State of California et al v. Trump et al

Filing 176

MOTION for Partial Summary Judgment filed by State of California, State of New Mexico. Responses due by 6/19/2019. Replies due by 6/24/2019. (Attachments: # 1 Proposed Order Proposed Order Granting Plaintiff States of California and New Mexico's Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002, # 2 Appendix Appendix of Declarations re Enviromental Harms in Support of Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002, # 3 Plaintiff States of California and New Mexico's Request for Judicial Notice in Support of Motion for Partial Summary Judgment Regarding Sections 284, 8005, and 9002)(Sherman, Lee) (Filed on 6/12/2019) Modified on 6/13/2019 (cpS, COURT STAFF).

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II
LEE I. SHERMAN (SBN 272271)
Deputy Attorneys General
300 S. Spring St., Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Plaintiff State of California

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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STATE OF CALIFORNIA et al.;

Case No. 4:19-cv-00872-HSG

Plaintiffs, PLAINTIFF STATES OF CALIFORNIA
AND NEW MEXICO’S REQUEST FOR
v.
JUDICIAL NOTICE IN SUPPORT OF
MOTION FOR PARTIAL SUMMARY
JUDGMENT REGARDING SECTIONS
DONALD J. TRUMP, in his official capacity 284, 8005, AND 9002
as President of the United States of America
et al.;
Judge:
Honorable Haywood S. Gilliam,
Jr.
Defendants. Trial Date:
None Set
Action Filed: February 18, 2019

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Pl. States of California and New Mexico’s RJN in Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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Plaintiffs hereby respectfully request, pursuant to Federal Rule of Evidence 201, that this
Court take judicial notice of the following documents:
1. Attached hereto as Exhibit 1 is a true and correct copy of a May 10, 2019, letter to David

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L. Norquist, Under Secretary of Defense, Comptroller, Department of Defense, from the

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House of Representatives Committee on Appropriations, concerning a requested

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reprogramming action, FY 19-02RA.

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2. Attached hereto as Exhibit 2 is a true and correct copy of an excerpt from a page of the

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U.S. Department of Defense’s website entitled “Contracts for May 15, 2019.” As of June

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11, 2019, the full website is accessible at

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https://dod.defense.gov/News/Contracts/Contract-View/Article/1848882/.
3. Attached hereto as Exhibit 3 is a true and correct copy of an October 2, 2013, Order for

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Technically-Conditioned Certification from the California Water Boards to U.S. Customs

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and Border Protection.

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4. Attached hereto as Exhibit 4 is a true and correct copy of Imperial County Air Pollution

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Control District Rule 801. As of June 11, 2019, this document is posted on the Imperial

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County Air Pollution Control District’s website at

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https://www.co.imperial.ca.us/AirPollution/RULEBOOK/RULES/1RULE801.pdf.

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5. Attached hereto as Exhibit 5 is a true and correct copy of a page from the California Air

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Resources Board’s website entitled “Particulate Matter Program.” As of June 12, 2019,

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this page is accessible at https://www.arb.ca.gov/pm/pm.htm.

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6. Attached hereto as Exhibit 6 is a true and correct copy of an excerpt from the Flat-Tailed

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Horned Lizard Rangewide Management Strategy, 2003 Revision, prepared by members of

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the Flat-tailed Horned Lizard Interagency Coordinating Committee, which included

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representatives from the U.S. Fish and Wildlife Service and the U.S. Bureau of Land

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Management. As of June 11, 2019, the document is posted on the U.S. Fish and Wildlife

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Service’s website at

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https://www.fws.gov/carlsbad/TEspecies/Documents/Flattailed_horned_lizard/PDFs/RMS

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%20-%20Final%202003.pdf.
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Pl. States of California and New Mexico’s RJN in Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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7. Attached hereto as Exhibit 7 is a true and correct copy of the High Wind Fugitive Dust

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Mitigation Plan for Doña Ana and Luna Counties. As of June 11, 2019, this document is

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posted on the New Mexico Environment Department’s website at

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https://www.env.nm.gov/wp-

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content/uploads/2018/12/DAC_and_Luna_County_DMP.pdf.

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8. Attached hereto as Exhibit 8 is a true and correct copy of the Declaration of Paul

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Arcangeli, filed in U.S. House of Representatives v. Mnuchin, et al., Case No. 1:19-cv-

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00969, Dist. D.C., ECF Document 44-1.

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9. Attached hereto as Exhibit 9 is a true and correct copy of a September 28, 2018 letter and

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memorandum from President Trump to the Speaker of the House of Representatives and

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President of the Senate relating to “Designation of Funding for Overseas Contingency

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Operations/Global War on Terrorism.” As of June 11, 2019, this document is posted on

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the White House’s website at https://www.whitehouse.gov/wp-

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content/uploads/2018/09/OCO-Designation-Package-9.28.18_signed.pdf.

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These exhibits are matters of public record and therefore subject to judicial notice. Fed.

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R. Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (a court may

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judicially notice matters of public record unless the matter is a fact subject to reasonable dispute).

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Exhibit 8 is judicially noticeable because it is a court record from a proceeding that

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addresses issues relevant to this litigation. U.S. ex rel. Robinson Rancheria Citizens Council v.

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Boreno, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (holding that a court “may take notice of

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proceedings in other courts, both within and without the federal judicial system, if those

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proceedings have a direct relation to matters at issue”).

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Exhibits 1-7 and 9 are judicially noticeable because government memoranda, bulletins,

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letters, statements and opinions are matters of public record appropriate for judicial notice. See

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Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005) (judicially noticing an administrative

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bulletin); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) (court may

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take judicial notice of records and reports of state administrative bodies), overruled on other

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grounds by Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 111 (1991); Interstate Nat.
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Pl. States of California and New Mexico’s RJN in Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953) (judicially noticing government

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agency records and reports); Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 520 nn.5, 8, 11

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(N.D. Cal. 2017) (taking judicial notice of government memoranda and letters).

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Exhibits 2, 4-7, and 9 are also judicially noticeable because they are posted on official

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government websites. See Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir.

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2010) (judicially noticing information contained on a government website); Paralyzed Veterans

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of America v. McPherson, No. C 06–4670 SBA, 2008 WL 4183981, at *5 (N.D. Cal. Sept. 9,

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2008) (finding that courts commonly take judicial notice of information and documents on

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government websites, citing cases from various jurisdictions). Thus, the statements of

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government departments and agencies contained within this exhibit are not subject to reasonable

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dispute, as the statements “can be accurately and readily determined from sources whose

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accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2).

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Exhibits 1-9 are judicially noticeable because the statements of government officials or

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entities contained within these exhibits are not subject to reasonable dispute, as the statements

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“can be accurately and readily determined from sources whose accuracy cannot reasonably be

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questioned.” Fed. R. Evid. § 201(b)(2).

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Pl. States of California and New Mexico’s RJN in Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

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Dated: June 12, 2019

Respectfully submitted,

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XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
SALLY MAGNANI
MICHAEL L. NEWMAN
Senior Assistant Attorneys General
MICHAEL P. CAYABAN
CHRISTINE CHUANG
EDWARD H. OCHOA
Supervising Deputy Attorneys General
BRIAN J. BILFORD
NOAH M. GOLDEN-KRASNER
SPARSH S. KHANDESHI
HEATHER C. LESLIE
JANELLE M. SMITH
JAMES F. ZAHRADKA II

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/s/ Lee I. Sherman
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LEE I. SHERMAN
Deputy Attorneys General
Attorneys for Plaintiff State of California

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SD2019100647
53490141.docx

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Pl. States of California and New Mexico’s RJN in Supp. of Mot. for Partial Summ. J. (4:19-cv-00872-HSG)

EXHIBIT 1

NITA M . LOWEY, NEW YORK. CttAIIIWDWIN

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MIKE OIJIOLEY, IWNOIS
llUllC ICILMUI. WAIIIINOTON
MATT CAll'MIIIGHT. l'fNNfflV,Vjl,\

<rongrrss of tht ilnittd ~tatr.s
ttousr or 'Rrprtsrntatium
d:ommitttr on 2lppropriations
iffl!J0shin11ton, i>~ 20515-6015

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AIAIUC l'OCAH, WISCONSIN
ICATHDIINEM.ClAAIC. MASMDM EffJ

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May LO, 2019

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EDCASE, HAWAII

The Honorable David L. Norquist
Under Secretary of Defense, Comptroller
Department of Defense
Washington, D.C. 2030 I
Dear Mr. Secretary:
The Committee has received and reviewed the requested reprogramming action, FY 1902RA, submitted to the Committee on May 10, 2019, which proposes the transfer of$l.5 billion
from the following fiscal year 2019 accounts: all Military Personnel accounts, the Air Force
procurement accounts, the Chemical Agent and Munitions account, and the Afghan Security
Forces Fund to the Drug Interdiction and Counter Drug Activities account for the purposes of
erecting a wall on the U.S. southern border.

The Committee denies the request.
The Defense Appropriations Act of 20 l 9 was enacted on September 28, 2018. and
inherent in the enactment is the specific allocation of appropriations and the execution of funds
as called for under the Constitution between the Congress and the Executive branch. Article I
states, "No Money shall be drawn from the Treasury, but in Consequence of Appropriations
made by Law". The reprogramming transmitted by the Department denies the Congress and the
Committee on Appropriations those stated Constitutional prerogatives; these funds were neither
requested nor appropriated for the activities described in the reprogramming. With this
unilateral action, the historic and unprecedented comity that has existed between the Committee
and the Department has been breached.

Defense Subcommittee.

EXHIBIT 2

ARMY
Southwest Valley Constructors, Albuquerque, New Mexico, was awarded a
$646,000,000 firm-fixed-price contract for design and build of Tucson Sector barrier
wall replacement project. Four bids were solicited with four bids received. Work will
be performed in Tucson, Arizona, with an estimated completion date of Jan. 31, 2020.
Fiscal 2019 operations and maintenance, Army funds in the amount of $646,000,000
were obligated at the time of the award. U.S. Army Corps of Engineers, Albuquerque,
New Mexico, is the contracting activity (W912PL-19-C-0015).
BFBC LLC, Bozeman, Montana, was awarded a $141,750,000 firm-fixed-price
4 75
p
contract for design and build of El Centro Project 1 and Yuma Project 1 vehicle and
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pedestrian barrier replacement. Nine bids were solicited with four bids received.
p
Work will be performed in El Centro, California; and Yuma, Arizona, with an
p
estimated completion date of Jan. 31, 2020. Fiscal 2019 operations and maintenance,
p
3
9 p
Army funds in the amount of $141,750,000 were obligated at the time of the award.
U.S. Army Corps of Engineers, Albuquerque, New Mexico, is the contracting activity
(W912PL-19-C-0014).
Mitchco International Inc.,* Louisville, Kentucky, was awarded a $94,250,932 firmfixed-price contract for full food services and dining facility attendants at Fort Sill,
Oklahoma. Bids were solicited via the internet with seven received. Work locations
and funding will be determined with each order, with an estimated completion date of
May 14, 2024. U.S. Army Mission and Installation Contracting Command, Fort Sam
Houston, Texas, is the contracting activity (W9124J-19-D-0012).
General Dynamics Ordnance and Tactical Systems, St. Petersburg, Florida, was
awarded a $92,400,000 modification (P00003) to Foreign Military Sales (Iraq)
contract W15QKN-18-D0020 for 120mm munition high explosive with tracer tank
ammunition cartridges. Work locations and funding will be determined with each
order, with an estimated completion date of Oct. 16, 2022. U.S. Army Contracting
Command, New Jersey, is the contracting activity.
Trend Construction Inc.,* Orlando, Florida, was awarded a $45,000,000 firm-fixedprice contract for general construction. Bids were solicited via the internet with 20
received. Work locations and funding will be determined with each order, with an
estimated completion date of May 14, 2024. U.S. Army Corps of Engineers, Savannah,
Georgia, is the contracting activity (W912HN-19-D-4000).
Jacobs Government Services Co., Arlington, Virginia, was awarded a $15,394,247
firm-fixed-price contract for architect and engineering services. Bids were solicited
via the internet with six received. Work will be performed in Arlington, Virginia, with
an estimated completion date of June 14, 2026. Fiscal 2019 military construction;
and other funds in the amount of $15,394,247 were obligated at the time of the
award. U.S. Army Corps of Engineers, Pyeongtaek, Republic of Korea, is the
contracting activity (W912UM-19-C-0006).
Dubuque Barge & Fleeting Service Co., doing business as Newt Marine,* Dubuque,

EXHIBIT 3

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Water Boards

,.....,..

EOMUNU

G.

BROWN JR .

GOVE'RNOR

MATTHEW RODRIQUEZ
SECAETMY FOR
EN\l'IRONM5NTAL PAOTli.CllO,,.

Colorado River Basin Regional Water Quality Control Board

October 2, 2013

Mr. Paul Enriquez
U.S. Customs and Border Protection
24000 Avila Road, Suite 5020
Laguna Niguel, CA 92677
RE:

ORDER FOR TECHNICALLY-CONDITIONED CLEAN WATER ACT SECTION
401 WATER QUALITY CERTIFICATION FOR DISCHARGE OF DREDGED
AND/OR FILL MATERIALS

PROJECT:

U.S. Customs and Border Protection (CBP) Project - West Desert AllWeather Road, Phase B, El Centro - Imperial County, WDID No.
7A333133001

APPLICANT: U.S. Customs and Border Protection

1.

D

Order for Standard Certification

2.

~

Order for Technically-Conditioned Certification

3.

ACTION:

D

Order for Denial of Certification

STANDARD CONDITIONS:

The following standard conditions apply to all certification actions, except as noted
above under Action 3 for denials.
1. This certification action is subject to modification or revocation upon
administrative or judicial review, including review and amendment pursuant to
section 13330 of the California Water Code and section 3867 of Title 23 of the
California Code of Regulations (23 CCR) .
2. This certification action is not intended and shall not be construed to apply to any
discharge from any activity involving a hydroelectric facility requiring a Federal
Energy Regulatory Commission (FERC) license or an amendment to a FERC
license unless the pertinent certification application was filed pursuant to 23 CCR
ELLEN WAY, CHA I R I ROBERT PCRDUC, EXECUTIVE OFFIOEA

73-720 Fred Waring Drive. Suite 100, Palm Desert, CA 92260 I www.waterboards.ca.gov/coloradorlver

0

ftl!CYCLfD PAPl!R

U.S. Customs and Border Protection

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October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

section 3855(b) and the application specifically identified that a FERG license or
amendment to a FERG license for a hydroelectric facility was being sought.
3. The validity of any non-denial certification action (Actions 1 and 2) shall be
conditioned upon total payment of the full fee required under 23 CCR
section 3833, unless otherwise stated in writing by the certifying agency.
4. In the event of any violation or threatened violation of the conditions of this
certification, the violation or threatened violation shall be subject to any remedies,
penalties, process, or sanctions as provided for under State law. For purposes of
Clean Water Act (CWA) section 401 (d), the applicability of any State law
authorizing remedies, penalties, process, or sanctions for the violation or
threatened violation constitutes a limitation necessary to assure compliance with
the water quality standards and other pertinent requirements incorporated into
this Water Quality Certification (WQC).
a. In response to a suspected violation of any condition of this WQC, the
Colorado River basin Regional Water Quality Control Board (Regional Water
Board) may require the holder of any permit or license subject to this
certification to furnish, under penalty of perjury, any technical or monitoring
reports the Regional Water Board deems appropriate, provided that the
burden, including cost of the reports, shall be in reasonable relationship to the
need for the reports and the benefits to be obtained from the reports.
b. In response to any violation of the conditions of this WQC, the Regional
Water Board may add to or modify the conditions of this certification as
appropriate to ensure compliance.
ADDITIONAL CONDITIONS:

The following additional conditions apply to this certification:
1. This WQC applies towards the proposed project (Project) as described in the 401
application received by the Regional Water Board on May 17, 2013. The updated
information was provided on September 27, 2013.
2. The Applicant shall provide the Regional Water Board and other interested agencies
with written notification of any significant modifications made to the Project prior to
implementation of the modifications.
3. This WQC does not convey any property rights of any sort or any exclusive privileges,
nor does it authorize any injury to private property or any invasion of personal rights,
nor any infringement of federal, state, or local laws or regulations.

U.S. Customs and Border Protection

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October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

4. This WQC does not authorize the Applicant or any associated party to trespass on
any land or property unless the applicant has obtained written authorization or
acquired a special use authorization permit from the land or property owner.
5. A copy of this WQC shall be provided to the appropriate onsite Supervisor for the
Project. All personnel performing work on the proposed Project shall be familiar with
the content of this WQC. Copies of the WQC shall be readily available at the Project
site at all times during periods of active work and shall be presented to regulatory
agency representatives upon request.
6. The Applicant shall grant Regional Water Board staff, or an authorized
representative, upon presentation of credentials and other documents as may be
required by law, to enter the Project site at reasonable times, to ensure compliance
with the terms and conditions of this WQC and/or to determine the impacts the
Project may have on waters of the United States.
7. The proposed Project shall not be enlarged or extend beyond the proposed Project
impact area. The Applicant shall delineate the Project boundaries and staging areas
with stakes, flags and/or temporary construction fencing .
8. The area of vegetation and soil disturbance shall be restricted to the smallest extent
possible.
9. The Project shall not discharge substances in concentrations toxic to human, plant,
animal, or aquatic life or that produce detrimental physiological responses.
10. The Project shall not discharge waste classified as "hazardous" as defined in Title
23 California Code of Regulations (CCR) section 2521, California Health and Safety
Code section 25140, and Title 22, CCR, section 66260.10 et seq.
11 . No oil, petroleum products, or rubbish shall be allowed to enter into or be placed
where it may be washed by rainfall or runoff into waters of the United States.
12. No equipment maintenance will be done within or near any stream channel where
petroleum products or other pollutants from the equipment may enter waters of the
United States.
13. Equipment refueling shall not occur within waters of the United States.
14. Any oil or grease leaks shall be immediately cleaned up.

U.S. Customs and Border Protection
West Desert Phase B Project
WDID No. 7A333133001

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October 2, 2013

15. The Applicant shall ensure that all contaminated material and/or contaminated soil
removed or excavated from the Project site is properly loaded, transported, and
disposed of in accordance with Federal, State, and local regulations.
16. Staging/storage areas for equipment and materials shall be located outside of
waters of the United States.
17. The Applicant shall ensure that all disturbed and filled areas are adequately
stabilized and protected from erosion and siltation by implementing appropriate soil
stabilization, sedimentation and silt control measures.
18. Any flow diversion used during construction shall be designed in a manner to
prevent pollution, minimize siltation, and shall provide flows to downstream reaches.
Flows shall be maintained to support existing aquatic life and riparian wetlands and
habitat that may be located upstream and downstream from any temporary
diversion.
19. The Applicant shall restore drainages, to the greatest extent possible, to the original
bank configuration, stream bottom width, and channel gradient.
20. All temporary facilities and impacts shall be removed and restored to the preexisting
conditions and contours to the extent practicable.
21. Construction related materials and wastes shall be removed from the Project site
upon completion of the Project.
22. The Applicant shall submit Notice to the Regional Water Board within 60-days of
completion of the Project. The Notice shall include: 1) a detailed summary of the
mitigation and restoration activities implemented during the Project and 2) provide
photographic documentation that supports the information summarized in the Notice.
23. The Regional Water Board reserves the right to suspend, cancel, or modify and
reissue this WQC, after providing notice to the Applicant and/or responsible SiteSupervisor, if the Regional Water Board determines that the Project fails to comply
with any of the terms or conditions of this WQC.
24. The Applicant shall orally notify the Regional Water Board of any noncompliance
that may impact the beneficial uses of waters of the United States, as soon as
notification is possible and notification can be provided without substantially
impeding measures necessary to address the noncompliance.

U.S. Customs and Border Protection

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October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

REGIONAL WATER QUALITY CONTROL BOARD CONTACT PERSON:

If you have any questions, please contact Jay Mirpour, Water Resources Control
Engineer, at [phone] or [e-mail].
WATER QUALITY CERTIFICATION:

I hereby issue an order certifying that any discharge from the referenced Project will
comply with the applicable provisions of sections 301 (Effluent Limitations), 302 (Water
Quality Related Effluent Limitations), 303 (Water Quality Standards and Implementation
Plans), 306 (National Standards of Performance), and 307 (Toxic and Pretreatment
Effluent Standards) of the Clean Water Act, and with other applicable requirements of
State law.
Except insofar as may be modified by any preceding conditions, all certification actions
are contingent on (a) the discharge being limited and all proposed mitigation being
completed in strict compliance with the applicants' Project description and the attached
Project Information Sheet, and (b) compliance with all applicable requirements of the

~ ~ ~ u a l i t y C o n t r o l Plan (Basin Plan).

