality standards do designate such a use. The standards protect water quality in ephemeral streams for livestock watering and wildlife habitat uses. 20.6.4.10.A NMAC. The Department initially contended in its answer brief that it could assign criteria without designating a use. At oral argument, however, the Department clarified that the second sentence of 20.6.4.10.G NMAC provides additional protective criteria for the already existing uses of tributaries, as well as adding further protective criteria for waters with designated fishery uses. We observe that the Department\u2019s testimony to the Commission also referred to the pre-existing designated uses for tributaries. In light of the existence of these designated uses, we need not further address Regents\u2019 contention that a use was not designated or the Department\u2019s initial theory that a designation was not required.\n{22} If Regents are implying that Section 74-6-4(C) requires the Commission to designate a fishery use for ephemeral tributaries before applying , the human health standards to them, we disagree. We find nothing in the plain language of Section 74-6-4(C) or 33 U.S.C. \u00a7 1313(c)(2)(A) that prohibits the Commission from protecting waters with fishery uses by applying the standards to tributaries of those waters. Regents conceded as much when they testified they did not believe either the Water Quality Act or the Clean Water Act prohibited the Commission from adopting the criteria for ephemeral streams.\n{23} The EPA\u2019s approval of 20.6.4.10.G NMAC reinforces our view that the Commission acted properly in adopting the second sentence. In its review of the adopted regulations, the EPA advised the Department that it was within the state\u2019s authority under the Clean Water Act to apply the numeric criteria to ephemeral tributaries in order to protect downstream uses. The EPA noted that the tributaries may not support permanent fish populations and observed that although the state\u2019s approach is a restrictive one when applied statewide, it is nevertheless legal under the Clean Water Act. The Department informed this Court of the EPA\u2019s decision, pursuant to Rule 12-213(D)(2) NMRA 2004. We conclude that based on the plain language of both the state and federal statutes, the Department did not act contrary to \u00a7 74-6-4(C) or 33 U.S.C. \u00a7 1313(c)(2)(A) when it adopted the second sentence.\n{24} Nor do we believe that the Commission has designated a fishery use for tributaries by applying the human health standards to them. As we discussed above, the standards apply livestock watering and wildlife habitat uses to ephemeral tributaries; there is no indication that the Commission has added to those uses.\n{25} We now turn to Regents\u2019 argument that the second sentence is a regulation and that the Commission must therefore comply with Section 76-4-6(D). Section 76-4-6(D) requires the Commission to consider, among other things, the technical practicability and economic reasonableness of a regulation before adopting it. Both parties agree that a standard defines the amount of contaminant in the ambient water and that a regulation defines the conduct necessary for an entity that discharges pollutants to comply with the standard. In this ease, the entity is Regents. Regents contend the \u201csubstance, character, and effect\u201d of the second sentence define their conduct because the sentence regulates the effluent Regents may discharge from a pipe.\n{26} Criteria are not directly applied to a discharge; they are applied to ambient water. The criteria are just a measure for determining water quality in a stream. Regents reason, however, that since ephemeral streams are frequently dry, at most times, the only water in the ephemeral streams will be the effluent released by dischargers. As a result, they assert, the standard will have to be met at the end of the pipe. An effluent is defined in pertinent part as \u201c[a] discharge of liquid waste, as from [a pipe of] a factory or nuclear plant.\u201d The American Heritage Dictionary of the English Language 570 (4th ed.2000).