ROBERT ERDUE, Executive Officer
Colorado River Basin Regional Water Quality Control Board
JJM/

Enclosure: Project Information

cc:

Lanika Cervantes, USAGE Los Angeles District
Bill Orme, SWRCB, Division of Water Quality, Water Quality Certification Unit
Elizabeth Goldmann, U.S. Environmental Protection Agency, Region 9
Thomas A. Vandenberg, Office of Chief Counsel, SWRCB

File: U.S. Customs and Border Protection (CBP) Project - West Desert All-Weather
Road, Phase B, El Centro - Imperial County, WDID No. 7A333133001

U.S. Customs and Border Protection
West Desert Phase B Project
WDID No. 7A333133001

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October 2, 2013

PROJECT INFORMATION
Application Date:

Application was received by the Regional Water Board on
May 17, 2013. The updated information was provided to our
office on September 27, 2013.

Applicant:

U.S. Customs and Border Protection
Contact: Paul Enriquez, [phone]

Applicant
Representative:

Project Name:

CBP
Contact: John Petrilla, [phone]
U.S. Customs and Border Protection (CBP) Project - West
Desert All-Weather Road, Phase B El Centro - Imperial

County, WDID No. 7A333133001
Start and Completion:

The Project is scheduled to begin on October 1, 2013 and to
be completed in February 2014.

Project Description:

The purpose of the Project is to increase border security
within the United States Border Patrol (USBP) - El Centro
Sector with an ultimate objective of reducing illegal crossborder activity by providing safer and more efficient access
for USBP agents along the U.S./Mexico border in the west
desert area of the USBP - El Centro Station's area of
responsibility. The primary need for the Project is because
of the remoteness of the west desert area and the
impassability of the existing road, which creates long drive
times for agents to reach patrol areas and limits their ability
to assist with interdictions and apprehensions. An additional
need for the Project is to provide agents with the
infrastructure necessary to carry out USBP's mission .
The Project includes the improvement and construction,
operation, and maintenance of approximately 1.6 miles of allweather roads. The Project involves the improvement of an
existing border road and construction ofa new access road to
the top of BP Hill, where CBP operates a Remote Video
Surveillance System (RVSS) tower. The border road would
be improved to an all-weather surface road (1.4 miles long)
approximately 20 feet wide with 2-foot shoulders and would

U.S. Customs and Border Protection

-7-

October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

include any necessary drainage structures (i.e., culverts and
low-water crossings).
In addition to the 1.4 miles of road improvement, a new
access road (approximately 0.2 mile) leading to the BP Hill
RVSS tower from the improved border road would be
constructed. This road would be a 16-foot-wide road with
necessary drainage structures an include all-weather
surfacing. The total permanent footprint for the new access
road to BP Hill would be 30 feet wide by 0.2 mile long. The
temporary footprint would be 90 feet wide by 0.2 mile long.
Upon completion of the improvements and construction
activities, all temporarily disturbed areas would be
rehabilitated per SLM guidelines.
Project Location:

City or Area: El Centro, County: Imperial
Longitude/Latitude: Begins at N32° 38.89518, W115°
43.52994, Ends at N 32° 38.96544, W 115° 42.1974.
Township/Range: Section 26, Township 17 South, Range 12
East, San Bernardino Meridian.

Receiving Water(s):

Pinto Wash is located north of the project area in the Salton

Sea Watershed west of the Westside Main Canal and
between the U.S./Mexico border and California State Route
98. Water may flow through this ephemeral wash into the
Westside Main Canal, which eventually delivers water into
the Salton Sea, or into delivery canals and through

agricultural fields into drains and then into washes that flow
to the New River and eventually into the Salton Sea.
Project Impacts:

The Project would not result in a permanent impact to any
perennial or intermittent streams, as none are present within
the project corridor. At total of six juri~dictional ephemeral
Waters of the U.S. were identified during field surveys within
the project corridor. The six ephemeral washes that are
Waters of the U.S. would be traversed using concrete lowwater crossings, reinforced concrete pipes, or box culverts.
The expected total impact on those Waters of the U.S. is less
than 0.35 acre. Tables below show the approximate
permanent and temporary impacts in acres and linear feet to
each Waters of the U.S.

U.S. Customs and Border Protection

-8-

October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

Linear Feet of Impacts on Waters of the U.S.

Waters
Waters
Waters
Waters
Waters
Waters

U.S.
U.S.
U.S.
U.S.
U.S.
U.S.

1
2
3
4
5
6

Total

Permanent
(Feet)
79.48
99.45
93.91
47.45
72.42
49.19

Total (Feet)

719.13

of the
of the
of the
of the
of the
of the

Temporary
(Feet)
174.88
140.28
49.38
89.00
158.69
106.90

441.90

1,161.02

254.36
239.73
143.28
136.45
231.11
156.09

Acreage of Impacts on Waters of the U.S.

Waters
Waters
Waters
Waters
Waters
Waters

of the
of the
of the
of the
of the
of the

U.S.
U.S.
U.S.
U.S.
U.S.
U.S.

1
2
3
4
5
6

Total

Temporary
(Acre)
0.029
0.037
0.024
0.009
0.068
0.002

Permanent
(Acre)
0.014
0.034
0.072
0.005
0.031
0.001

Total (Acre)

0.169

0.156

0.326

0.043
0.071
0.095
0.014
0.099
0.003

The Project would not impact any surface water resource
sites (i.e., lakes or permanent water sources) with the
installation of the proposed roadway. Proper maintenance of
construction equipment and the use of Best Management ·
Practices (BMPs) during construction activities would
minimize the possibility of accidental spills of petroleum, oil,
and lubricants (POL) that, if they occurred, could affect
surface water and groundwater quality. Operation and
maintenance of the proposed roadways would have no effect
on the region's surface water or groundwater supplies and/or
quality.

Best Management
Practices:

US Customs and Border Protection will implement the BMPs
described in the Environmental Assessment Report.

U.S. Customs and Border Protection
West Desert Phase B Project
WDID No. 7A333133001

-9-

October 2, 2013

BMPs such as the installation of straw bales and silt fences,
will be employed to reduce or eliminate sedimentation or
erosion as a result of the construction activities.
Construction would not occur during the rainy season to
avoid erosion and sedimentation issues.
CSP will avoid contaminating natural aquatic systems with
runoff by limiting all equipment maintenance, staging,
laydown , and dispensing of fuel , oil, etc., to designated
upland areas.
No refueling or storage will take place within 100 feet of
drainages.
Additionally, a Storm Water Pollution Prevention Plan and
Spill Prevention Control and Countermeasure Plan will be
developed and maintained to ensure that all are aware of its
implementation requirements in the event of a spill.
All temporarily disturbed areas will be rehabilitated to its
original condition.
Additionally, native organic material would be collected and
stockpiled during construction to be used for erosion control
after construction while the areas naturally rehabilitate.
Placement of riprap would reduce stream velocities and
protect the drainage structure and downstream reaches from
erosional forces.
Federal Permit(s):

This Project was determined to fall under the U.S. Army
Corps of Engineers' Nationwide Permit Number 14 (Linear
Transportation Projects) .

Status of CEQA:

The Regional Water Board determined that the proposed
project is categorically exempt from CEQA pursuant to
CEQA Guidelines§ 15301 (Cal. Code Regs. , tit. 14, §
15301) (Existing Facilities) "Existing highways and streets,
sidewalks, gutters, bicycle and pedestrian trails, and similar
facilities (this includes road grading for the purpose of public
safety)."

U.S. Customs and Border Protection

- 10 -

October 2, 2013

West Desert Phase B Project
WDID No. 7A333133001

In addition to this exemption, the Regional Water Board
determined that the project is also categorically exempt from
CEQA pursuant to CEQA Guidelines § 15302 (Replacement
or Reconstruction) (Cal. Code Regs., tit. 14, § 15302). This
exemption applies to the replacement or reconstruction of
existing structures and facilities where the new structure will
be located on the same site as the structure replaced and
will have substantially the same purpose and capacity as the
structure replaced .
In accordance with CEQA Guidelines Section 15062, the
Regional Water Board shall file a Notice of Exemption with
the Office of Planning and Research upon approval of the
Clean Water Act Section 401 Water Quality Certification .

File:

U.S. Customs and Border Protection (CBP) Project - West Desert All-Weather
Road , Phase B, El Centro - Imperial County, WDID No. 7A333133001

EXHIBIT 4

Imperial County Air Pollution Control District
RULE 801

A.

Rule 801

CONSTRUCTION AND EARTHMOVING ACTIVITIES
(Adopted 11/08/2005)

Purpose
The purpose of this rule is to reduce the amount of fine Particulate Matter
p p
(PM-10) entrained in the ambient air as a result of emissions g
(
)
generated from
Construction and other Earthmoving Activities by requiring actions to prevent,
g
reduce, or mitigate PM-10 emissions.

B.

Applicability
This rule applies to any Construction and other Earthmoving Activities, including,
pp
y
g
g
but not limited to, land clearing, excavation related to construction, land leveling,
g
g
grading, cut and fill g
g
g
grading, erection or demolition of any structure, cutting and
g
y
g
filling, trenching, loading or unloading of bulk materials, demolishing, drilling,
g
g
g
g
g
g
adding to or removing bulk of materials from open storage piles, weed abatement
g
g
p
g p
through disking, back filling, travel on-site and travel on access roads to and from
g
the site.

C.

Definitions
The definitions of terms found in Rule 800 (General Requirements for Control of
Fine Particulate Matter (PM-10) shall apply to this rule.

D.

Exemptions
In addition to the exemptions listed in Rule 800, Section E, the following
exemptions are established for this rule:
D.1

Construction or demolition at existing single family residential dwellings.

D.2

The 20% opacity limit of Sections E.1.a and E.2.b shall not apply when
Wind Gusts exceed 25 miles per hour, provided that at least one of the
following control measures is implemented for each applicable Fugitive
Dust source type:
D.2.a Cease dust generating activities for a period of one hour after Wind
Gusts last exceed the threshold. If operations cease for the
remainder of the day, stabilization measures must be implemented.
D.2.b Apply water or dust Suppressants once per hour.
D.2.c Apply water to maintain 12% soil moisture content.
D.2.d Construct fences 3-5 feet high with 50% or less porosity, and must

801-1

Imperial County Air Pollution Control District

Rule 801

be done in conjunction with another measure, as above.
E.

Requirements
E.1

Construction sites and Earthmoving Activities:
E.1.a All Persons who own or operate a Construction site shall comply
with the requirements of Section F.1 so as to limit VDE to 20%
opacity and comply with the conditions for a Stabilized Surface
when applicable.
E.1.b All Persons who perform any Earthmoving Activities shall comply
with the requirements of Section F.1 so as to limit VDE to 20%
opacity.
E.1.c All Persons who own or operate a Construction site of 10 acres or
p
more in size for residential developments or 5 acres or more for
p
non-residential developments shall develop a dust control plan. The
dust control plan shall be made available to the APCD upon
request. The dust control plan shall comply with the requirements
of Section F.
E.1.d The owner or operator required to develop a dust control plan shall
provide written notification to the APCD within 10 days prior to the
commencement of any Construction activities via fax or mail. The
requirement to develop a dust control plan shall apply to all such
activities conducted for residential and non-residential (e.g.,
commercial, industrial, or institutional) purposes or conducted by
any governmental entity. Regardless of whether a dust control plan
is in place or not the owner or operator is still subject to comply with
all requirements of the applicable rules under Regulation VIII at all
times.

F.

Best Available Control Measures for Fugitive Dust (PM-10)
F.1

Construction and Earthmoving Activities shall comply with the following
requirements:
F.1.a Pre-Activity:
F.1.a.1

Pre-water site sufficient to limit VDE to 20% opacity, and

F.1.a.2

Phase work to minimize the amount of disturbed surface
area at any one time.

F.1.b During Active Operations:

801-2

Imperial County Air Pollution Control District

Rule 801

F.1.b.1

Apply water or Chemical Stabilization as directed by
product manufacturer to limit VDE to 20% opacity, or

F.1.b.2

Construct and maintain wind barriers sufficient to limit
VDE to 20% opacity. If utilizing wind barriers, control
measure F.1.b.1 above shall be implemented.

F.1.b.3

Apply water or Chemical Stabilization as directed by
product manufacturer to unpaved haul/access roads and
Unpaved Traffic Areas sufficient to limit VDE to 20%
opacity and meet the conditions of a Stabilized Unpaved
Road.

F.1.c Temporary Stabilization During Periods of Inactivity:
F.1.c.1

Restrict vehicular access to the area by fencing or
signage; and

F.1.c.2

Apply water or Chemical Stabilization, as directed by
product manufacturer, sufficient to comply with the
conditions of a Stabilized Surface. If an area having 0.5
acres or more of disturbed surface area remains unused
for seven or more days, the area must comply with the
conditions for a Stabilized Surface area.

F.1.d Track Out/Carry Out of Bulk Materials at the site shall be mitigated
in compliance with Rule 803.
F.1.e Unpaved Roads and Unpaved Traffic Areas at the site shall comply
with Rule 805.
F.1.f

Bulk Material handling operations at the site shall comply with Rule
802.

F.1.g Material transport of Bulk Material to, from, or around the site shall
comply with Rule 802.
F.1.h Haul trucks transporting Bulk Material to, from, or around the site
shall comply with Rule 802.

F.2

Dust Control Plan:
F.2.a Retain a copy of the dust control plan at the project site.

801-3

Imperial County Air Pollution Control District

Rule 801

F.2.b Comply with the requirements of the approved dust control plan.
F.2.c A dust control plan shall contain all of the following information:
1.

2.

A plot plan which shows the type and location of each
project.

3.

The total area of land surface to be disturbed, estimated
daily throughput volume of earthmoving in cubic yards, and
total area in acres of the entire project site.

4.

The expected start and completion dates of dust generating
and soil disturbance activities to be performed on the site.

5.

The actual and potential sources of Fugitive Dust emissions
on the site and the location of Bulk Material handling and
storage areas, Paved and Unpaved Roads, entrances and
exits where Track Out/Carry Out may occur, and Unpaved
Traffic Areas.

6.

Dust Suppressants to be applied, including: product
specifications; manufacturer's usage instructions (method,
frequency, and intensity of application); type, number, and
capacity of application equipment; and information on
environmental impacts and approvals or certifications related
to appropriate and safe use for ground application.

7.

Specific surface treatment(s) and/or control measures
utilized to control Track Out/Carry Out, and sedimentation
where unpaved and/or access points join paved public
access roads.

8.

G.

Name, address, and phone number of the Person
responsible
for
the
preparation,
submittal,
and
implementation of the dust control plan and responsible for
the project site.

The dust control plan should describe all Fugitive Dust
control measures to be implemented before, during, and
after any dust generating activity.

Record of Control Implementation
Any Person subject to the requirements of this rule shall compile and retain
records that provide evidence of control measure application (i.e., receipts and/or
purchase records). Such Person shall describe, in the records, the type of

801-4

Imperial County Air Pollution Control District

Rule 801

treatment or control measure, extent of coverage, and date applied. For control
measures which require multiple daily applications, recording the frequency of
application will fulfill the recordkeeping requirements of this rule (i.e., water being
applied three times a day and the date) Records shall be maintained and be
readily accessible for two years after the date of each entry and shall be provided
to the APCD upon request.
H.

Violations
Failure to comply with any provisions of this rule shall constitute a violation of
Regulation VIII.

801-5

EXHIBIT 5

This page last reviewed May 28, 2015

Background
PM10 refers to particles with an aerodynamic
diameter of 10 microns or smaller. For comparison,
the diameter of a human hair is about 50 to 100
microns. Exposure to PM10 aggravates a number of
respiratory illnesses and may even cause early death
in people with existing heart and lung disease. PM10
includes the subgroup of finer particles with
aerodynamic diameter of 2.5 microns and smaller
(PM2.5). These finer particles pose an increased
health risk because they can deposit deep in the lung
and contain substances that are particularly harmful to human health. PM is a mixture of substances
that include elements such as carbon and metals; compounds such as nitrates, organic compounds,
and sulfates; and complex mixtures such as diesel exhaust and soil. These substances may occur as
solid particles or liquid droplets. Some particles are emitted directly into the atmosphere. Others,
referred to as secondary particles, result from gases that are transformed into particles through
physical and chemical processes in the atmosphere. Please consider joining one or more of the
ARB's Particulate Matter-related e-lists.

WHAT'S NEW?
Estimate of Premature Deaths Associated with Fine Particle Pollution (PM2.5) in California Using a
U.S. Environmental Protection Agency Methodology. Press Release - August 2010
Technical Report on the Characterization of PM10 and PM2.5 in California
An assessment of PM10 and PM2.5 characteristics in each of Califronia's air districts within each air
basin.
Implementation of Senate Bill SB656, Sher 2003
Information on activities regarding ARB and Air District measures to reduce PM.

ADDITIONAL INFORMATION
The following links take you to ARB's reports on the PM2.5 program and to additional information on
PM10 and PM2.5 ambient air quality standards, air quality and emissions data, special studies,
monitoring, health studies, planning, and control strategy development.

Fine Particulate Matter Monitoring Program
Since 2003, ARB has released an annual report describing the major elements of the State's
PM2.5 monitoring program. These reports can be accessed from ARB's Legislatively
Mandated Reports webpage.
Ambient Air Quality Standards for PM10 and PM2.5

Information on both the national and State Ambient Air Quality Standards for PM.
Area Designations
Area designation maps for the current national and State PM10 standards and information
on area designation activities.
California Air Quality Data
California Almanac of Emissions and Air Quality
Provides a compendium of PM10, PM2.5, and PM2.5 precursor emissions and air
quality data.
ADAM
The interactive ADAM database allows users to review historical air quality data
directly from ARB's ADAM air quality database.
AQMIS
The interactive AQMIS database allows users to review real-time air quality data
directly from ARB's AQMIS ambient air quality database.
California Emissions Data
Provides emissions data of directly emitted PM10 and PM2.5 and of gaseous precursors of
secondary PM2.5.
CRPAQS
The California Regional PM10/PM2.5 Air Quality Study is a multi-year effort of meteorological
and PM air quality monitoring, emission inventory development, data analysis, and air quality
modeling. Field work consisted of 14 months of monitoring, between December 1999 and
February 2001.
PM Monitoring
Descriptions of air quality monitoring programs for PM including sampling/monitoring,
laboratory analysis, and quality assurance.
State and Local Air Monitoring Network
Listing and description of ambient air quality air monitoring sites in California and the
northern Baja California portion of Mexico. The monitoring sites in the network include
instruments that measure ambient levels of gaseous and particulate air pollutants, and in
some cases, meteorological parameters.
PM2.5 Monitoring Network Design
ARB, in partnership with California's air quality management districts, has developed a
PM2.5 monitoring network to support and assess compliance with the PM2.5 ambient air
quality standards; support the smoke management plan; assist in health effects studies and
other ambient research activities; and assess regional haze.
Health Research Program
Children's Health Study
The Children's Health Study is the nation's first large-scale effort to explore the
effects on school-aged children of long-term exposure to outdoor air pollution,
including PM, in Southern California.
F.A.C.E.S.
The Fresno Asthmatic Children's Environment Study is a large epidemiological
study of the effects of air pollution on children with asthma. The overall goal is to
determine the effects of different PM components, in combination with other ambient
air pollutants, on the natural history of asthma in young children.
Fine and Ultrafine Particulate Matter Research

Describes numerous research projects on PM2.5 (fine) and particles with
aerodynamic diameter of less than 0.1microns (ultrafine).
State Implementation Plan
Provides access to selected State Implementation Plans (SIPs) required by the
federal Clean Air Act, including plans in development and submitted plans.
Diesel Risk Reduction Plan
Information on ARB's comprehensive program to reduce PM emissions and
resultant health risk from diesel-fueled engines and vehicles.
Fugitive Dust Handbook
This handbook discusses what fugitive dust is, fugitive dust pollution problems,
clean operating tips, and the various controls available.
Regional Haze
U.S. EPA regulations require states to improve visibility in national parks and
wilderness areas. California is working with other western states to understand and
improve visibility.
Smoke Management Program
California's Smoke Management Program addresses potentially harmful smoke
impacts from agricultural, forest, and range land management burning operations.

OTHER RELATED LINKS
U.S. EPA's PM Page
Southern California Particle Center and Supersite
Fresno PM Supersite
PM Supersites

CONTACT US
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EXHIBIT 6

Flat-tailed Horned Lizard
Rangewide Management Strategy,
2003 Revision
An Arizona-California Conservation Strategy

Prepared and edited by the

Flat-tailed Horned Lizard Interagency Coordinating Committee
May 2003

EXECUTIVE SUMMARY
The Flat-tailed Horned Lizard Rangewide Management Strategy has been prepared to provide
guidance for the conservation and management of sufficient habitat to maintain extant
populations of flat-tailed horned lizards (FTHLs), Phrynosoma mcallii, in each of five
Management Areas (MAs) in perpetuity. The species is found only in southwestern Arizona,
southeastern California, and adjacent portions of Sonora and Baja California Norte, Mexico.
The USFWS proposed the species for listing as a threatened species on November 29, 1993. Human
activities have resulted in the conversion of roughly 49% of the historic FTHL habitat to other uses,
such as agriculture and urban development. Further evaluation of populations supported by
remaining habitat is necessary. While initial evidence suggested that FTHL populations had
declined in the Yuha Basin and northern East Mesa (Wright 1993; USFWS 1993), Wright (2002)
recently found no significant trends in lizard encounter rates in Yuha Desert, East Mesa, or West
Mesa from 1979-2001. The USFWS withdrew its proposed listing on January 3, 2003, based in part
on protections offered by this Rangewide Management Strategy (RMS).
The 1997 edition of the RMS established five FTHL MAS — four in California and one in Arizona.
Surface disturbing activities are limited in these areas. Although land alterations in FTHL habitat
outside of the MAs are not limited, mitigation and compensation measures are applied. One
research area (RA) was also established to support research in an active off-highway vehicle (OHV)
recreation area. Conservation areas in the Coachella Valley were also established.
Wide-scale population estimates have, to date, been unreliable. While new techniques to estimate
abundance continue to be evaluated, this revised document calls for monitoring changes in
distribution over time in addition to monitoring changes in population size. Revised monitoring
techniques have been established.
The RMS was prepared by representatives from federal, state, and local governments. Itis designed
to be used as the basis for a conservation agreement among the agencies. Signatory agencies will
incorporate measures in the RMS into their land management plans. Compliance with the National
Environmental Policy Act (NEPA) and other applicable federal and state law will be achieved
through these management plans or revisions. The planned actions in the RMS are organized in a
step-down format used by the USFWS in recovery plans.

i

PREFACE
Dr. Larry D. Foreman and members of the Flat-tailed Horned Lizard Interagency Coordinating
Committee (ICC) prepared the original Flat-tailed Horned Lizard Rangewide Management
Strategy in 1997. Kevin V. Young1 and Ty J. Gardner coordinated the 2003 revision (Arizona
Game and Fish Department solicitation # QF02-040-S; funds made available by the U.S. Fish and
Wildlife Service). The following members of the ICC and MOG (listed by agency) participated in
writing and discussion until a consensus was reached:

Agency

ICC Member

MOG Member

Anza-Borrego State Park...............................................
Arizona Game and Fish, Yuma .....................................
California Department of Fish and Game .....................
California State Parks, Ocotillo Wells ..........................
U.S. Bureau of Land Management, El Centro ..............

Paul Jorgensen
Lin Piest
Eddy Konno
Eric Hollenbeck
Gavin Wright

Mark Jorgensen
Larry Voyles
Glenn Black
Curt Itogawa
Greg Thomsen

U.S. Bureau of Land Management, Palm Springs.........
U.S. Bureau of Land Management, Yuma ....................
U.S. Bureau of Reclamation, Yuma..............................
U.S. Fish and Wildlife Service, Carlsbad......................
U.S. Fish and Wildlife Service, Phoenix.......................
U.S. Marine Corps Air Station, Yuma ..........................
U.S. Naval Air Facility, El Centro ................................
U.S. Navy SW Division, San Diego..............................

Rachelle Huddleston-Lorton
Fred Wong
Andrea Campbell
Sandy Vissman
Mike Coffeen
Bryan Morrill
Jim Collins
Trish Griffin

Elena Misquez
Gail Acheson
Cynthia Hoeft
Pete Sorensen
Jim Rorabaugh
Ron Pearce
Carl David
N/A

Cover Artwork: flat-tailed horned lizard in Sonora, Mexico. Courtesy of Jim Rorabaugh.
Recommended Citation:
Flat-tailed Horned Lizard Interagency Coordinating Committee. 2003. Flat-tailed horned lizard
rangewide management strategy, 2003 revision. 80 pp. plus appendices.

1

Young Environmental Services: 527 N. 400 E., Logan, UT 84321 [e-mail] [phone]

ii

TABLE OF CONTENTS
Executive Summary .................................................................................................. i
Preface ...................................................................................................................... ii
List of Tables ........................................................................................................... iv
List of Figures ......................................................................................................... iv
List of Acronyms ...................................................................................................... v
Overview ................................................................................................................... 1
Species Description ............................................................................................... 1
Threats................................................................................................................. 11
Listing History ...................................................................................................... 22
Management Program............................................................................................ 25
Overall Goal ......................................................................................................... 25
Management Objectives ...................................................................................... 25
Overview and Purpose......................................................................................... 25
Planning Actions .................................................................................................. 26
Summary of Management Strategy Implementation, 1997-2002 ......................... 33
Management Implementation Schedule, 2003-2007............................................ 45
Habitat Management............................................................................................ 49
Mitigation.............................................................................................................. 60
Compensation...................................................................................................... 62
Monitoring Program ............................................................................................. 66
Restorative Measures .......................................................................................... 68
Literature Cited....................................................................................................... 71
Appendices............................................................................................................. 82
Appendix 1.
Appendix 2.
Appendix 3.
Appendix 4.
Appendix 5.
Appendix 6.
Appendix 7.
Appendix 8.

1997 Conservation Agreement ...................................................... 83
Federal Plans Affecting Flat-tailed Horned Lizard Habitat ............. 90
Legal Description of Management and Research Areas ............... 93
Population Monitoring Protocol...................................................... 98
Distribution Monitoring Protocol................................................... 100
Project Evaluation Protocol.......................................................... 102
Fencing and Removal Survey Protocols...................................... 105
Forms and Data Sheets............................................................... 107

iii

LIST OF TABLES
Table 1. Private and state land acquired in MAs and the RA. ........................................................ 37
Table 2. Acres of FTHL habitat authorized for impact on lands managed by signatory agencies. ........... 44
Table 3. Overview of Acreage and Ownership of Management Areas. ............................................ 49

LIST OF FIGURES
Figure 1. Comparative views of Phrynosoma mcallii (left) and P. platyrhinos (right) adults and hatchlings. 2
Figure 2. Approximate current and historical distribution of the flat-tailed horned lizard. ........................5
Figure 3. Typical flat-tailed horned lizard habitat from various parts of its range. .................................7
Figure 4. Yuma Desert Management Area. ............................................................................... 53
Figure 5. East Mesa Management Area. .................................................................................. 54
Figure 6. West Mesa Management Area................................................................................... 55
Figure 7. Yuha Desert Management Area. ................................................................................ 56
Figure 8. Borrego Badlands Management Area.......................................................................... 57
Figure 9. Ocotillo Wells State Vehicular Recreation Area Research Area......................................... 58
Figure 10. Coachella Valley Preserve System. .......................................................................... 59

iv

LIST OF ACRONYMS
The following acronyms are used in this document:
ACEC.......................Area
AGFD

of Critical Environmental Concern

......................Arizona Game and Fish Department

ABDSP .....................Anza-Borrego
BLM ........................United
BMGR ......................Barry

Desert State Park

States Bureau of Land Management

M. Goldwater Range

BOR .........................United

States Bureau of Reclamation

BP ...........................Border

Patrol

CDFG.......................California
CNLM ......................Center

Department of Fish and Game

for Natural Lands Management

CVMSHCP .................Coachella

Valley Multiple Species Habitat Conservation Plan and
Natural Communities Conservation Plan

DOD ........................United

States Department of Defense

EA ...........................Environmental
FTHL .......................Flat-tailed

Assessment

horned lizard

GIS ..........................Geographic

Information System

ICC ..........................Interagency

Coordinating Committee

MA ..........................Management
MCAS ......................Marine

Area

Corps Air Station, Yuma

MOG ........................Management

Oversight Group

MOU ........................Memorandum
NAF.........................Naval

Air Facility

NEPA .......................National

Environmental Policy Act

OHV ........................Off-highway
OWSVRA ..................Ocotillo

vehicle

Wells State Vehicular Recreation Area

RA...........................Research
ROW ........................Right

of Understanding

Area

of Way

SVL .........................Snout-Vent
USFWS .....................United

Length

States Fish and Wildlife Service

v

OVERVIEW
Species Description
Taxonomy
The flat-tailed horned lizard (FTHL), Phrynosoma mcallii, was first described by Hallowell in
1852 as Anota mcallii after U.S. Army Colonel George A. M'Call who collected the type specimen
(Johnson and Spicer 1985). Due to the lack of external ear openings, the FTHL was initially placed
in a separate genus (Anota) from other horned lizards (Johnson and Spicer 1985). Norris and
Lowe (1951) decided that similarities of mcallii to other horned lizards were greater than its
differences and placed it into the genus Phrynosoma. The FTHL is one of 14 currently recognized
species of horned lizard (eight of which occur in the U.S.) (Zamudio and Parra Olea 2000). It is
believed to be most closely related to the desert horned lizard, P. platyrhinos (Reeder and
Montanucci 2001). No subspecies of FTHL have been described (Funk 1981).
Field Characters
The FTHL has the typical round, flattened body shape of horned lizards. It is distinguished from
other species in its genus by its dark vertebral stripe; lack of external ear openings; long, broad
and flattened tail; and comparatively long spines on the head (Funk 1981). The FTHL has two rows
of fringed scales on each side of its body. The species is cryptic in color, ranging from pale gray
to light rust brown dorsally, and white or cream (unspotted) ventrally with a prominent umbilical
scar. The only apparent external difference between males and females is the presence of enlarged
postanal scales in males, typical of Phrynosomatids. Maximum snout-vent length (SVL) for the
species is 87 mm (Boundy and Balgooyen 1988), but 65-80 mm SVL is typical adult size (Young
and Young 2000). Adult weight varies between 10 and 25 g. Hatchlings range from 30 to 38 mm
and weigh about 1.5 g (Johnson and Spicer 1985; Young and Young 2000).
The only other horned lizard known to be sympatric with the FTHL is the desert horned lizard. The
latter is distinguished from the FTHL by a combination of characters including absence of a dark
vertebral stripe, an exposed tympanum, a spotted ventral surface in most individuals, a single row
of fringed scales, and a narrower and less-flattened tail (Figure 1). Apparent hybrids between the
two species, which exhibit a mix of morphological characteristics, have been observed near
Ocotillo, California (Stebbins 1985) and on the BMGR near Yuma, AZ (Morrill, Young, pers.
obs.). There has been at least one case of hybridization in captivity (Collet 2002).

1

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

Figure 1. Comparative views of Phrynosoma mcallii (left) and P. platyrhinos (right)
adults and hatchlings.

Distribution and Habitat Status
The FTHL has the most limited distribution of any horned lizard species in the U.S. (Stebbins
1985). It is found in the extreme southwestern corner of Arizona, the southeastern corner of
California, and adjoining portions of Sonora and Baja California, Mexico (Figure 2). In Arizona,
the FTHL is found in southwestern Yuma County south of the Gila River and west of the Butler
and Gila mountains. Estimates of historic habitat in Arizona range from 203,520 to 221,043 acres,
and of current habitat from 135,900 to 176,000 acres (Johnson and Spicer 1985; Rorabaugh et al.
1987; Hodges 1995, 1997; Piest and Knowles 2002). Suitable habitat is found east and south of
the city of Yuma outside of the Colorado and Gila River floodplains and adjoining croplands.
Lands within the range of the FTHL in Arizona include federal lands administered by the
Department of Defense (DOD) through Marine Corps Air Station at Yuma (MCAS-Yuma), the
Bureau of Land Management (BLM), and the Bureau of Reclamation (BOR); state of Arizona lands;
and private lands. The majority of the FTHL's range in Arizona is on the western Barry M.
Goldwater Range (BMGR), managed by MCAS-Yuma. Records from Mexico Highway 2, just south
of the International Boundary, suggest the species might be present in the area of Pinta Sands on
the Cabeza Prieta National Wildlife Refuge, but searches in this area have only documented
desert horned lizards (Rorabaugh 1996a, 1997).
2

Species Description

The historical range of the FTHL in California encompasses approximately 1.8 to 2.2 million acres,
primarily in Imperial County, but also in eastern San Diego County and central Riverside County
(Turner et al. 1980; Rado 1981; Bolster and Nicol 1989; Hodges 1997). However, about 50% of
the land within this range is now unsuitable, including the Salton Sea and urban and agricultural
areas (Hodges 1997). Areas identified as especially important to the species in California
encompass approximately 210,000 acres and are found primarily in four regions (Rado 1981;
Turner et al. 1980). MAs were established in these areas and have been the focus of FTHL habitat
conservation (see Management Areas, p. 49). The El Centro Resource Area (BLM, California
Desert District) administers three of these areas: West Mesa MA, East Mesa MA, and Yuha Desert
MA (the BLM and the U.S. Navy jointly manage portions of West Mesa and East Mesa). The
California Department of Parks and Recreation (CDPR) manages Ocotillo Wells State OffHighway Vehicle Area (OWSVRA) as a RA and a portion of Anza-Borrego Desert State Park
(ABDSP) as the Borrego Badlands MA.
The northern margin of the species’ range is in the Coachella Valley, an area where expansive
agricultural and urban development has destroyed the vast majority of original FTHL habitat. The
largest remaining, unfragmented habitat patch is approximately 3,900-4,200 acres in size, just 34% of the original habitat extent within the Coachella Valley (Barrows 2002). The Coachella
Valley Multiple Species Habitat Conservation Plan and Natural Communities Conservation Plan
(CVMSHCP) will protect approximately 44.5% of the remaining FTHL habitat in the valley.
Based on Figure 2, about half of the historical range of the FTHL is in Mexico, particularly in
Sonora. In Baja California Norte, the range extends from the International Border west of
Mexicali south to Laguna Salada. A specimen found south of Laguna Salada in 2001 (Rodriguez
2002) extended the known southern range limit in Baja by approximately 40 miles. It is unknown
whether this population is connected to those to the north or is disjunctive. In Sonora, the species
has been found in the sandy plains immediately south of and contiguous with habitat in Arizona,
and east through the Pinacate Region to the sandy plains around Puerto Peñasco and Bahía de San
Jorge (Johnson and Spicer 1985; Gonzáles-Romero and Álvarez-Cárdenas 1989; Rodríguez
2002). The FTHL is probably absent from the volcanic areas in the Pinacate Region and rare in the
dune fields of the Gran Desierto (Rodríguez 2002).
Map Creation
The current and historical distribution map (Figure 2) is designed to provide graphic
representation of the approximate current and historical FTHL range boundaries. This map is not
based on a predictive model, with the exception of the current range in the Coachella Valley (see
below), and should not be viewed as such. ArcView (ESRI 1998) shape files (.shp) for the current
and historical distributions recognized in this document are on file with ICC member agencies.
The historical distribution is based on a 750-foot contour interval across the majority of the range,
particularly in the U.S. and the most northern portion of Mexico. There are several departures from
this contour: 1) along the eastern boundary of the Algodones dune system the boundary is based
on a microphyll/desert dry wash habitat (coverage provided by BLM-El Centro) because the
habitats to the east of these are not likely to have been occupied by FTHLs at any time (contra
Hodges 1997); 2) the boundary on the eastern side of the Yuma desert MA was defined as the edge
of the rocky substrate, estimated as a fixed distance from the western slope of the Gila mountains,

3

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

since this habitat is not occupied by FTHLs (Hodges 1995, Young and Young 2000); 3) much of
the range in Sonora, Mexico is based on an ArcView coverage (obtained from
http://data.geocomm.com) that delineates the boundaries between unconsolidated substrates
(included) and inundated areas (excluded), but areas outside the unconsolidated substrates were
included (e.g. mudhill habitat near El Golfo) where verified locality data were available
(Rodríguez 2002); and 4) the distribution around Laguna Salada is based on the range map in
Foreman (1997), recent localities (Rodríguez 2002) and mention of sightings on the eastern side
where sand accumulates against the Sierra Cucapa (Lee Grismer, California State University San
Diego, pers. comm.).
The current distribution (except the Palm Springs area) is a subset of the historical range map
from which habitat that has been converted to urban, agricultural, or other such permanent
disturbances has been removed. Data used to remove such areas include USGS maps, ArcView
coverages of city streets, and aerial photographs of the East Mesa, West Mesa, and Yuha Desert
MAs and surrounding areas (provided by BLM-El Centro). Features removed include, but are not
limited to: Yuma, AZ; Ocotillo, Borrego Springs, and Salton City, California; the agricultural
areas of the Imperial Valley, California and the Mexicali Valley, Baja Norte; and projects
recognized on aerial photos in the Yuha Desert MA, north of the Yuha Desert MA, and near the
Salton Sea Test Base.
The current distribution in the Coachella Valley area (Riverside Co., California) is the October
2002 draft (provided by the Coachella Valley Association of Governments) of the predicted
portion of a FTHL habitat model produced for the CVMSHCP. This model includes habitat below the
700-foot contour interval. The model was refined by looking for vegetation community and soil
type associations and deleting developed areas. The model includes habitat patches that are too
small to maintain viable populations (Cameron Barrows, Center for Natural Lands Management
(CNLM), pers. comm.). Further information is available through the Coachella Valley Association
of Governments.
Further work is necessary to solidify the current distribution of the FTHL in the U.S. and Mexico. In
particular, work is needed outside the MAs to firmly delineate the boundaries on the exterior
portion of the range in the U.S. Such work, in conjunction with surveys within MAs, could help
produce a habitat model that may more accurately describe the historical and current FTHL range.
Areas of Mexico that remain uncertain and could benefit from further surveys and/or modeling
include: 1) the southeast boundary in Sonora; 2) the extent of historical range in the Mexicali
valley and the current range surrounding that area (including Mesa Andrade); 3) the extent of the
current and historical ranges surrounding Laguna Salada; and 4) the degree of connectivity
between portions of the current and historical ranges in Sonora, the Mexicali Valley, and
surrounding Laguna Salada.

4

Species Description

Figure 2. Approximate current and historical distribution of the flat-tailed horned lizard.

5

Overall Goal

MANAGEMENT PROGRAM
Overall Goal
MAINTAIN SELF-SUSTAINING POPULATIONS OF FLAT-TAILED HORNED LIZARDS
IN PERPETUITY.

Management Objectives
•
•
•
•
•

Continue to secure and/or manage sufficient habitat to maintain self-sustaining FTHL
populations in each of the five designated MAs (Yuma Desert, East Mesa, West Mesa,
Yuha Desert, and Borrego Badlands MAs) and in areas designated by the CVMSHCP.
Maintain a "long-term stable" or increasing population of FTHLs in all MAs. A
population that is stable over the long term exhibits no downward population trend
after the effects of natural demographic and environmental stochasticity are removed.
Continue to support research that promotes conservation of the species at OWSVRA and
elsewhere throughout the range of the species.
Within and outside of MAs, limit the loss of habitat and effects on FTHL populations
through the application of effective mitigation and compensation.
Encourage and assist Mexico in the development and implementation of a FTHL
conservation program.