\n{27} We disagree that the second sentence regulates the effluent. As the Department explained, there is quite a distinction between setting water quality standards and setting effluent limits. There is a specific procedure for setting effluent limits for a discharger under the Clean Water Act. Regents\u2019 argument discounts that procedure. Any point source discharging a pollutant into a body of water is required to obtain a permit issued by the EPA, in accordance with the National Pollutant Discharge Elimination System (NPDES). Effluent limits for these permits are typically based on the best available technology. After the technology-based effluent limit is set, the EPA considers a state\u2019s water quality standards in order to determine whether the effluent limit meets those standards. Only if the technology-based limits are insufficient to meet those water quality standards is the NPDES permit required to be changed to impose more stringent effluent limits. Regents speculated at the hearing that the EPA might alter Regents\u2019 NPDES permit to reflect the state\u2019s human health standards for tributaries. That the federal government might ultimately impose more stringent effluent limits in Regents\u2019 permit does not support a conclusion that the state\u2019s standard is consequently a regulation. Regents\u2019 argument fails.\n{28} Regents further contend that they received inadequate notice under 74-6-6(A), (C) because the Commission failed to disclose in its published notice that a regulation as opposed to a standard would be considered at the hearing. Section 74-6-6 sets forth the notice and hearing requirements, which are the same for standards or regulations. Regents do not dispute that they received direct as well as constructive notice of the petition and hearing. In addition, as noted above, the Department met with Regents prior to the hearing to discuss the proposed amendments. Regents\u2019 claim, then, is solely that the content of the notice failed to indicate a regulation was under consideration. However, we have concluded that the second sentence is not a regulation. Accordingly, we hold that the Commission complied with Section 74-6-6(A), (C).\nC. There Was Substantial Evidence for the Commission\u2019s Action\n{29} \u2019\u2019Substantial evidence supporting administrative agency action is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.\u201d Oil Transp. Co. v. N.M. State Corp. Comm\u2019n, 110 N.M. 568, 571, 798 P.2d 169, 172 (1990); Wolfley v. Real Estate Comm\u2019n, 100 N.M. 187, 189, 668 P.2d 303, 305 (1983). We review the whole record, considering evidence both favorable and unfavorable, to determine the sufficiency of the evidence. Perkins v. Dep\u2019t of Human Servs., 106 N.M. 651, 654, 748 P.2d 24, 27 (Ct.App.1987). We do not reweigh the evidence but decide, on balance, whether there was substantial evidence to support the agency\u2019s decision. Id. at 655, 748 P.2d at 28.\n{30} At the March 2002 hearing, the Department emphasized that the purpose of the human health criteria is to protect humans from consuming fish \u201cwith toxic pollutants in their flesh.\u201d The Department clarified that the second sentence in 20.6.4.10.G NMAC only applies to fifteen pollutants, \u201cthe very worst of the worst of the toxic chemicals.\u201d \u201cThere is no good reason to release any of these [fifteen pollutants] into the watersheds of the state,\u201d the Department told the Commission. The Department testified that these persistent toxic pollutants pose a substantial risk over many lifetimes \u2014 that they adhere to sediments in ephemeral streams and are transported downstream to waters containing fish consumed by humans. The smallest sediments, which tend to pick up the greatest number of these contaminants, are most easily moved downstream. Some of the pollutants are bioaccumulative; that is, they \u201caccumulate in fish, which absorb them from the water and the aquatic organisms which they eat, who in turn have absorbed them from the water column and from the sediments. Over time, these pollutants bioaccumulate to concentrations which are dangerous to humans [who] consume the fish.\u201d Many of the ephemeral tributaries contain aquatic organisms but generally do not contain fish consumed by humans.\n{31} The Department presented data from the EPA that showed the presence of twenty priority toxic pollutants in effluent discharges, including DDT. The Department also presented its findings of high levels of PCBs and dioxin in ephemeral storm waters on LANL property and in fish caught in Cochiti Reservoir. While clarifying that it was not implying a causal relationship between the presence of the pollutants in these two locations, the Department indicated that the findings show the pollutants currently exist in both ephemeral streams and in fishery waters. The Department testified that the second sentence was designed to ensure that certain highly persistent toxics do not reach fishery waters. The Department further explained the inadequacy of the current strategies to control these toxics and that \u201ca different strategy is needed\u201d for persistent toxic pollutants. That strategy, the Department stated, is applying numeric criteria for persistent toxic pollutants to the tributary itself.