Overview and Purpose
In 1994, the USFWS, BLM, BOR, DOD, and several other agencies signed a MOU "...on
Implementation of the Endangered Species Act" that established a general framework for
cooperation and participation among cooperators in the conservation of species tending toward
federal listing as threatened or endangered under the Endangered Species Act. The MOU identified
the development of conservation agreements as a valuable process for achieving conservation of
species through voluntary cooperation. A conservation agreement is a formal, written document
agreed to by the USFWS and other cooperators that identifies specific actions and responsibilities
for which each party agrees to be accountable. The objective of a conservation agreement is to
reduce threats to a candidate species or its habitat, possibly lowering the listing priority or
eliminating the need to list the species.
This strategy formed the basis of a conservation agreement among the cooperators for
management of FTHLs (Foreman 1997). The conservation agreement that was signed is included
as Appendix 1. Although the USFWS determined that the conservation agreement was effective and
that listing the FTHL was unnecessary, it retains the ability to reconsider the effectiveness of the
agreement. Lack of compliance among the cooperators, a change of circumstances, or other
reasons may alter the expected result of this strategy. If threats to the FTHL or its habitat are not
reduced, the USFWS may proceed with another proposed or an emergency listing.
The purpose of this strategy is to provide a framework for securing and managing sufficient
habitat to maintain several self-sustaining populations of the FTHL throughout the species' range in
the U.S. (see Habitat Management, p. 49). A major step towards that objective was the
establishment of five MAs encompassing large blocks of habitat where surface disturbing and

25

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

mortality causing activities are minimized. Prior to the RMS, management of federal lands within
FTHL habitat was guided by several management plans, as discussed in Appendix 2. These plans
cover federal lands both within and outside the MAs. When the MAs were established, this
document became the standard for management and conservation of FTHL habitat. Signatory
agencies have incorporated measures in the RMS into their land management plans to comply with
the NEPA and state counterparts.
Outside of these MAs, FTHL habitat receives a degree of protection through mitigation and
compensation and through the previously established habitat management plans that affect public
lands outside of MAs (Appendix 2). Specifically, signatories to the conservation agreement ensure
that adverse effects of projects they authorize outside of MAs are mitigated and that residual
effects are compensated in accordance with a standard formula (see Mitigation and
Compensation). The funds obtained through compensation are used to consolidate land ownership
within the MAs or to enhance habitat.
As part of its adaptive management approach, programs for monitoring FTHL population,
distribution, and habitat disturbance have been established (see Monitoring Program, p. 66 and
Appendix 4 and Appendix 5). If population or distribution declines occur, the ICC shall investigate
potential causes. If causes are anthropogenic in nature, the ICC shall make recommendations to
the MOG for reversing the trend.
This document is the first revision of the 1997 RMS (Foreman 1997). Because the Implementation
Schedule will expire in 2008, it is expected that the schedule will be revised at that time.
Concurrently, the need for a revision of the entire document will be evaluated.

Planning Actions
The following Planning Actions have been developed as recommendations to signatory agencies
to ensure that the goal of maintaining a “long-term stable” population within each MA is achieved.
The original Planning Actions from the 1997 RMS are repeated here, though some of these actions
have been completed. Actions that have been identified since 1997 have been added. It is
understood that implementation of these actions is subject to availability of funds and compliance
with all applicable regulations. It is anticipated that specific actions may be modified based on
information obtained from future monitoring, research, and evaluations of the effectiveness of this
strategy. Annual evaluations and proposed modifications of this strategy shall be coordinated
through the FTHL ICC. The MOG will meet as necessary to review recommendations of the ICC and
may make corresponding modifications to Planning Actions in the RMS.
1. Delineate and designate five FTHL MAs and one FTHL RA. See Table 3 for a summary of
land ownership within each MA. Boundary descriptions and geographic information
system (GIS) maps are on file with land management agencies.
1.1. Designate the Yuma Desert FTHL MA as shown in Figure 4. If the proposed Area
Service Highway is constructed along a portion of the boundary of the MA, the east
and south side of the ROW will be the new western and northern boundary of the MA,
as appropriate.
1.2. Designate and complete NEPA process for the East Mesa FTHL MA as shown in Figure
5.

26

Planning Actions

1.3. Designate and complete NEPA process for the West Mesa FTHL MA as shown in Figure
6.
1.4. Designate and complete
Figure 7.

NEPA

process for the Yuha Desert

FTHL MA

as shown in

1.5. Designate and complete California Environmental Quality Act process for the
Borrego Badlands FTHL MA as shown in Figure 8.
1.6. Designate the OWSVRA as the Ocotillo Wells FTHL RA as shown in Figure 9.
1.7. Continue to manage areas in the Coachella Valley that are capable of sustaining viable
populations of FTHL by working with other agencies and organizations in finalizing a
CVMSHCP (see Figure 10).
2. Define and implement management actions necessary to minimize loss or degradation
of habitat.
2.1. Mitigate and compensate, as needed (Appendix 6), project impacts on FTHLs and their
habitat both within and outside of MAs and the RA through humane and cost-effective
measures.
2.1.1 Apply mitigation measures as appropriate, based on the nature of the
anticipated impacts (see Mitigation section).
2.1.2 Require compensation for residual impacts remaining after application of other
on-site mitigation measures (see Compensation section).
2.2. Limit land use authorizations that would cause surface disturbance within the MAs.
2.2.1 Land use applications will continue to be reviewed on a case-by-case basis for
impacts on FTHLs and their habitat. Every attempt shall be made to locate
projects outside of MAs. New ROWs may be permitted only along the boundaries
of MAs and only if impacts can be mitigated to avoid long-term effects on FTHLs
in the MA. Where discretionary, other new authorizations may be permitted if
the habitat disturbance does not pose a significant barrier to lizard movements.
Disturbance shall be limited to 10 acres or less per authorization, if possible. If
individual disturbances over 10 acres are necessary, the ICC and the MOG shall
be contacted to provide suggestions for minimizing potential impacts to FTHLs.
The cumulative new disturbance per MA since 1997 may not exceed 1% of the
total acreage on federal land. The 1% cap on new surface disturbance within
MAs will remain in effect for 5 years, after which the 1% cap will be reviewed
by the MOG and amended, if necessary, based on more recent information. Each
agency may permit disturbances of up to 1% of the land that the agency
manages within the MA. Additions to the 242 Well Field by the BOR and
existing, on-going activities at DOD facilities (for MCAS-Yuma, these activities
are described in the EIS for the Yuma Training Range Complex) do not count
towards this 1%. If disturbance greater than the 1% cap is desired, the agency
may request use of the 1% disturbance allowance of other signatory agencies in
the MA. All authorizations must be conducted in accordance with applicable
mitigation and compensation.

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Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

2.2.2 All federally owned lands in the MAs shall be retained in federal ownership
(except the patenting of mining claims pursuant to the General Mining Law of
1872). Lands in MAs owned by the state of California and managed as
preserves, refuges, or parks shall be retained in state ownership.
2.2.3 Maintenance of all existing ROW facilities may continue within MAs.
2.2.4 The proposed Area Service Highway and its ROW are outside of the Yuma
Desert MA. This and other new road construction along the boundary of the
Yuma Desert MA shall require fencing to reduce access to the MA and lizard
exclusion fencing (Appendix 7) to reduce lizard mortality.
2.3. Limit and/or reduce surface disturbance in MAs from discretionary minerals actions.
2.3.1 Allowable activities are the following: 1) leasing under the mineral leasing
laws with no surface occupancy; 2) development and production in existing
mineral material extraction sites in accordance with local, state, and federal
laws and land-use plans, and subject to applicable mitigation; 3) new leases and
permits for geothermal energy with stipulations of no surface occupancy (in
California MAs only); and other mining and exploration activities authorized
under the General Mining Law of 1872. Replacement wells and operation and
maintenance of facilities shall be allowed on existing leases. The activities
listed above shall be subject to applicable Mitigation (p. 60) and Compensation
(p. 62).
2.4. Limit vehicle access and limit route proliferation within MAs.
2.4.1 Reduce new road construction to a minimum by coordinating access needs and
avoiding conflicts and replication in road use, development, and management.
Allow maintenance of roads on a case-by-case basis, recognizing that
maintenance of some roads may be necessary to prevent proliferation of
parallel routes. Any new surface disturbance associated with road maintenance
shall require mitigation.
2.4.2 All routes shall be designated either "closed" to motorized vehicles, "open" for
general public use by all types of vehicles, or "limited" to a specific season,
user, or vehicle type or number. Vehicle use shall be restricted to designated
open and limited routes. Routes in MAs shall be given a high priority for
signing. Routes shall be considered “closed” unless signed as “opened” or
“limited”.
2.4.3 Reduce open and limited route density in MAs, particularly in portions of MAs
where route density is high.
2.4.4 Participating land managers shall coordinate with the U.S. BP to ensure
cooperation with and enforcement of vehicle regulations in MAs and the RA to
the maximum extent possible. Coordination shall include regularly scheduled
meetings among signatory agencies and U.S. BP in the Yuma and El Centro
Sectors to discuss management issues and ways to resolve those issues.
2.5. Limit the impacts of recreational activities within MAs.

28

Planning Actions

2.5.1 All types of vehicle-oriented recreation in compliance with current regulations
may occur within the RA.
2.5.2 Permit no competitive motorized vehicle recreational events within MAs. A
competitive event is any event where speed or elements of competition (i.e.,
winning) are present in any form. Non-competitive events may be allowed on
routes designated open for public use during the FTHL season of hibernation.
Other types of vehicle-based recreation except camping (see action 2.5.4) in
compliance with current regulations may occur within MAs.
2.5.3 Allow currently authorized non-motorized recreational activities, such as rock
hounding, hiking, backpacking, non-vehicle based camping, picnicking,
bicycling, horseback-riding, hunting, bird watching, and nature study, in all
MAs and the RA in accordance with existing regulations. Development of new
recreational facilities, such as visitor centers, campgrounds, mountain bike
trails, equestrian trails, shall not be allowed within MAs, if these would create
new surface disturbance in excess of 1%. Installation of interpretive signing
and informational kiosks is allowed.
2.5.4 Allow vehicle-based camping only in developed campgrounds, designated
camping areas, or within 50 feet from centerline of a designated open route
within MAs. More restrictive measures may apply in certain areas. Non-vehicle
camping may occur anywhere.
2.5.5 No long-term camping areas shall be designated or developed in MAs.
2.6. Authorize limited use of plants in MAs.
2.6.1 Make no sales and allow no commercial collecting of native plant products
(including whole plants, plant parts, flowers, and seeds) within MAs, except as
needed for rehabilitation projects within the MAs.
2.6.2 Authorize no livestock grazing in the MAs.
2.7. Within the MAs, allow off-road military maneuvers and encampments only in
designated sites. Allow other military activities on previously disturbed lands
managed by DOD agencies consistent with normal operations and functions. Marine
Corps activities on the BMGR shall be governed by Conference Opinion 2-21-95-F114, dated April 17, 1996 (USFWS 1996a), as amended, whether or not the species is
listed. This Conference Opinion is consistent with the goal and management
objectives set forth in this RMS.
2.8. Suppress fires in MAs and the BLM-administered lands in the RA using a mix of the
following methods: 1) aerial attack with fire retardants, 2) crews using hand tools to
create fire breaks, and 3) mobile attack engines limited to public roads, designated
open routes, and routes authorized for limited-use. Do not allow earth-moving
equipment (such as bulldozers) except in critical situations to protect life, property, or
resources. Post-suppression mitigation shall include rehabilitation of firebreaks and
other ground disturbances using hand tools.
2.9. No pesticide treatments shall be applied within MAs. Use of specifically targeted,
hand-applied herbicides (e.g. for tamarisk eradication projects) is allowed.

29

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

2.10. Within MAs, other discretionary land uses and activities not consistent or compatible
with the above restrictions and the general RMS shall not be approved by the
authorizing agency.
3. Within the MAs, rehabilitate damaged and degraded habitat, including closed routes
and other small areas of past intense activity. Methods to be used may include, but
are not limited to, a) ripping or scarifying compacted soils, b) recontouring the
surface, c) pitting or imprinting the surface, d) seeding with native plants, e) planting
seedlings, f) irrigating, and g) barricading. See Habitat Rehabilitation on page 69 for
additional information.
4. Attempt to acquire through exchange, donation, or purchase from willing sellers all
private lands within MAs.
4.1. Establish and maintain with approval of the MOG (see Planning Action 6.1.1) a
prioritized list of parcels or screening criteria for acquisition within each MA and
habitat corridor.
4.2. Seek funding to acquire key parcels within MAs.
4.3. Using compensation and other funds, acquire land within
established priorities and/or criteria.

MAs

in accordance with

4.4. Participate in exchanges where opportunities arise to acquire key parcels within MAs.
5. Maintain or establish effective habitat corridors between naturally adjacent
populations.
5.1. Activities in potential habitat corridors between MAs and the RA shall be regulated or
mitigated so that at least occasional interchange of FTHLs occurs among adjacent
populations. Potential habitat corridors include lands between West Mesa and Yuha
Desert MAs and between West Mesa MA and Ocotillo Wells RA (see Corridors). In
addition, activities in the Yuha Desert and Yuma Desert MAs that would prevent
interchange of FTHLs across the International Border shall be prohibited.
5.2. Coordinate conservation efforts with Mexico and the Immigration and Naturalization
Service to ensure continued movement of FTHLs across the International Border in the
Yuha Desert and Yuma Desert MAs.
6. Coordinate activities and funding among the participating agencies and Mexican
agencies.
6.1. Maintain information exchange and coordination of monitoring, management
activities, and research.
6.1.1 Maintain a FTHL MOG consisting of management representatives from agencies
participating in the conservation agreement (see Planning Action 6.2). The
FTHL MOG shall provide management-level leadership, coordination, and
oversight in the implementation of this RMS. The FTHL MOG shall review
progress in implementing the conservation agreement, approve amendments to
the RMS, set priorities, and recommend measures to resolve management issues
relevant to implementation of the RMS. The FTHL MOG shall provide overall

30

Planning Actions

policy guidance and coordination among the cooperators for the use of
compensation funds.
6.1.2 Hold semi-annual meetings of the ICC. Each of the participating agencies shall
designate a representative(s) to the ICC. Representatives from other agencies,
organizations, and groups with special interests or knowledge of the FTHL may
also be invited to ICC meetings. The ICC shall function as a forum for exchange
of information on research results and proposals and for discussion of technical
and management issues. The ICC may be assigned specific duties and
responsibilities by the FTHL MOG.
6.1.3 Develop a forum for discussions with agencies and individual counterparts in
Mexico to coordinate activities, provide information exchange, and promote
and assist in development of a FTHL conservation program in Mexico.
6.2. Confirm commitment of agencies participating in this RMS through development and
signing of a conservation agreement.
6.3. Incorporate management actions from this RMS when developing multi-agency, multispecies ecosystem plans for the ecoregions in the range of the FTHL incorporating
management actions from this RMS.
6.3.1 Incorporate actions in the development of the Western Colorado Desert
Coordinated Management Plan (including the Yuha Desert, West Mesa, East
Mesa, and Borrego Badlands MAs and Ocotillo Wells RA).
6.3.2 Incorporate actions in the development of the CVMSHCP.
6.3.3 Incorporate actions in the development of the Western Colorado Desert Route
Designation.
6.4. Coordinate with the
natural resources.

BP

in developing mutual agreements for the conservation of

6.4.1 Encourage use of techniques that minimize
cameras and vehicle barriers.

BP OHV

activity, such as remote

6.4.2 Prepare an educational presentation for briefing BP agents.
7. Promote the purposes of the strategy through law enforcement and public education.
7.1. Provide law enforcement in MAs and the Coachella Valley FTHL conservation areas
sufficient to ensure compliance with OHV and other regulations as described in the
planned actions.
7.2. Public information and education about the MAs and RA, including but not limited to
interpretive signs and brochures, shall be made available to the public at the offices
and interpretive centers of the participating agencies. Information provided shall
describe the purposes of the MAs, the RA, and conservation areas within the Coachella
Valley, and shall list all pertinent regulations.
8. Encourage and support research that will promote the conservation of FTHLs or
desert ecosystems and will provide information needed to effectively define and
implement necessary management actions. Research should be encouraged both

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Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

within and outside of MAs and the RA. Planning actions 8.3 and 8.4 shall be
emphasized, as recommended by the ICC.
8.1. All research shall be conducted under permit from the land management agency.
Permits from the state game and fish agency may also be required, and from the
USFWS if the species is listed.
8.2. The OWSVRA shall continue to budget for research for at least 5 years. A team of
scientists and managers will recommend research designs. Results shall be distributed
to other land management agencies.
8.3. Continue to refine cost-effective techniques for assessing FTHL abundance.
8.3.1 Test trapping webs and other techniques to enumerate FTHLs directly.
8.3.2 Determine effectiveness of relative enumeration techniques as an index of
relative abundance using test plots of known density.
8.4. Determine the following life history and demographic parameters and how they vary
with environmental conditions:
Age-specific mortality
•
Longevity
•
Clutch size
•
Age-specific number of clutches per year
•
Hatching success
•
Recruitment
•
Diet
•
Home range size
8.5. Determine effects of the following activities and factors on FTHL demographics and
habitat:
•

Paved roads and highways
•
OHV use and associated activities
•
Geothermal development
•
Pesticide Use
•
Predation
•
Non-native plants
•
Fire
•
Wind turbines
8.6. Determine genetic variation among populations and the effects of barriers on
movements.
•

8.6.1 Determine genetic variation in populations in the different MAs.
8.6.2 Determine effects of human-created barriers such as railroads, canals, paved
roads, agricultural fields, and extensively denuded areas.
8.6.3 Determine effects of natural barriers, such as the Colorado River.

32

Summary of Management Strategy Implementation, 1997-2002

8.7. Determine the effectiveness of the proposed mitigation measures.
9. Continue inventory and monitoring.
9.1. Continue to inventory lands within the range of FTHLs to clarify current range and
habitat use.
9.2. Monitor habitat quality and population trends in five MAs, and additional
designated, to determine progress toward overall management goal.

MAs

as

9.2.1 The ICC shall monitor implementation of this strategy.
9.2.2 Land management agencies shall monitor regional population trends using
standardized techniques (see Appendix 4 and Appendix 5). Each MA shall be
monitored using mark-recapture technique to estimate FTHL population size and
determine a confidence interval, at least once every three years.
9.2.3 Land management agencies shall document habitat disturbance and loss;
recording cumulative totals for percent and acreage of habitat lost. Land
management agencies shall document a running total of compensation funds
collected to date.
9.2.3.1 Signatory agencies shall conduct aerial reconnaissance and analysis
of surface disturbance on the five MAs every five years.
9.2.4 The ICC shall prepare an annual report of monitoring results and progress on
implementation of this RMS. The annual report shall be presented to the MOG for
review and approval by the end of February each year and shall document
implementation of Planning Actions in the previous calendar year. The report
shall include a schedule of activities to be accomplished in the current calendar
year, budget needs for the next fiscal year, and outyear budget needs for major
projects. The report shall also include a summary of monitoring results and a
discussion of the likely causes of any noted declines. Recommendations for
reversing anthropogenic declines shall be made.
9.2.5 New inventory, monitoring, and research data shall be used in evaluations of
the RMS and in assessing proposed changes to the RMS.

Summary of Management Strategy Implementation, 1997-2002
This section summarizes the implementation of Planning Actions identified in the 1997 edition of
the RMS. It covers the period from May 1997 through June 2002. Details of items listed in this
section can be found in the ICC annual reports that were completed during this period.
1. Delineate and designate flat-tailed horned lizard MAs and a RA.
1.1-1.6. Five MAs and one RA were mapped and precise boundary descriptions completed
(see Figure 4 through Figure 9 and Appendix 3). Measures identified in the RMS
were implemented within areas mapped as MAs. BLM-El Centro and BLM-Yuma
drafted a document to implement the RMS: The Proposed Amendment to the
California Desert Conservation Area Plan and the Yuma District Resource
Management Plan to Expand the East Mesa ACEC, West Mesa ACEC, and Gran
Desierto Dunes ACEC Boundaries and to Implement the Flat-tailed Horned Lizard

33

Habitat Management

Action
number

2

9.1

2

Status

Priority

Management Strategy Implementation Schedule, 2003-2007

Planned action

Duratio
n (yrs)

Resp
agency

Total
cost
($000)

FY
2003

Cost estimates ($000)
FY
FY
FY
2004 2005 2006

FY
2007

Continue inventories

ALL

125

25

25

25

25

25

9.2.1

Monitor implementation

ICC

40

8

8

8

8

8

2

9.2.2

Monitor population trends

ALL
(MCAS)

70

ALL

8

8

1

9.2.3.1

ALL

50

2

9.2.4

ICC

20

4

4

4

4

4

1

9.2.5

Document habitat disturbance
and loss
Conduct aerial reconnaissance and
analysis of surface disturbance on
the five MAs every five years
Prepare annual
monitoring/implementation
report
Use new inventory, monitoring,
and research data in evaluations
and proposed changes

105
(70)
8

70

9.2.3

105
(35)
8

70

1

320
(70)
40

ALL

0

8

Habitat Management
Management Areas
Each MA is controlled by multiple agencies and may include private inholdings (Table 3). MAs
were designed to include most FTHL habitat identified as key areas in previous studies, even
though the absolute densities of FTHLs within the MAs were not known. MAs were proposed based
upon accepted principles of good preserve design, utilizing the best information available at the
time. MAs included as large an area as possible, but avoided extensive, existing and predicted
management conflicts (e.g., OHV open areas). Conflicts that are localized in nature (e.g., sand and
gravel mines, military bombing targets) were accepted within some of the MAs. The MAs are the
core areas for maintaining self-sustaining populations of FTHLs in perpetuity. Legal descriptions
of the MAs and the RA are provided in Appendix 3, and maps (Figure 4 to Figure 10) are provided
below. Maps do not show existing OHV trails, which are extensive in some MAs, except for major
trails at OWSVRA.
The prescriptions that guide the management of lands within the MAs (see Planning Action 2, pg
27) were designed primarily to reduce surface disturbance and to promote reclamation of areas,
such as duplicate roads that are no longer needed.
Table 3. Overview of Acreage and Ownership of Management Areas.
Management Area1
Yuma Desert4 (Figure 4)
East Mesa (Figure 5)

Federal
Nonmilitary2
16,200
99,900

Federal
Military

State3

Private

114,8005
8,500

0
0

0
6,900

Total
131,000
115,300

49

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

West Mesa (Figure 6)
Yuha Basin (Figure 7)
Borrego Badlands (Figure 8)
Total

83,200
57,200
0
256,500

29,800
0
0
153,100

1,300
0
36,500
37,800

21,800
3,000
5,900
37,600

136,100
60,200
42,400
485,000

1 The existing Coachella Valley Preserve and Dos Palmas ACEC (not included in table) includes about 17,076 and 14,400
acres, respectively, administered by federal and state agencies and private organizations.
2 Includes lands administered by the BLM and BOR.
3 Includes lands administered by California Department of Parks and Recreation and California State Lands Commission
4 Pending designation of the proposed Area Service Highway. A portion of the Yuma Desert MA boundary will be formed by
the Area Service Highway, if and when constructed (see Figure 4).
5 Lands administered by MCAS-Yuma

Other Lands
Ocotillo Wells State Vehicular Recreation Area
A RA was established in California (Figure 9) where FTHL research is encouraged and funded by
the California Department of Parks and Recreation’s Division of Off-Highway Motor Vehicle
Recreation (Foreman 1997). The RA is about 77,000 acres in size. About 47,000 acres of the RA
are owned by the state and 22,000 acres are owned by BLM, all of which are managed as OWSVRA.
The State has applied to BLM under the Recreation and Public Purposes Act for transfer and
patenting of all 22,000 acres of BLM land to OWSVRA. The State is also actively acquiring the
remaining private lands (8,000 acres) within the RA.
is mandated to provide OHV recreation (free-play, racing, and touring) in a manner to
sustain long-term use. Soil removal, artifact collecting, hunting, and shooting are prohibited
within OWSVRA. No collecting of reptiles is allowed except under a scientific collecting permit
issued by CDFG and approved by OWSVRA.

OWSVRA

In 1991, an extensive wildlife survey and habitat protection plan (Kutilek et al. 1991; Wone et al.
1991) was completed in OWSVRA. The presence of FTHLs and the possibility of listing precipitated
a study in 1994 (Wone et al. 1994) to develop methods for monitoring population trends in
OWSVRA. In these studies, methods of monitoring FTHL population trends on permanent plots in
OWSVRA and on control plots were assessed (Wone and Beauchamp 1995b; Wone et al. 1997).
OWSVRA has since funded several studies (Young 1999; Setser and Young 2000; Setser 2001; T.
Gardner 2002; Gardner in prep) investigating topics such as: demographics, habitat use (including
investigation of the mud hills habitat type), movement patterns, and the effects of OHV activity on
FTHLs and their habitat. OWSVRA has made a commitment to continue to support FTHL research
through 2007.
Anza-Borrego Desert State Park
Lands within ABDSP are managed to conserve native plant and animal communities. Mining, soil
removal, grazing, rock hounding, artifact collection, hunting, shooting, and other activities that
could cause surface disturbances are prohibited in the park. FTHLs occur on an estimated 30,000 to
40,000 acres of the Park.
Within the 600,000-acre park, there is a system of primitive roadways about 500 miles in length.
No vehicular activity is allowed off these roadways. Patrol rangers cite violators; the park’s patrol
aircraft provides backup. Designated roads that might impact sensitive natural or cultural
50

Flat-tailed Horned Lizard Rangewide Management Strategy, 2003 Revision

Figure 7. Yuha Desert Management Area.

56

EXHIBIT 7

High Wind Fugitive
Dust Mitigation Plan
Doña Ana and Luna Counties

Air Quality Bureau | 525 Camino de los Marquez, Ste. 1, Santa Fe, NM 87505

Table of Contents
Purpose............................................................................................................................................ 3
Background ..................................................................................................................................... 3
Air Monitoring Network ................................................................................................................. 4
Public Education and Notification .................................................................................................. 5
Measures to Minimize Contributing Controllable Sources .......................................................... 10
Mandatory Measures................................................................................................................. 10
Local Dust Control Ordinances ............................................................................................ 10
20.2.23 NMAC, Fugitive Dust Control ................................................................................ 10
Voluntary Measures .................................................................................................................. 11
Agricultural Conservation Measures .................................................................................... 11
Minimize Public Exposure to High Concentrations of PM .......................................................... 12
Processes to Collect and Maintain Data Pertinent to the Event.................................................... 12
Consultation with Other Air Quality Managers............................................................................ 12
Periodic Review and Evaluation................................................................................................... 13
Public Comment Documentation.................................................................................................. 13
Submission of Mitigation Plans .................................................................................................... 14

2 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Purpose
On September 16, 2016, the U.S. Environmental Protection Agency (EPA) finalized revisions to
the 2007 Exceptional Events Rule, codified in 40 CFR Parts 50 and 51, that provide air quality
agencies regulatory relief in situations when exceptional events cause an exceedance of a
National Ambient Air Quality Standard (NAAQS). Exceptional events can be caused by human
activity unlikely to recur or natural events. In New Mexico, natural events, such as windstorms
and wildfires, cause exceedances of the particulate matter standards every year. Other
exceptional events that may occur in New Mexico include tornadoes, firework displays, and
chemical spills.
The revised rule includes requirements for states to prepare mitigation plans (40 CFR 51.930) for
areas with recurring events (i.e., three similar events of the same type and pollutant in a threeyear period). Luna County and the Anthony, NM PM10 nonattainment area (i.e., Doña Ana
County) were identified as areas subject to the mitigation plan requirements due to PM10
exceedances from high winds. This plan has been developed to mitigate PM10 and PM2.5
emissions during high wind events in both Luna and Doña Ana counties.

Background
The 3,804 square miles comprising Doña Ana County are topographically diverse and include
mountain ranges, hills, valleys and deserts. The elevation range for the county is 3,730 feet at the
valley floor in the south to 9,012 feet at the peak of the Organ Mountains. The Organ Mountains
lie in a north-south direction along the eastern border of the county, separating the Mesilla
Valley from White Sands Missile Range and White Sands National Monument. The western half
of Doña Ana County is formed by an elevated desert plateau that extends west through Luna,
Grant, and Hidalgo counties along the international border and into Arizona.
Where New Mexico, Texas and Mexico meet, Mount Cristo Rey lies south of Sunland Park
between the Franklin Mountains on the east and the Sierra Juárez Mountains to the southwest.
Previous air quality studies in the air shed indicate that this complex topography dictates wind
flow patterns carrying air masses from El Paso and Ciudad Juárez into southern Doña Ana
County.
Doña Ana County has a mild, semi-arid climate with light precipitation, abundant sunshine, low
relative humidity, and a large daily and annual temperature range. Annual precipitation averages
9.35 inches, including 3.7 inches of snowfall in Las Cruces.
Luna County covers 2,965 square miles in southwestern New Mexico sharing 54 miles of
international border with Mexico. Luna County is within the northern most part of the
Chihuahuan Desert, with desert landscape as its most predominant feature. Several mountain
3 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

ranges are located within the county, including Cooke’s Range, the Florida Mountains, and the
Tres Hermanas Mountains. Like Doña Ana County, Luna County has a semi-arid climate with
light precipitation and low relative humidity. Annual precipitation averages 9.8 inches,
including 1.6 inches of snowfall.
Windstorms are common during the late winter and spring months in both Luna and Doña Ana
counties. Due to these high velocity winds, both counties experience the majority of PM10
exceedances in the State. Synoptic scale weather activity, and to a lesser extent, mesoscale
weather systems drive most of the frequent high wind events in the region. These periods of high
wind may result in average hourly wind speeds exceeding 30 miles per hour for several hours
and reach peak speeds of 60 miles per hour or more. Blowing dust and soil erosion originate
from the numerous exposed and erodible desert areas. Winds predominantly blow from the
southeast in summer, from the west in winter, and from the west-southwest in spring.

Air Monitoring Network
The New Mexico Environment Department, Air Quality Bureau (AQB) regulates air quality to
protect public health and the environment in the State of New Mexico, excluding Bernalillo
County and tribal lands. Air monitoring data are required by regulation and are used to determine
compliance with the NAAQS. The AQB operates a State and Local Air Monitoring Stations
Network to measure the concentration of criteria pollutants, with six PM10 and three PM2.5
monitoring sites in Doña Ana and Luna counties that track windblown dust in southern New
Mexico (Figure 1). These monitoring sites, except 6CM Anthony, have meteorological
monitoring equipment that records wind speed, wind gust, 10 m temperature and 2 m
temperature (Table 1).
Site
6CM Anthony
6ZK Chaparral
6ZM Desert View
6ZL Holman Road
6Q Las Cruces
6WM West Mesa
7E Deming Airport

AQS Site ID
35-013-0016
35-013-0020
35-013-0021
35-013-0019
35-013-0025
35-013-0024
35-029-0003

Latitude
32.0033
32.0409
31.7961
32.4246
32.3103
32.2781
32.2558

Longitude
-106.5992
-106.4095
-106.5839
-106.6739
-106.7512
-106.8649
-107.7227

Parameters
PM10 and PM2.5
PM10 and Meteorology
PM10, PM2.5 and Meteorology
PM10 and Meteorology
PM2.5 and Meteorology
PM10 and Meteorology
PM10 and Meteorology

Table 1. Particulate Matter monitoring network in Doña Ana and Luna Counties.

4 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Figure 1: Luna and Doña Ana counties’ PM Monitoring Network.

Public Education and Notification
The AQB will provide prompt public notification to and education programs for potentially
affected communities whenever PM10 air concentrations exceed or are expected to exceed the
NAAQS (40 CFR 51.930(b)(2)(i)). The AQB’s monitoring website provides the public with
near real-time air quality conditions at each monitoring site in the state (Figure 2) and can be
accessed at www.env.nm.gov/air-quality/air-monitoring-network-2/. Other important uses of the
air monitoring data include the production of a daily Air Quality Index, daily air quality forecast
reports (e.g., AirNow/EnviroFlash), support of short and long-term health risk assessments,
identification of localized health concerns, and tracking long-term trends in air quality.

5 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Figure 2. Screen shot of the AQB’s monitoring webpage, with green dots indicating monitoring site locations.

The AQB’s Windblown Dust webpage provides another useful source of information and can be
accessed at https://www.env.nm.gov/air-quality/dust-main-page/. Here the public can find
answers to frequently asked questions, information on the health effects of dust, information on
sources of dust and information on dust control methods. Draft and final Exceptional Events
Demonstrations are also posted on this page (Figure 3).

6 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Figure 3. Screen shot of AQB’s Windblown Dust webpage.

The AQB is also developing an updated pamphlet on fugitive dust as a companion piece to this
Dust Mitigation Plan that will be made available on the website and at multiple locations
throughout both Doña Ana and Luna counties.
The AQB issues a press release at the start of each windy season to alert Doña Ana and Luna
County residents of the risks associated with dust storms (Figure 4).

7 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Figure 4. Joint press release issued by NMED and NMDOT at the beginning of the 2018 windy season.

Because the AQB does not have a meteorologist on staff, it relies on alerts from the nearest
National Weather Service weather forecast office (El Paso, TX) and the NM Department of
Transportation (Figure 5) and relays this information via a Dust Alert listserv.
To enhance air quality awareness and reduce exposure to air pollution in the community, the
AQB will work with local governments, businesses and school districts to establish air quality
flag programs in the two counties. Through this program, colored flags are flown each day to
alert communities to the quality of air they breathe. The flags correspond to the colors used for
the Air Quality Index, thereby communicating air quality information to the community. For
example, a green flag indicates good air quality whereas a red flag indicates unhealthy air
quality. Additional details about the programs may be found on the AirNow website at
airnow.gov/index.cfm?action=aqibasics.aqi.

8 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Figure 5. Examples of area forecast products and social media alerts issued by the NWS El Paso Office.

9 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

The AQB consults with the NM Department of Health to ensure the listserv alerts include
appropriate information regarding health advisories and actions to minimize exposure for
sensitive populations (e.g., remain indoors, avoid vigorous outdoor activity, and avoid exposure
to respiratory irritants). In addition to the Department of Health, the AQB also regularly consults
with the EPA Region 6 Border Office and New Mexico State University (whose staff includes
the NM State Climatologist) on educating the public in the border region, including supporting
ongoing efforts by these agencies. Education and outreach material will be provided to the
public in English and Spanish to the greatest extent possible.

Measures to Minimize Contributing Controllable Sources
In developing the mitigation plan, the AQB must take steps to identify, study and implement
mitigating measures (40 CFR 51.930(b)(2)(ii)). The AQB recently completed a Fugitive Dust
Micro-Inventory of local sources surrounding the PM10 monitoring sites in Doña Ana and Luna
counties. Staff from the AQB used previous emission inventories for Doña Ana County, GIS
mapping, satellite imagery and field data to identify sources within a 2-km radius of each site
and potential control measures to include in a Fugitive Dust Control rule (see below). These
measures are designed to abate or minimize contributing controllable sources of PM (40 CFR
51.930(b)(2)(ii)(A)).
Mandatory Measures
Local Dust Control Ordinances
The City of Las Cruces, Doña Ana County, and Luna County have existing dust ordinances for
which the AQB has provided consultation. This Dust Mitigation Plan and associated Fugitive
Dust Rule, discussed below, will enhance these ordinances, and provide coverage where there
are gaps.
20.2.23 NMAC, Fugitive Dust Control
The AQB is concurrently developing a Fugitive Dust Control rule for adoption into the New
Mexico Administrative Code. The rule will apply to certain sources of fugitive dust that are not
required to obtain a construction permit from the AQB and will be applicable in any area of the
state that experiences recurring high wind events where the PM10 and/or the PM2.5 NAAQS is
exceeded. Sources of fugitive dust to be included in the draft rule include disturbed surface areas
equal to or greater than 1.0 acre from construction/demolition activities, earthmoving (including
weed abatement activities), and off-road vehicles/all-terrain vehicle activities. Control measures
will be required to stabilize surfaces to ensure emissions are not crossing the property line or
exceeding opacity limits. Commercial and industrial bulk material handling and storage will also
require use of control measures. A list of potential sources of emissions and associated control
10 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

measures are included in Table 2 below. The Environmental Improvement Board granted the
AQB a hearing for adoption of the rule in September 2018.
Source Category

Construction/Demolition
Materials Handling
Wind Erosion (open area
and storage piles)

Control Measures
Water unpaved surfaces
Limit on-site vehicle speed to 15 mph
Apply dust suppressant to unpaved areas
Prohibit activities during high winds
Implement wet suppression
Plant trees or shrubs as a windbreak
Erect artificial wind barriers
Apply dust suppressant or gravel
Water exposed area before high winds
Revegetate area with native plants

Table 2. Candidate sources and associated control measures for fugitive dust control.

Voluntary Measures
Agricultural Conservation Measures
The AQB will rely on the conservation measures outlined by the United States Department of
Agriculture Natural Resources Conservation Service (NRCS) to mitigate particulate matter
emissions from agricultural land management, cropping operations, and livestock/poultry
operations. When properly implemented, NRCS-approved conservation systems and activities
may achieve levels of control comparable to those required by EPA for marginal PM10
nonattainment areas. Implementation of conservation measures will be coordinated with
producers, landowners, operators, state agencies, NRCS, and EPA to determine the most suitable
and effective conservation measures for the counties. Control measures to be considered
include:
Maintaining soil surface cover;
In-field pass reductions;
Soil conditioning and timing of
operations modifications;
Wind barriers;
Equipment modifications;
Bulk material handling;

Unpaved roadway management;
Nutrition and feed management;
Animal confinement;
Manure management;
Land application;
Pasture and range management; and
Mortality management.

Unpaved Travel Surfaces
The AQB will consult with the New Mexico Department of Transportation to develop guidance
for dust control best management practices for maintenance of existing unpaved roadways.
11 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Alternatives to paving will also be explored where material, chemical and administrative
treatment methods may be applied for dust control.

Minimize Public Exposure to High Concentrations of PM
Mitigation plans must include methods to minimize public exposure to high concentrations of
PM (40 CFR 51.930(b)(2)(ii)(B). The AQB will accomplish this through public notification,
outreach education, air quality alerts, Fugitive Dust Control compliance education and
inspections, and enforcement actions.

Processes to Collect and Maintain Data Pertinent to the Event
The AQB has established an internal process to collect and maintain data pertinent to exceptional
events flagging, which includes close coordination between the AQB’s Quality Assurance and
Control Strategies sections (40 CFR 51.930(b)(2)(ii)(C)). This process is included in the
Ambient Air Monitoring Quality Assurance Project Plan, which is reviewed annually. The AQB
Quality Assurance Section is currently developing an Exceptional Events Documentation
Standard Operating Procedure that will provide detailed procedures for documenting information
on possible exceptional events beginning with the monitoring site operator through the quality
assurance of monitored data.
For those data that are subsequently determined to have regulatory significance, the AQB
Environmental Analyst in the Las Cruces field office will begin the data collection process to
support an exceptional events demonstration. This data includes monitored PM concentrations,
wind data, weather information, satellite data, and event reports.

Consultation with Other Air Quality Managers
Often the same weather systems are responsible for dust storms and road closures along the
Interstate 10 corridor in Arizona, New Mexico and Texas, highlighting the need for interstate
consultation. The AQB will engage with other air quality management agencies (40 CFR
51.930(b)(2)(ii)(D)), primarily the Texas Commission on Environmental Quality (TCEQ) and
the Arizona Department of Environmental Quality (ADEQ), to share exceptional event data and
coordinate demonstrations for events that may affect the entire region. Contact information for
TCEQ and ADEQ may be found below.
Exceptional Events Contacts
ADEQ
TCEQ
Air Quality Division
Air Quality Division
Monitoring and Assessments Modeling and Data Analysis
[phone]
[phone]
[e-mail]
[e-mail]
12 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Information regarding exceptional events and dust mitigation will also be shared through the
triannual meetings of the Joint Advisory Committee (JAC) for the improvement of air quality in
the Paso del Norte Region (El Paso/Cd. Juárez/Doña Ana County). The JAC is a binational committee charged with facilitating pilot projects and identifying priority issues for
consideration by the Air Policy Forum of EPA’s Border 2020 program. The committee was
established under the environmental treaty between the United States and Mexico, commonly
referred to as the "La Paz" agreement. Its membership includes federal, state, and local
government officials along with private citizens, university officials, and non-governmental
organizations. The JAC has a total membership of twenty-two, with eleven members each from
the United States and Mexico. More information about participating agencies and past activities
of the JAC can be found at www.cccjac.org.
On the local level, biannual workshops will be held before the start of the spring windy season
and after the monsoon season to foster communication amongst environmental, transportation,
public safety, weather and academia officials. In-person meetings facilitate enhanced
stakeholder cooperation and discussion of health and safety issues, enforcement of local rules,
communication, research, mitigation projects, etc. A preliminary list of entities that will be
invited to participate include the city of Las Cruces, city of Deming, Doña Ana County, Luna
County, New Mexico Department of Public Safety, New Mexico Department of Transportation,
State Climatologist/New Mexico State University, National Weather Service, EPA El Paso
Border Office, Natural Resource Conservation Service, and the Bureau of Land Management. If
resources allow, this could expand into a multi-day workshop where outreach and education
efforts can be focused on and extended to the public and regulated community.