\n{32} Regents countered that existing programs, including the issuance of storm water permits, are effective tools to protect downstream fishery waters; the tools just need to be utilized to the fullest extent possible. However, according to the Department, the existing approaches only apply when discharges routinely reach downstream waters. The Department explained that these approaches create \u201ca very large loophole in the standards\u201d because they exclude discharges that reach the downstream waters during storms or other runoff events. Regents also insisted that the Department\u2019s findings of persistent toxic pollutants rely \u201con a very narrow and sparse data set,\u201d which can have biased results; Regents requested further data and study. It stated that although PCBs have been found in fish, the level of the toxic is not harmful to human health.\n{33} As an alternative to a blanket application of the numeric criteria to tributaries, Regents urged the Department to wait until it finds a risk to human health in fishery waters, then find the source of the problem and work with the discharger to come to a solution. Regents agreed their approach could be described, in their words, \u201cas waiting until the horse is out of the barn before you deal with the problem.\u201d They acknowledged that while studies are pursued, precipitation events continue and rainfall runoff flows down from an ephemeral stream on their property to a fishery water. Regents also conceded that it is essentially a policy choice for the Commission whether to accept their approach to protecting downstream uses or to adopt the Department\u2019s approach.\n{34} We reiterate that in reviewing for substantial evidence, although we consider the evidence on both sides of the issue, we affirm if there is substantial evidence supporting the Commission\u2019s decision. We find in the whole record ample evidence to affirm.\nD. The Commission\u2019s Action Was Not Arbitrary or Capricious\n{35} An action is arbitrary or capricious if it is \u201cunreasonable, irrational, wilful, and does not result from a sifting process.\u201d Oil Tmnsp. Co., 110 N.M. at 572, 798 P.2d at 173. We may find an action arbitrary or capricious if there is \u201cno rational connection between the facts found and the choices made.\u201d Colonias Dev. Council v. Rhino Envtl. Servs., Inc., 2003-NMCA-141, \u00b6 5, 134 N.M. 637, 81 P.3d 580 (internal quotation marks and citation omitted), cert. granted, 2003-NMCERT-003, 135 N.M. 52, 84 P.3d 669; Perkins, 106 N.M. at 655, 748 P.2d at 28. Even if a different conclusion might have been reached from the facts, the choice made \u201cis not arbitrary or capricious if exercised honestly and upon due consideration.\u201d Id.\n{36} We do not find the adoption of the second sentence arbitrary or capricious. The Commission made the decision to adopt the sentence after evidence was presented that persistent toxic pollutants exist in ephemeral streams in New Mexico, that these pollutants may flow into fishery waters as a result of storms or other precipitation events, and that the pollutants in sufficient quantities are harmful to human health. We find the decision to adopt the sentence both reasoned and rational; that there were possibly other choices available to the Commission to protect downstream waters from persistent toxic pollutants does not make the decision arbitrary or capricious.\nIII. CONCLUSION\n{37} We affirm the Commission\u2019s adoption of the second sentence of 20.6.4.10.G NMAC, which applies the human health standards to tributaries of fishery waters.\n{38} IT IS SO ORDERED.\nALARID and VIGIL, JJ., concur.", "type": "majority", "author": "CASTILLO, J." } ], "attorneys": [ "Louis W. Rose, Jeff L. Martin, Montgomery & Andrews, P.A., Santa Fe, Deborah K. Woitte, N. Philip Wardwell, Office of Laboratory Counsel, Los Alamos National Laboratory, Los Alamos, for Appellant.", "Patricia A. Madrid, Attorney General, Zachary Shandler, Assistant Attorney General, Eric Ames, Special Assistant Attorney General, Santa Fe, for Appellee." ], "corrections": "", "head_matter": "2004-NMCA-073\n94 P.3d 788\nThe REGENTS OF THE UNIVERSITY OF CALIFORNIA, Appellant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee.\nNo. 23,498.\nCourt of Appeals of New Mexico.\nApril 28, 2004.\nLouis W. Rose, Jeff L. Martin, Montgomery & Andrews, P.A., Santa Fe, Deborah K. Woitte, N. Philip Wardwell, Office of Laboratory Counsel, Los Alamos National Laboratory, Los Alamos, for Appellant.\nPatricia A. Madrid, Attorney General, Zachary Shandler, Assistant Attorney General, Eric Ames, Special Assistant Attorney General, Santa Fe, for Appellee." }, "file_name": "0045-01", "first_page_order": 77, "last_page_order": 85 }