Periodic Review and Evaluation
The AQB will review and evaluate this Dust Mitigation Plan and its implementation and
effectiveness every two years (40 CFR 51.930(b)(2)(iii)). If additional particulate matter
rulemaking occurs within the two-year period, the Dust Mitigation Plan will be updated
accordingly and submitted to EPA Region 6 after the consideration of public comment.

Public Comment Documentation
The draft Dust Mitigation Plan was posted on the AQB website on April 4, 2018, for an initial
thirty-day public comment period. The department did not receive formal comments from
stakeholders, but made minor changes to clarify the consultation mechanism the department
plans on utilizing. Stakeholders were notified via listserv on August 1, 2018, that the final draft
for public comment was posted on the AQB website and the department concluded the public
comment period on September 14, 2018 (40 CFR 51.930(b)(2)(iii)(A)(1)). Appendix A contains
copies of all public notices and listserv announcements associated with this plan. The AQB did
13 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

not receive public comment on the plan (40 CFR 51.930(b)(2)(iii)(A)(2)), therefore no response
to comments is required (40 CFR 51.930(b)(2)(iii)(A)(3)).

Submission of Mitigation Plans
The AQB submitted the Dust Mitigation Plans for Doña Ana and Luna Counties on September
28, 2018, meeting the required deadline of September 30, 2018 (40 CFR 51.930(b)(3)(i)). EPA
intends to review each plan to ensure required components are included and will notify the AQB
upon completion of such review (40 CFR 51.930(b)(3)(ii)). EPA does not intend to formally
approve mitigation plans or require them as part of the New Mexico State Implementation Plan.

14 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

Appendix A – Public Notices

15 | High Wind Fugitive Dust Mitigation Plan – Doña Ana and Luna Counties

RFf:F ~IF[
JAN

AFFIDAVIT OF PUBLICATION

4 2018

STATE OF NEW MEXICO
County of Bernalillo
The New Mexico Environment
Del)artment win conduct public
oufr9ach meetings ragardlno
Iha deYa!oPment of a dUsl mff.
~n plan. adoption or a fu.
o1tlva dust rule, and lllP88l of
the New MexJco Total SusP81lded Particulate Slandard.
These maeUng., Wilt be held In
Deming (t/9/2018), Las Cruces !1'10/2018), and Santa Fa
(1/11/2018) whera rapl8$fflfa.
lives of Iha Envlmnment De, par1ment wDI provide bad(.
ground lnformatkln and the 111qul!vd elements ol a mtllga1lon
plan, rule adoption and rule lit1 ~ Also, Iha dapar1ment wil
, sollcll publlc .Input on the
scope and objecllw of each
action ~ guide lhe department
In Its effolts.
Publle

Outreach

Meeting

Schedule:

Tuesday, Janua,v 9, 2018,
5:30-7:00 p.m., NM Depart-

ment of Tral!SPQrtatfon, 2912
E. Pine SL, Deming, NM
88030. Phone: {575J 5446530.
Weaiesday, January 10,
2018, 5:30-7:00 p.m NM En·
.,
vtronment D!Partment. 2301

_

SS

Bernadette Gonzales , the undersigned, on oath states that she is an authorized Representative of
The Albuquerque Joumal, and that this newspaper is duly qualified to publish legal notices
or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, and that
payment therefore has been made of assessed as court cost; that the notice, copy of which hereto
attached, was published in said paper in the regular daily edition, for 1 time(s) on the following
date(s):
12/30/2017

Sworn and subscribed bef
for the County of Bernalillo a
30
day of December

Notary Public, in and
f New Mexico this
of
2017

--------

PRICE _ _s_1_3_0._s1 _ _ _ _ _ _ _ _ _ _ __
_
Statement to come at the end of month.
ACCOUNT NUMBER

1007594

Entrada del Sol, Las Cruces,
t&!l:C, l'Vtl\

_...,U&•~45ftf

AFFIDAVIT OF PUBLICATION

1n..

STATE OF NEW MEXICO
County of Bernalillo

El Depal1amento del Medlo
Amblenttl adeaibo reunlones
Nuew M6xk:o
llevam
pub!lcas de diwlgacidn con
iaspec_to al desan'Dllo de un
plan de mltigad6n de ~ .
ildo¢dn de una nonna da

I

ss

I

Horarlo de las
pubKcas:

IICJ!llol\eS

Martes, 9 de enero del 2018,
5:30-7:00 p.m., Deoarlamenlo
d& Trwporte de NUeYO
M6xlco, 2912 E. Pine St.,
Oemlno. NM 88030.

(575) S'44-6530,

Tel.:

4 2018

I

12/30/2017

OFFICIAL SEAL

Sandra B. Gutierrez

~M6xico~nlo!
se lleYamn a aibo en enero

=

JAN

Bernadette Gonzales , the undersigned, on oath states that she is an authorized Representative of
The Albuquerque Journal, and that this newspaper Is duly qualified to publish legal notices
or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, and that
payment therefore has been made of assessed as court cost; that the notice, copy of which hereto
attached, was published in said paper in the regular daily edition, for 1 time(s) on the following
date(s):

~ikdeT:"t

da 2018111 Deming (el 9). Las
Cruces (el 10} y Bil Santa Fe
(el 11) y a11r re~ntss
del Oipartamento clel Madlo
Amblenle ~ los antecedenlls y elementos qua se
de un plan de
n, adopclc!n da nor·
mas y derogac!On_ de nonnas.
""--... el ~ n l o
~7na oplnld!) . p_a,!lca
sobl9 el alcanc& y ~ de
cada acd6n para oHentarse
en sus estuarzos.

.
'

-~i"-1· IF"I

Notary Public, in and
ew Mexico this
of
2017

December

PRICE _ _s_1_3_6. o_e_ _ _ _ _ _ _ _ _ _ __
_
Statement to come at the end of month.
ACCOUNT NUMBER

1007594

PROOF OF PUBLICATION
I, being duly sworn, Rynni Henderson deposes
and says that she is the President of the
Deming Headlight, a newspaper published
weekly in the county of Luna, State of New
Mexico; that the 1227513 is an exact duplicate
of the notice that was published once a
week/day in regular and entire issue of said
newspaper and not in any supplement thereof
for 1 consecutive week(s)/day(s), the first
publication was in the issue dated December
29, 2017 the last publication was December 29,
2017. Despondent further states this
newspaper is duly qualified to publish legal
notice or advertisements within the meaning of
Sec. Chapter 167, Laws of 1937.
Sign/9

Tuesday, Januruy 9, 2018, 5:30-7:00 p.m., NM Department of
Transportation, 2912 E. Pinc St~ Deming, NM 88030. Phone:
[phone],
Wednesday, Januruy 10, 2018, 5:30-7:00 p.m., NM Environment
Department, 2301 Entrada del Sol, Las Cruces, NM 88001. Phone;
[phone].
Thursday, January 11, 2018, 2.00-3:30 p.m.., NM Environment
Department, Air Quality Bureau, 525 Camino de los Marquez,
Santa Fe, NM 87505. Phone: [phone].

For more infonnotion on blowing dust in New Mexico please visit
our website at www.cnv.nm.gov/air-qualityldust-main•page/. For
more infonnation about mitigation plan requirements please visit
www.epa.gov/air-quality-analysis/trcntment-air-quality-data•
innucnccd-cxccptional-evcnts.

Official Position

STATE OF NEW MEXICO
ss.
County of Dona Ana
Subscribed and sworn before me this
day of

~.W,u~ 2oJB

a:

P.o

0~ v&

/}f \
41 fr
Notary Public in and for
Dona Ana County, New Mexico

u'ffiO,

Public Outreach Meeting Schedule:

If you plan to attend the meeting in Santa Fe, please notify Kerwin
Singleton at [phone] or kcrwin.singleton@state,nm.us.

.,,_

P
J.b?r2
:Sa.I-

The New Mexico Environment Department will conduct public
outreach meetings regarding the development of a dust mitigation
plan, adoption ofa fugitive dust rule, and repeal of the New
Mexico Total Suspended Particulate Standnrd. These meetings will
be held in Deming (1/9/2018), Las Cruces (1/10/2018), and Santa
Fe {1/11/2018) where representatives of the Environment
Department will provide background infonnation and the required
clements of a mitigation plan, rule adoption and rule repcaL Also,
the department will solicit public input on the scope and objective
of each action to guide the department in its efforts.

My Tenn Expires

'

NMED does not discriminate on the basis of race, color, national
origin, disability, age or sex in the administration of its programs
or activities, as required by applicable laws and regulations.
NMED is responsible for coordination of compliance efforts and
receipt of inquiries concerning non-discrimination requirements
implemented by 40 C.F.R. Part 7, including Title VI of the Civil
Rights Act of 1964, as amended; Section 504 of the Rehnbilitntion
Act of 1973; the Age Discrimination Act of 1975, Title IX of the
Educnlion Amendments of 1972, and Section 13 of the Federal
Water Pollution Control Act Amendments of 1972. If you hnve
any questions about this notice or any ofNMED's non•
discrimination programs, policies or procedures, you may contact:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santn Fe, NM 87502
(505) 827•2855
[e-mail]
If you believe that you have been discriminated against with
respect to a NMED program or activity, you may contact the NonDiscrimination Coordinator identified above or visit our website at
https://www.env.nm.gov/non-cmployce-discriminotion-eomplaint•
page/ to learn how and where to lilc a complaint of discrimination.

JAN l O 2018
Air Quality Bureau

El Departamento dcl Mcdio Ambicnte de Nuevo Mexico llevnni n
cabo rcunioncs publicas de divulgaci6n con respecto al desarrollo
de un plan de mitigaci6n de polvo, adopcion de unn nonnn de
polvo fugitivo y derogaci6n de\ Estandar dcl total de particulas
suspcndidas de Nucvo Mexico. Las rcuniones sc llevaran a coho
en cnero de 2018 en Deming (el 9), Las Cruces {cl I0) yen Santa
Fe (cl 11) y olli reprcscntantcs dcl Departamento del Medio
Ambicnte provcemn los antccedcntes y clcmcntos que se requicren
de un plan de mitigaci6n, adopcion de nonnns y dcrogaci6n de

Horario de las rcunioncs publicas:
Martes, 9 de enero dcl 2018, 5:30-7:00 p.m., Departamcnlo de
Transporte de Nuevo Mexico, 2912 E. Pinc St, Deming. NM
88030. Tel.: [phone].
Miercolcs, 10 de enero del 2018, 5:30-7:00 p.m., Dcpartamcnlo dcl
Medio Ambiente de Nuevo Mexico, 230 I Entmda dcl Sol, Las
Cruces, NM 8800 I. Tel.: [phone].
Juevcs, 11 de cncro de] 2018, 2:00-3:30 p.m., Dcpartamento del
Medio Ambienle de Nuevo Mexico, 525 Camino de loi Marquez,
Snnta Fe, NM 87505. Tel.: (SOS) 476-4300.
Pam mas infonnaci6n sobrc cl polvo sueho en Nuevo Mexico, por
favor visite nuestro silio en la red: www.cnv.nm gov/airquality/dust-main-pagc/. Pam mas informaci6n sobrc los requisilos
dcl plan de miligaci6n, visile: www.epa.gov/air-quali1ynnalysis/trea1ment-air-quality-data-infiuenced-exceptional-even1S.
El NMED no discrimina por raza, color, lugar de origen,
discapacidad, edad o gc!nero en la adminis1raci6n de sus programas
o aclividades, como lo rcquiercn las leyes y nonnas pcrtinenlcs, El
NMED cs responsablc de coordinar los esfuerzos para cumplir con
estos rcquisilos y tambic!n rccibir consultas relacionadas a los
rcquisilos de no discriminaci6n implementados por la 40 C.F.R.
Parte 7, incluso cl Tltulo VI de la Ley de Dercchos Civilcs de
1964, en su forma enmcndada; la Scccion 504 de la Ley de
Rchabilitaci6n de 1973 la Ley de Discriminaci6n por Edad de
1975, T[tulo IX de las Enmiendas de Educaci6n de 1972, y la
Secci6n 13 de las Enmiendas de 1972 a la Ley Federal de Control
de Contwninaci6n dcl Agua. Si Ud. ticnc prcguntas sobre cste
aviso o cualquiera de los prograrnas, polfticas o procedimicntos de
no discriminaci6n de] NMED, se pucdc comunicar con:
Kristine Pintado, Non-Discrimination Coordinalor
New Mexico Environmenl Dcpartmcnl
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone] nd coordinator@:stale.nm.us
.
Si crce quc ha sido discriminado-a con relaci6n a un progrnma o
actividad dcl NMED, sc puedc comunicar con la coordinadora
antidiscriminaci6n mencionada arriba o visitar nuestro silio
eleclr6nico: ht1ps://www.env.nm.gov/non-cmployccdiscrimination-complaint-pagc/
para aprendcr mas sabre c6mo y d6nde prcsentar una queja de
discriminacion.
Pub/11227513
Run Dale: Dec. 29, 2017

LAS CRUOJ$ SUN-NEWS
-

PROOF OF PUBLICATION
I, being duly sworn, Rynni Henderson deposes
and says that she is the President of Las Cruces
Sun-News, a newspaper published daily in the
county of Dona Ana, State of New Mexico; that
the 1227526 is an exact duplicate of the notice
that was published once a week/day in regular
and entire issue of said newspaper and not in
any supplement thereof for 1 consecutive
week(s)/day(s), the first publication was in the
issue dated December 30, 2017, the last
publication was December 30, 2017.
Despondent further states this newspaper is
duly qualified to publish legal notice or
advertisements within the meaning of Sec.
Chapter 167, Laws of 1937.

Sign~

Pre,0

;L_,

Official Position

day of

vD'\LM II~ C4

The New Mexico Environment Department will conduct
public outreach meetings regarding the development of a
dust mitigation plan, adoption of a fugitive dust rule, and
repeal of the New Mexico Total Suspended Particulate
Standard. These meetings will be held in Deming
(1/9/2018), Las Cruces (l/l0/2018), and Santa Fe
(1 /1 1/2018) where representatives of the Environment
Department will provide background infonnation and the
required elements of a mitigation plan, rule adoption and
rule repeal. Also, the department will solicit public input on
the scope and objective of each action to guide the
department in its efforts.
Public Outreach Meeting Schedule:
Tuesday, January 9, 2018, 5:30-7:00 p.m., NM Department
of Transportation, 2912 E. Pine St., Deming, NM 88030.
Phone: [phone].
Wednesday, January 10, 2018, 5:30-7:00 p.m., NM
Environment Department, 2301 Entrada del Sol, Las
Cruces, NM 88001. Phone: [phone].
Thursday, January 11, 2018, 2:00-3:30 p.m., NM
Environment Department, Air Quality Bureau, 525 Camino
de las Marquez, Santa Fe, NM 87505. Phone: [phone].
If you plan to attend the meeting in Santa Fe, please notify

STATE OF NEW MEXICO
ss.
County of Dona Ana
Subscribed and sworn before me this

~

"--.

/p.lYU4 /JIQ,d ZOl 8

fL>t!l fuio& \[~

t
Notary Public in and for
Dona Ana County, New Mexico

Kerwin Singleton at [phone] or
[e-mail].
For more information on blowing dust in New Mexico
please visit our website at www.env.nm.gov/airquality/dust-main-page/. For more information about
mitigation plan requirements please visit www.epa.gov/airquality-analysis/treatment-air-quality-data-innuencedexceptional-events.
NMED does not discriminate on the basis of race, color,
national origin, disability, age or sex in the administration
of its programs or activities, as required by applicabh: laws
and regulations. NMED is responsible for coordination of
compliance efforts and receipt of inquiries concerning nondiscrimination requirements implemented by 40 C.F.R. Part
7, including Title VI of the Civil Rights Act of 1964, as
amended; Section 504 of the Rehabilitation Act of 1973;
the Age Discrimination Act of 1975, Title IX of the
Education Amendments of 1972, and Section 13 of the
Federal Water Pollution Control Act Amendments of 1972.
If you have any questions about this notice or any of
NMED's non- discrimination programs, policies or
procedures, you may contact:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., SuiteN4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
JAN l
[e-mail]

REC 'VE
11
G2018

Air Quality Bureau

LAS CRUQJI SUN-NEWS
If you believe that you have been discriminated against
with respect to a NMED program or activity, you may
contact the Non-Discrimination Coordinator identified
above or visit our website at https://www.env.nm.gov/noncmployee-discrimination-complaint-page/ to learn how and
where to file a complaint of discrimination.
El Dcpartamento dcl Media Ambiente de Nucvo Mexico
llevara a cabo reuniones ptiblicns de divulgaci6n con
rcspecto al desarrollo de un plan de mitigaci6n de polvo,
adopci6n de una nonna de polvo fugitivo y derogaci6n dcl
Estandnr de\ total de pnrticulns suspendidas de Nucvo
Mexico. Las reuniones se llevaran a cabo en enero de 2018
en Deming (el 9), Las Cruces (el 10) yen Santa Fe (el 11) y
alli representnntcs de\ Depnrtnmento de\ Media Ambiente
proveeran los nntecedentes y elcmentos que se requieren de
un plan de mitigaci6n, adopci6n de normns y derogaci6n de
nonnas. lgualmente, el depnrtnmento solicitara la opinion
ptiblica sobrc el alcnncc y objetivo de cada acci6n para
orientarse en sus csfuerzos.
Horario de las reunioncs ptiblicas:
Martes, 9 de encro del 2018, 5:30-7:00 p.m., Depnrtamento
de Trnnsporte de Nucvo Mexico, 2912 E. Pine St., Deming,
NM 88030. Tel.: [phone].
Miercoles, 10 de cncro de\ 2018, 5:30-7:00 p.m.,
Depnrtamento de[ Media Ambicnlc de Nuevo Mexico,
2301 Entrada del Sol, Las Cruces, NM 88001. Tel.: (575)
288-2050.
Jueves, 11 de encro del 2018, 2:00-3:30 p.m.,
Dcpartamcnto dcl Media Ambiente de Nuevo Mexico, 525
Camino de los Marquez, Santa Fe, NM 87505. Tel.: (505)
476-4300.
Para mas informaci6n sabre el potvo suelto en Nuevo
Mexico, por favor visite nuestro sitio en la red:
www.env.nm.gov/nir-qualily/dust-main-page/. Para mos
informaci6n sabre los requisitos del plan de mitigaci6n,
visitc: www.epn.gov/nir-quality-annlysis/treatment-airqunlity-data-influenced-exceptional-events.
El NMED no discrimina par rnza, color, luger de origen,
discapacidnd, edad o genera en la administraci6n de sus
programas o actividades, coma lo requiercn las !eyes y
normas peninentes. El NMED cs responsable de coordinnr
los csfuerzos para cumplir con cstos requisites y tambien
rccibir consultas rclacionadns a los requisites de no
discriminaci6n implementados par la 40 C.F.R. Pnrte 7,
incluso el Titulo VI de la Ley de Derechos Civiles de 1964,
en su fonna enmendada; la Secci6n 504 de la Ley de
Rehabilitaci6n de 1973 la Ley de Discriminaci6n por Edad
de 1975, Tftulo IX de las Enmiendas de Educaci6n de
1972, y la Secci6n 13 de las Enmiendas de 1972 a la Ley
Federal de Control de Contnminaci6n del Agua. Si Ud.
tienc preguntas sobre este nviso o cualquiera de los
programas, politicas o procedimientos de no discriminaci6n
de[ NMED, se pucde comunicar con:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050

P.O. Box 5469
Santa Fe, NM 87502
[phone] [e-mail]

Si crec quc ha sido discriminado-a con relaci6n a un
programa o actividad del NMED, se puede comunicar con
la coordinadora antidiscriminaci6n mencionada nrriba o
visitar nucstro sitio elcctr6nico:
https://www.env.nm.gov/non-employee-discriminationcomplaint-pagc/
para aprcnder mas sobre coma y dondc prcsenlnr una qucja
de discriminacion.
Pub# 1227526
Run Date: Dec. 30, 2017

From:
To:
Subject:
Date:

New Mexico Environment Department
Baca, Michael, NMENV
Dust Mitigation Plan and Fugitive Dust Control Rule
Wednesday, April 4, 2018 5:00:52 PM
Air Quality Bureau seeking public input on draft plan and proposed rule for Doña Ana and Luna counties.

Air Quality Bureau
Regulatory and SIP Bulletin
Having trouble viewing this email? View it as a Web page.
The Air Quality Bureau has developed a draft dust mitigation plan and proposed
fugitive dust control rule for Doña Ana and Luna counties in southern New Mexico.
Mitigation plans are required by the U.S. Environmental Protection Agency (EPA)
in areas where recurring natural events (in this case, high winds resulting in
blowing dust) cause exceedances of the health based national standards for
Particulate Matter.
Some of the required elements of a mitigation plan include:
·

Steps to identify and study sources of dust;

·
Mandatory or voluntary control measures to abate sources of dust that cause
or contribute to exceedances of the standards to better protect public health;
·
Public education and notification programs aimed at reducing individuals’
exposure to unhealthy levels of particulate matter in the air before, during, and after
high wind events; and
·

Public review and periodic evaluation of the mitigation plan.

Draft documents of the dust mitigation plan and fugitive dust control rule may be
downloaded here. The Air Quality Bureau will accept comments on the draft
documents through April 30, 2018. Although this is considered an informal
comment period, the Bureau plans to respond to every submission received and
incorporate input as appropriate. A formal comment period will be held in
conjunction with the rule making process and will be announced at a later date.

For more information on blowing dust in New Mexico please click here. For more
information about mitigation plan requirements please visit EPA’s Exceptional

Events website.

For additional information concerning this bulletin and to submit comments on the
draft documents, please contact Michael Baca at [phone] or
[e-mail]
NMED does not discriminate on the basis of race, color, national origin, disability, age or sex in
the administration of its programs or activities, as required by applicable laws and regulations.
NMED is responsible for coordination of compliance efforts and receipt of inquiries concerning
non-discrimination requirements implemented by 40 C.F.R. Part 7, including Title VI of the Civil
Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1973; the Age
Discrimination Act of 1975; Title IX of the Education Amendments of 1972; and Section 13 of
the Federal Water Pollution Control Act Amendments of 1972. If you have any questions about
this notice or any of NMED's non-discrimination programs, policies or procedures, you may
contact:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
[e-mail]
If you believe that you have been discriminated against with respect to an NMED program or
activity, you may contact the Non-Discrimination Coordinator identified above, or visit our
website at https://www.env.nm.gov/non-employee-discrimination-complaint-page/ to learn how
and where to file a complaint of discrimination.

NMED Air Quality Bureau
525 Camino de los Marquez, Suite 1
Santa Fe, New Mexico, 87505-1816
[phone]

Stay Connected with New Mexico Environment Department

NEWMEXICO

--·~J
-_

Commission of Public Records
at the State Records Center and Archives
Yo ur Access to Public Inform ation

Affidavit of Publication in New Mexico Register

I, Matthew Ortiz, certify that the agency noted on Invoice # 3333 has published legal
notice of rulemaking or rules in the NEW MEXICO REGISTER, VOLUME XXIX, that
payment has been assessed for said legal notice of rulemaking or rules, which appears on the
publication date and in the issue number noted on Invoice # 3333 , and that Invoice # 3333 has
been sent electronically to the person(s) listed on the Billing Information Sheet provided by the
agency.

f~

Affiant:

Matthew Ortiz /

d/0,/,L,

Subscribed, sworn and acknowledged before me this__ _ day of June, 2018.
~

Notary Public:
My Commission Expires:

1205 Camino Carlos Rey I Santa Fe, NM 87507 I nmcpr.state.nm.us
Robert). Torrez

Hon. Hector Balderas

Historian/Chair

Attorney General

Hon.\V'ayneJohnson

Hon. Maggie Toulouse Oliver

Secretary ofState

State Auditor

Veronica Gonzales

Ned Fuller

Lynne S. Rhys

Department of Cultural Affair

General Services Department

State Law Librarian

AFFIDAVIT OF PUBLICATION
STATE OF NEW MEXICO
NEWMEXICOENVIRO
NMENTALIMPROVEM
ENTBOARDNOTICEOF
RULEMAKINGHEARIN
GTHENEWMEXICOEN
VIRONMENTALIMPRO
VEMENTBOARDBOAR
DWILLHOLDAPUBLIC
HEARINGON

County of Bernalillo

SS

Bernadette Gonzales , the undersigned, on oath states that she is an authorized Representative of

The Albuquerque Journal, and that this newspaper is duly qualified to publish legal notices
or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, and that
payment therefore has been made of assessed as court cost; that the notice, copy of which hereto
attached, was published in said paper in the regular daily edition, for 1 time(s) on the following
date(s):
06/17/2018

OFFICIAL SEAL

Anita L. Montoya
NOTARY PUBLIC

and

32_ 34
PRICE _ _$__ 5_·_ _ _ _ _ _ _ _ _ _ _ __

Statement to come at the end of month.
ACCOUNT NUMBER

1007594

AFFIDAVIT OF PUBLICATION
STATE OF NEW MEXICO
County of Bernalillo
JUNTADEMEJORAAM
BIENTALDENUEVOME
XICOAVISODEAUDIEN
CIASOBREREGLAMEN
TACIONLAJUNTADEM
EJORAAMBIENTALDE
NUEVOMEXICOJUNTA
CELEBRARAUNAAUDI
EN

SS

Bernadette Gonzales , \he undersigned, on oath states that she is an authorized Representative of
The Albuquerque Journal, and that this newspaper is duly qualified to publish legal notices
or advertisements within the meaning of Section 3, Chapter 167, Session Laws of 1937, and that
payment therefore has been made of assessed as court ~st;
the notice: copy of which her~to
attached, was published in said paper in the regular daily ed1t1on, for .1 t,me(s} on the following

:~at

date(s):
06/17/2018

OFFICIAL SEAL

Anita L. Montoya
and

PRICE _ _
$_3_86_._1s _ _ _ _ _ _ _ _ _ _ __
_

Statement to come at the end of month.
ACCOUNT NUMBER

1007594

Dellling Headlight
AFFIDAVIT OF PUBLICATION
Ad No.

0001250769

Carol Rideout
NM ENVIROMENT DEPT/AIR QUALITY BUREAU
525 CAMINO DE LOS MARQUEZ SUITE 1
SANTA FE NM 87507

I, a legal clerk of the Deming Headlight, a
newspaper published weekly in the county of
Luna, state of New Mexico and of general paid
circulation in said county; that the same is a duly
qualified newspaper under the laws of the State
wherein legal notices and advertisements may
be published; that the printed notice attached
hereto was published in the regular and entire
edition of said newspaper and not in supplement
thereof on the date as follows, to wit:
06/15/18

Despondent further states this newspaper is
duly qualified to publish legal notice or
advertisements within the meaning of Sec.
Chapter 167, Laws of 1937.

Subscribed and sworn before me this
15th of June 2018.

State of WI, County of Brown
NOTARY PUBLIC

Ad#:0001250769
PO: 29214
# of Affidavits :0.00

TARA MONDLOCH
Notary Public
State of Wisconsin

NEW MEXICO ENVIRONMENTAL
IMPROVEMENT BOARD
NOTICE OF RULEMAKING HEARING
The New Mexico Environmental Improvement
Board ("Board") will hold a public hearing on
September 28, 2018, at 9:30 a.m., at the New
Mexico Farm and Ranch Heritage Museum,
4100 Dripping Springs Road, Las Cruces, New
Mexico. The purpose of the hearing is to consider the matter of EIB 18-05(R), the proposed
adoption of an Air Quality Control Regulation to
be codified in the New Mexico Administrative
Code (NMAC) at 20.2.23 NMAC, Fugitive Dust
Control.
The proponent of this regulatory amendment is
the New Mexico Environment Department
("NMED") Air Quality Bureau.
The U.S. Environmental Protection Agency published revisions to the Exceptional Events Rule
on October 3, 2016, requiring mitigation plans
in certain areas with recurring exceptional
events of the same type and pollutant. The proposed regulation is a supporting element of the
dust mitigation plan required by the federal Exceptional Events Rule. The proposed regulation
will apply to sources of fugitive dust that are
not required to obtain a construction permit
from the NMED and will be applicable in any
area of the state that experiences recurring
high wind dust events where the PMlO and/or
the PM2.5 NAAQS is exceeded. Currently this
includes Luna County and the Anthony PMlO
nonattainment area in Dona Ana County.
The full text of NMED's proposed regulation is
available on the Air Quality Bureau's web site at
https://www.env.nm.gov/air-quality/proposedregs/ or by contacting Michael Baca at 575915-1091 or [e-mail]. The
proposed regulation may also be examined during regular business hours at the Air Quality
Bureau office, 525 Camino de los Marquez,
Suite 1, Santa Fe, New Mexico, 87505.
The hearing will be conducted in accordance
with Board Rulemaking Procedures (20.1.1
NMAC),; the Environmental Improvement Act,
Section 74-1-9 NMSA 1978; the Air Quality Control Act, Section 74-2-6 NMSA 1978; the State
Rules Act, Section 14-4-5.3 NMSA 1978; and
other applicable procedures.
All interested persons will be given reasonable
opportunity at the hearing to submit relevant
evidence, data, views, and arguments, orally or
in writing; to introduce exhibits; and to examine witnesses. Persons wishing to present
technical testimony must file with the Board a
written Notice of Intent to do so. The Notice of
Intent shall:
(1) identify the person for whom the

witness(es) will testify;
(2) identify each technical witness the person
intends to present and state the qualifications
of that witness, including a description of their
educational and work background;
(3) include a copy of the direct testimony of
each technical witness in narrative form;
(4) include the text of any recommended modifications to the proposed regulatory change;
and
(5) list and attach all exhibits anticipated to be
offered by that person at the hearing, including
any proposed statement of reasons for adoption of rules.
Notices of Intent to present technical testimony at the hearing must be received in the Office
of the Board not later than 5:00 pm on September 7, 2018, and should reference the docket
number, EIB 18-05(R), and the date of the hearing. Notices of Intent to present technical testimony should be submitted to:
Pam Castaneda, Administrator for Boards &
Commissions
Environmental Improvement Board
c/o New Mexico Environment Department
P. 0. Box 5469
Santa Fe, NM 87502
Phone: [phone], Fax [phone]
email: [e-mail]
Any member of the general public may testify
at the hearing. No prior notification is required
to present non-technical testimony at the hearing. Any such member may also offer nontechnical exhibits in connection with their testimony, so long as the exhibit is not unduly repetitious of the testimony.
A member of the general public who wishes to
submit a written statement for the record, in
lieu of providing oral testimony at the hearing,
shall file the written statement prior to the
hearing to the above listed address, or submit
it at the hearing.
Persons having a disability and requiring assistance, an interpreter, or an auxiliary aid or other service to participate in this hearing process
should contact Pam Castaneda, Administrator
for Boards & Commissions, at least ten days
prior to the meeting or as soon as possible at
the above address or e-mail
[e-mail]. TDY users
please access her number via the New Mexico
Relay Network at 1-800-659-8331.
The Board may make a decision on the proposed regulation adoption at the conclusion of
the hearing, or may convene a meeting after
the hearing to consider action on the proposal.
Notice of Non-Discrimination
NMED does not discriminate on the basis of
race, color, national origin, disability, age or sex
in the administration of its programs or activities, as required by applicable laws and regulations. NMED is responsible for coordination of
compliance efforts and receipt of inquiries concerning non-discrimination requirements im-

plemented by 40 C.F.R. Part 7, including Title VI
of the Civil Rights Act of 1964, as amended;
Section 504 of the Rehabilitation Act of 1973;
the Age Discrimination Act of 1975, Title IX of
the Education Amendments of 1972, and Section 13 of the Federal Water Pollution Control
Act Amendments of 1972. If you have any
questions about this notice or any of NMED's
non-discrimination programs, policies or procedures, you may contact:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
[e-mail]
If you believe that you have been discriminated
against with respect to an NMED program or
activity, you may contact the NonDiscrimination Coordinator identified above or
visit our website at to
https://www.env.nm.gov/non-employeediscrimination-complaint-page/ to learn how
and where to file a complaint of discrimination.
Pub#l250769 Run Dates: June 15, 2018

Deining Headlight
AFFIDAVIT OF PUBLICATION
Ad No.

0001250771

Carol Rideout
NM ENVIROMENT DEPT/AIR QUALITY BUREAU
525 CAMINO DE LOS MARQUEZ SUITE 1
SANTA FE NM 87507

I, a legal clerk of the Deming Headlight, a
newspaper published weekly in the county of
Luna, state of New Mexico and of general paid
circulation in said county; that the same is a duly
qualified newspaper under the laws of the State
wherein legal notices and advertisements may
be published; that the printed notice attached
hereto was published in the regular and entire
edition of said newspaper and not in supplement
thereof on the date as follows, to wit:
06/15/18

Despondent further states this newspaper is
duly qualified to publish legal notice or
advertisements within the meaning of Sec.
Chapter 167, Laws of 1937.

Subscribed and sworn before me this
15th of June 2018.

c:Jtt1a mmd/JJcb
State of WI, County of Brown
NOTARY PUBLIC

My C
Ad#:0001250771
PO: 29214
# of Affidavits :0.00

mission Expires

TARA MONDLOCH
Notary Public
State of Wisconsin

JUNTA DE MEJORA ~MBIENTAL DE NUEVO
MEXICO
AVISO DE AUDIENCIA,SOBRE
REGLAMENTACION
La Junta de Mejora Ambiental de Nuevo Mexico
("Junta") celebrara una audiencia publica el 28
de septiembre de 2018, a las 9:30 a.m., en New
Mexico Farm and Ranch Heritage Museum,
4100 Dripping Springs Road, Las Cruces, New
Mexico. El prop6sito de la audiencia es
examinar el asunto de BEi 18-05 (R), la
adopci6n propuesta de la codificaci6n del
Reglamento de Control de Calidad del Aire en el
C6digo Administrative de Nuevo Mexico
(NMAC) en 20.2.23 NMAC, Control de Paiva
Fugitive.
El autor de esta enmienda regulatoria es la
Oficina de Calidad del Aire del Departamento
de Media Ambiente de Nuevo Mexico ("NMED",
par su sigla en ingles).
La Agencia de Protecci6n Ambiental de EE. UU.
public6 revisiones al Reglamento de Eventos
Excepcionales el 3 de octubre de 2016, que
requieren planes de mitigaci6n en ciertas areas
con eventos excepcionales recurrentes del
mismo contaminante y tipo. La regulaci6n
propuesta es un elemento de apoyo del plan de
mitigaci6n de polvo requerido par el
reglamento federal de eventos excepcionales.
La regulaci6n propuesta se aplicara a las
fuentes de polvo fugitive que no requieren la
obtenci6n de un permiso de construcci6n de
NMED y sera aplicable en cualquier area del
estado que experimente eventos recurrentes
de polvo de vientos fuertes donde el PMlO y/o
el PM2.5 NAAQS es rebasado. Actualmente
esto incluye el condado de Luna y el area de no
cumplimiento PMlO de Anthony, en el condado
de Dona Ana.
El texto complete de la regulaci6n propuesta
par NMED esta disponible en el sitio web de la
Oficina de Calidad del Aire en
https://www.env.nm.gov/air-quality/proposedregs/
o comunicandose con Michael Baca, par
telefono 575-915-1091 o par correo electr6nico
[e-mail]. La regulaci6n
propuesta tambien puede ser examinada
durante horas habiles en la Oficina de Calidad
del Aire, 525 Camino de las Marquez, Suite 1,
Santa Fe, New Mexico, 87505.
La audiencia se llevara a cabo de acuerdo con
las Procedimientos de Reglamentaci6n de la
Junta (20.1.1 NMAC); la Ley de Mejora
Ambiental, Secci6n 74-1-9 NMSA 1978; la Ley
de Control de Calidad del Aire, Secci6n 74-2-6
NMSA 1978; la Ley de Reglas del Estado,
Secci6n 14-4-5.3 NMSA 1978; y otros
procedimientos aplicables.

A todas las personas interesadas se les dara
una oportunidad razonable en la audiencia para
presentar evidencias, datos, puntos de vista y
argumentos relevantes, oralmente o por
escrito; presentar documentos y/u objetos de
prueba; y examinar a los testigos. Las personas
que deseen presentar un testimonio de
caracter tecnico deberan presentar por escrito
a la Junta una Notificaci6n de lntenci6n de
presentar dicho testimonio. La Notificaci6n de
lntenci6n debera:
(1) identificar a la persona por la cual testificara
el/los testigo/s;
(2) identificar a cada testigo tecnico que la persona tiene la intenci6n de presentar y
establecer las cualificaciones de cada testigo,
incluida una descripci6n de su historial
academico y laboral;
(3) incluir una copia del testimonio directo de
cada testigo tecnico en forma narrativa;
(4) incluir el texto de cualquier modificaci6n
recomendada al cambio regulatorio propuesto;

y
(5) hacer una lista y adjuntar todos los
documentos y/u objetos de pruebas que se
anticipa que esa persona ofrecera en la
audiencia, incluyendo cualquier declaraci6n
propuesta de motivos para la adopci6n de las
reglas.
Las Notificaciones de lntenci6n para presentar
testimonio tecnico en la audiencia deberan
recibirse en la oficina de la Junta no mas tarde
de las 5:00 p. m. del dfa 7 de septiembre de
2018, y deben incluir como referenda el
numero de expediente EIB 18-05 (R) y la fecha
de la audiencia. Las Notificaciones de lntenci6n
para presentar un testimonio tecnico deben
enviarse a:
Pam Castaneda, Administrator for Boards &
Commissions
Environmental Improvement Board
c/o New Mexico Environment Department
P. 0. Box 5469
Santa Fe, NM 87502
Phone: [phone], Fax [phone]
email: [e-mail]
Cualquier miembro del publico puede testificar
en la audiencia. No se requiere notificaci6n
previa para presentar un testimonio no tecnico
en la audiencia. Cualquiera de estos miembros
tambien pueden ofrecer documentos y/u
objetos de prueba que no sean de caracter
tecnico en relaci6n con su testimonio, siempre
y cuando los documentos y/u objetos de
prueba no sean excesivamente repetitivos del
testimonio.
Un miembro del publico que desee presentar
una declaraci6n escrita para que conste en
actas, en lugar de proporcionar una declaraci6n
oral en la audiencia, debera presentar la
declaraci6n por escrito antes de la audiencia a
la direcci6n mencionada anteriormente, o
presentarla durante la audiencia.
Las personas que tienen una discapacidad y
requieren asistencia, un interprete, un

dispositivo un auxiliar u otro servicio para
participar en este proceso de audiencia debe
comunicarse con Pam Castaneda,
Administradora de Juntas y Comisiones, al
menos diez dfas antes de la reunion o tan pronto como sea posible a la direcci6n anterior o
por correo electr6nico
[e-mail]. Los usuarios de
TDY pueden acceder a su numero a traves de la
Red de Retransmisi6n de Nuevo Mexico (New
Mexico Relay Network) llamando al 1-800-6598331.
La Junta puede tomar una decision sobre la
adopci6n del reglamento propuesto al final de
la audiencia, o puede convocar una reunion
despues de la audiencia para considerar la
acci6n a tomar sobre la propuesta.
Aviso de No Discriminacion
El Departamento de Medio Ambiente de Nuevo
Mexico (NMED) no discrimina por motivos de
raza, color, origen nacional, discapacidad, edad
o sexo en la administracion de sus programas o
actividades, segun lo exigido por las leyes y
reglamentos correspondientes. NMED es
responsable de la coordinaci6n de los esfuerzos
de cumplimiento y la recepci6n de consultas
relativas a los requisitos de no discriminacion
implementados por 40 C.F.R., partes 5 y 7,
incluido el Tftulo VI de la Ley de Derechos
Civiles de 1964, segun enmendada; Seccion
504 de la Ley de Rehabilitacion de 1973; la Ley
de Discriminacion por Edad de 1975, Tftulo IX
de las Enmiendas de Educacion de 1972 y la
Secci6n 13 de las Enmiendas a la Ley Federal de
Control de Contaminacion del Agua de 1972. Si
usted tiene preguntas sobre este aviso o sabre
cualquier programa, polftica o procedimiento
de no discriminaci6n de NMED, usted puede
comunicarse con la Coordinadora de No
Discri minacion:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
[e-mail]
Si usted piensa que ha sido discriminado/a con
respecto a un programa o actividad de NMED,
puede comunicarse con la Coordinadora de No
Discriminacion antes indicada o visitar nuestro
sitio web en https://www.env.nm.gov/nonemployee-discrimination-complaint-page/ para
aprender como y donde presentar una queja de
discriminacion.
Pub#l250771 Run Dates: June 15, 2018

LAS CRUC~ SUN-NEWS
AFFIDAVIT OF PUBLICATION
Ad No.

0001250961

NEW MEXICO ENVIRONMENT DEPT
1190 ST. FRANCIS
SANTA FE NM 87502

I, a legal clerk of the Las Cruces Sun-News, a
newspaper published daily at the county of Dona
Ana, state of New Mexico and of general paid
circulation in said county; that the same is a duly
qualified newspaper under the laws of the State
wherein legal notices and advertisements may
be published; that the printed notice attached
hereto was published in the regular and entire
edition of said newspaper and not in supplement
thereof on the date as follows, to wit:
06/15/18

Despondent further states this newspaper is
duly qualified to publish legal notice or
advertisements within the meaning of Sec.
Chapter 167, Laws of 1937.

Legal Clerk
STATE OF WISCONSIN
County of Brown
SS.
Subscribed and sworn before me this
20th of July 2018.

NOTARY PUBLIC in and for
Brown County, Wisconsin

TARA MONDLOCH
Notary Public
State of Wisconsin

Myommission Expires
Ad#:0001250961

PO :
# of Affidavits :0.00

NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD
NOTICE OF RULEMAKING HEARING
The New Mexico Environmental Improvement Board ("Board") will hold
a public hearing on September 28, 2018, at 9:30 a.m., at the New Mexico
Farm and Ranch Heritage Museum 4100 Dripping Springs Road, Las
Cruces, New Mexico. The purpose of the hearing Is to consider the mat·
ter of EIB 18-0S(R), the proposed adoption of an Air Quality Control Reg·
ulatlon to be codified In the New Mexico Administrative Code (NMAC) at
20.2.23 NMAC, Fugitive Oust Control.
The proponent of this regulatory amendment Is the New Mexico Envl·
ronment Department ("NMED") Air Quality Bureau.
The U.S. Environmental Protection Agency published revisions to the Ex·
ceptional Events Rule on October 3, 2016, requiring mitigation plans In
certain areas with recurring exceptional events of the same type and
pollutant. The proposed regulation Is a supporting element of the dust
mitigation plan required by the federal Exceptional Events Rule. The pro·
posed regulation will apply to sources of fugitive dust that are not re·
quired to obtain a construction permit from the NMED and will be appli·
cable In any area of the state that experiences recurring high wind dust
events where the PMlO and/or the PM2.5 NAAQS Is exceeded. Currently
this includes Luna County and the Anthony PMIO nonattalnment area In
Doiia Ana County.
The full text of NMED's proposed regulation Is available on the Air Quall·
ty Bureau's web site at https://www.env.nm.gov/alr-quality/proposed·
regs/ or by contacting Michael Baca at 575-915·1091 or
[e-mail]. The proposed regulation may also be ex·
amined during regular business hours at the Air Quality Bureau office,
525 Camino de los Marquez, Suite 1, Santa Fe, New Mexico, 87505.
The hearing will be conducted in accordance with Board Rulemaklng
Procedures (20.1.1 NMAC),h· the Environmental Improvement Act, Sec·
tion 74·1·9 NMSA 1978; t e Air Quality Control Act, Section 74-2·6
NMSA 1978; the State Rules Act, Section 14-4-5.3 NMSA 1978; and other
applicable procedures.
All Interested persons will be given reasonable opportunity at the hear·
ing to submit relevant evidence, data, views, and arguments, orally or in
writing; to Introduce exhibits; and to examine witnesses. Persons wish·
Ing to present technical testimony must file with the Board a written No·
tice of Intent to do so. The Notice of Intent shall:
(1) identify the person for whom the witness(es) wlil testify;
(2) identify each technical witness the person intends to present and
state the qualifications of that witness, lncludlng a description of their
educational and work background;
(3) Include a copy of the direct testimony of each technical witness in
narrative form;
(4) include the text of any recommended modifications to the proposed
re9ulatory change; and
(5) list and attach all exhibits anticipated to be offered by that person at
the hearing, Including any proposed statement of reasons for adoption
of rules.

Notices of Intent to present technical testimony at the hearing must be
received In the Office of the Board not later than 5:00 pm on September
7, 2018, and should reference the docket number, EIB 18-0S(R), and the
date of the hearing. Notices of Intent to present technical testimony
should be submitted to:
Pam Castaneda, Administrator for Boards & Commissions
Environmental Improvement Board
c/o New Mexico Environment Department
P. 0. Box 5469
Santa Fe, NM 87502
Phone: [phone], Fax [phone]
email: [e-mail]
Any member of the general public may testify at the hearing. No prior
notification Is required to present non-technical testimony at the hearing. Any such member may also offer non-technical exhibits in connection with their testimony, so long as the exhibit Is not unduly repetitious
of the testimony.

A member of the general public who wishes to submit a written statement for the record, in lieu of providing oral testimony at the hearing,
shall file the written statement prior to the hearing to the above listed
address, or submit It at the hearing.
Persons having a disability and requiring assistance, an Interpreter, or an
auxiliary aid or other service to participate In this hearing process should
contact Pam Castaneda, Administrator for Boards & Commissions, at
least ten days prior to the meeting or as soon as possible at the above
address or e-mail [e-mail]. TOY users please access
her number via the New Mexico Relay Network at 1-800-659-8331.
The Board may make a decision on the proposed regulation adoption at
the conclusion of the hearing, or may convene a meeting after the hearIng to consider action on the proposal.
Notice of Non-Discrimination
NMED does not discriminate on the basis of race, color, national origin,
disability, age or sex In the administration of Its programs or activities,
as required by applicable laws and regulations. NMED Is responsible for
coordination of compliance efforts and receipt of inquiries concerning
non-discrimination requirements implemented by 40 C.F.R. Part 7, Including Title VI of the Civil Rights Act of 1964, as amended; Section 504
of the Rehabilitation Act of 1973; the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, and Section 13 of the Federal Water Pollution Control Act Amendments of 1972. If you have any
questions about this notice or any of NMED's non-discrimination programs, policies or procedures, you may contact:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Or., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
[e-mail]
If you believe that you have been discriminated against with respect to
an NMED program or activity, you may contact the Non-Discrimination
Coordinator Identified above or visit our website at to
https://www .env. nm.gov/non-employee-discrl ml nation-com pl al ntpage/ to learn how and where to file a complaint of discrimination.
JUNTA DE MEJORA AMBIENTAL DE NUEVO MtxJCO
AVISO DE AUDIENCIA SOBRE REGLAMENTACION
La Junta de Mejora Amblental de Nuevo Mexico ("Junta") celebrara una
audiencla publica el 28 de septiembre de 2018, a las 9:30 a.m., en New
Mexico Farm and Ranch Heritage Museum, 4100 Dripping Springs Road!
Las Cruces, New Mexico. El prop6sito de la audlencia es examinar e
asunto de BEi 18-05 (R), la adopci6n propuesta de la codificaci6n del
Reglamento de Control de Calidad del Aire en el C6digo Admlnlstratlvo
de Nuevo Mexico (NMAC) en 20.2.23 NMAC, Control de Polvo Fugitive.
El autor de esta enmienda regulatorla es la Oflcina de Calidad del Aire
del Departamento de Medio Amblente de Nuevo Mexico ("NMED", par su
sigla en Ingles).
La Agencia de Protecci6n Amblental de EE. UU. public6 revisiones al
Reglamento de Eventos Excepcionales el 3 de octubre de 2016, que
requleren planes de mltlgacl6n en clertas areas con eventos
excepcionales recurrentes del mlsmo contaminante y tipo. La regulaci6n
propuesta es un elemento de apoyo del plan de mitigaci6n de polvo
requerldo par el reglamento federal de eventos excepcionales. La
regulaci6n propuesta se aplicara a las fuentes de polvo fugitive que no
requieren la obtencl6n de un permlso de construccl6n de NMED y sera
apllcable en cualquler area del estado que experlmente eventos
recurrentes de polvo de vlentos fuertes donde el PMlO y/o el PM2.5
NAAQS es rebasado. Actualmente esto lncluye el condado de Luna y el
area de no cumplimiento PMlO de Anthony, en el condado de Dona Ana.
El texto completo de la regulaci6n propuesta por NMED esta dlsponlble
en el sitio web de la Oficlna de Calldad del Aire en
https://www.env.nm.gov/air-quality/proposed-regs/ o comunicandose
con Michael Baca, par telefono 575-915-1091 o por correo electr6nlco

[e-mail]. La regulacl6n propuesta tamblen puede ser
examlnada durante horas hablles en la Oflclna de Calidad del Aire, 525
Camino de los Marquez, Suite 1, Santa Fe, New Mexico, 87505.
La audiencia se llevara a cabo de ac:uerdo con los Procedimientos de
Reglamentaci6n de la Junta (20.1.1 NMAC); la Ley de MeJora Ambiental,
Secci6n 74·1·9 NMSA 1978; la Ley de Control de Calidad del Aire,
Secci6n 74·2·6 NMSA 1978; la Ley de Reglas del Estado, Seccl6n 14-45.3 NMSA 1978; y otros procedimientos aplicables.
A todas las personas interesadas se les dara una oportunidad razonable
en la audlencia para presentar evidenclas, datos, puntos de vista y
ar_gumentos relevantes, oralmente o por escrito; presentar documentos
y/u objetos de prueba; y examinar a los testigos. Las personas que
deseen presentar un testimonio de caracter tecnico deberan presentar
por escrito a la Junta una Notificaci6n de lntenci6n de presentar dicho
testimonio. La Notiflcaci6n de lntenci6n debera:
(1) identificar a la persona por la cual testiflcara el/los testigo/s;
(2) identificar a cada testigo tecnico que la persona tiene la intenci6n de
presentar y establecer las cualificaclones de cada testigo, incluida una
descripci6n de su hlstorial academlco y laboral;
(3) lncluir una copia del testimonio dlrecto de cada testlgo tecnico en
forma narrativa;
(4) inclulr el texto de cualquier modificacl6n recomendada al camblo
regulatorlo propuesto; y
(5) hacer una llsta y adjuntar todos los documentos y/u objetos de
pruebas que se anticlpa que esa persona ofrecera en la audiencla,
lncluyendo cualquier declaraci6n propuesta de motivos para la adopci6n
de las reglas.
Las Notlficaclones de lntenci6n para presentar testimonio tecnlco en la
audlencia deberan recibirse en la oflclna de la Junta no mas tarde de las
5:00 p. m. del dra 7 de septlembre de 2018, y deben inclulr como
referencia el mimero de expediente EIB 18·05 (R) y la fecha de la
audlencia. Las Notiflcaclones de lntencl6n para presentar un testimonlo
tecnico deben enviarse a:
Pam Castaneda, Administrator for Boards & Commissions
Environmental Improvement Board
c/o New Mexico Environment Department
P.O. Box 5469
Santa Fe, NM 87502
Phone: (505) 827·2425, Fax [phone]
email: [e-mail]
Cualquier miembro del publlco puede testificar en la audlencia. No se
requiere notificaci6n previa para presentar un testimonio no tecnlco en
la audiencia. Cualquiera de estos miembros tambien pueden ofrecer
documentos y/u objetos de prueba que no sean de caracter tecnico en
relaci6n con su testimonio, siempre y cuando los documentos y/u
objetos de prueba no sean excesivamente repetltivos del testimonlo.
Un miembro del publico que desee presentar una declaraci6n escrita
para que conste en actas, en lugar de proporclonar una declaraci6n oral
en la audlencia, debera presentar la declaracl6n por escrito antes de la
audlencia a la direcci6n mencionada anteriormente, o presentarla
durante la audlencla.
Las personas que tienen una dlscapacidad y requleren aslstencia, un
lnterprete, un dispositivo un auxiliar u otro servicio para participar en
este proceso de audiencia debe comunicarse con Pam Castaneda,
Administradora de Juntas y Comisiones, al menos diez dfas antes de la
reunion o tan pronto como sea poslbie a la dlrecci6n anterior o por
correo electr6nico [e-mail]. Los usuarios de TOY
pueden acceder a su numero a traves de la Red de Retransmisi6n de
Nuevo Mexico (New Mexico Relay Network) llamando al 1-800-659-

8331

La Junta puede tomar una decisi6n sobre la adopci6n del reglamento
propuesto al final de la audlencia, o puede convocar una reuni6n
despues de la audiencla para considerar la accl6n a tomar sobre la
propuesta.
Aviso de No Discrimlnaci6n
El Departamento de Medio Ambiente de Nuevo Mexico (NMED) no

discrimlna por motivos de raza, color, orlgen nacional, dlscapacidad,
edad o sexo en la admlnlstraci6n de sus programas o actlvidades, segun
lo exlgldo por las leyes y reglamentos correspondientes. NMED es
responsable de la coordinaci6n de los esfuerzos de cumplimlento y la
recepci6n de consultas relatlvas a los requlsitos de no discrlminaci6n
lmplementados por 40 C.F.R., partes 5 y 7, lncluldo el Tftulo VI de la Ley
de Derechos Civlles de 1964, segun enmendada; Seccl6n 504 de la Ley
de Rehabllltacl6n de 1973; la Ley de Discriminaci6n par Edad de 1975,
Titulo IX de las Enmlendas de Educacl6n de 1972 y la Secci6n 13 de las
Enmlendas a la Ley Federal de Control de Contaminaci6n del Agua de
1972. Si usted tiene preguntas sabre este avlso o sabre cualquier
programa, polrtlca o procedlmiento de no dlscrlminacl6n de NMED,
usted puede comunlcarse con la Coordlnadora de No Discrlminaci6n:
Kristine Pintado, Non-Discrimination Coordinator
New Mexico Environment Department
1190 St. Francis Dr., Suite N4050
P.O. Box 5469
Santa Fe, NM 87502
[phone]
[e-mail]
SI usted piensa que ha sido dlscriminado/a con respecto a un programa
o actividad de NMED, puede comunicarse con la Coordinadora de No
Discrlmlnaci6n antes lndlcada o vlsitar nuestro sltio web en
https://www.env.nm.gov/non-employee-dlscrlminatlon-complaintpage/ para aprender c6mo y d6nde presentar una queja de
discrimlnaci6n.
Pub# 1250961
Run Date: June 15, 2018

From:
To:
Subject:
Date:

New Mexico Environment Department
Baca, Michael, NMENV
Notice of Rulemaking, Public Review and Comment Period
Wednesday, August 1, 2018 5:10:58 PM
Air Quality Bureau seeking public input on draft plan and proposed rule for Dona Ana and Luna counties.

Air Quality Bureau
Regulatory and SIP Bulletin
Having trouble viewing this email? View it as a Web page.
The Air Quality Bureau has developed a draft dust mitigation plan and proposed
fugitive dust control rule for Doña Ana and Luna counties in southern New Mexico.
Mitigation plans are required by the U.S. Environmental Protection Agency (EPA)
in areas where recurring natural events (in this case, high winds resulting in
blowing dust) cause exceedances of the health based national standards for
Particulate Matter.
The Air Quality Bureau will accept comments on the draft mitigation plan through
September 14, 2018. A public hearing for the adoption of the proposed fugitive
dust control rule will be held on September 28, 2018 in Las Cruces. To review
draft documents and for more information about the hearing and public
participation, please visit our proposed regulations website.
For more information on blowing dust in New Mexico please click here. For more
information about mitigation plan requirements please visit EPA’s Exceptional
Events website.

For additional information concerning this bulletin and participation opportunities,
please contact: Michael Baca, 2301 Entrada del Sol, Las Cruces, NM, 88001, (575)
915-1091, [e-mail].
NMED does not discriminate on the basis of race, color, national origin, disability, age or sex in
the administration of its programs or activities, as required by applicable laws and regulations.
NMED is responsible for coordination of compliance efforts and receipt of inquiries concerning
non-discrimination requirements implemented by 40 C.F.R. Part 7, including Title VI of the Civil
Rights Act of 1964, as amended; Section 504 of the Rehabilitation Act of 1973; the Age
Discrimination Act of 1975; Title IX of the Education Amendments of 1972; and Section 13 of
the Federal Water Pollution Control Act Amendments of 1972. If you have any questions about

this notice or any of NMED's non-discrimination programs, policies or procedures, send an
email to: [e-mail].
If you believe that you have been discriminated against with respect to an NMED program or
activity, you may contact the Non-Discrimination Coordinator identified above, or visit our
website at https://www.env.nm.gov/non-employee-discrimination-complaint-page/ to learn how
and where to file a complaint of discrimination.

NMED Air Quality Bureau
525 Camino de los Marquez, Suite 1
Santa Fe, New Mexico, 87505-1816
[phone]

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EXHIBIT 8

Case 1:19-cv-00969-TNM Document 44-1 Filed 05/15/19 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES HOUSE OF
REPRESENTATIVES,
Plaintiff,
V.

Case No. 1:19-cv-00969

STEVEN T. MNUCHIN, in his official
capacity as Secretary of the United States
Department of the Treasury, et al.,
Defendants.

DECLARATION OF PAUL ARCANGEL!

I, Paul Arcangeli, pursuant to the provisions of 28 U.S.C. § 1746 declare and say:
1.

I am the Staff Director of the House Armed Services Committee. I have worked

for the Committee in various roles since 2004. In 2010, I was appointed Staff Director. From
2011 to 2018, I served as Minority Staff Director. I began serving again as Staff Director in
January 2019.
2.

On April 25, 2019, the Department of Defense (DoD) submitted in writing to the

Committee responses to various Committee requests for information. One of the Committee's
questions was: "What is covered under GCC operational support? Are these 284 activities? Other
authorities? Why is there such a significant jump from FY18 actuals to FY19 and FY20 for
EUCOM, INDOPACOM and AFRICOM? Are FYI 8 actuals reflective of a shift to 333 ?" In
response, DoD wrote:
Al. For most commands, the CD Project titled "GCC operational Support" refers
to that portion of Geographic Combatant Commands' programs that support
activities executed under §284(b) and §284(c).
The exception is U.S.

Case 1:19-cv-00969-TNM Document 44-1 Filed 05/15/19 Page 2 of 2

SOUTHCOM, that also funds costs associated with §124 detection and monitoring
operations within this Project. Regarding the increases between FY18 actuals and
the FY19/20 levels for EUCOM, INDOPACOM and AFRICOM: Yes, some of this
was due to shifting some efforts to §333 and the associated growing pains of
working with the new Chapter 15 and 16 authorities. However, the primary factor
that led to curtailed support in FYI 8 was a combination of a continuing resolution,
followed by DoD Comptroller withholding over 84% ($94 7 million) of CD
appropriated funds for distribution until the 4th Quarter for possible use in
supporting Southwest Border construction last fiscal year. The funding was
ultimately released beginning in July, but the uncertainty generated caused
planning, Congressional notification, and execution deadlines to be missed.
3.

DoD's statement that the "DoD Comptroller with[held] over 84% ($947 million)

of [counter-drug] appropriated [FY 2018] funds for distribution until the 4th Quarter for possible
use in supporting Southwest Border construction last fiscal year" suggests that DoD was
considering using its counter-drug authority under 10 U.S.C. § 284 for southern border
construction in early 2018.
4.

I declare under penalty of perjury that the foregoing is true and correct. Executed

on May 15, 2019, in Washington, D.C.

c:J ()

\'~--

Paul Arcangeli

7

EXHIBIT 9

THE WHITE HOUSE
WASHINGTON

September 28, 2018

Dear Mr. Speaker:
In accordance with section 9023 of division A and section 113(b)
of division C of the Department of Defense and Labor, Health and
Human Services, and Education Appropriations Act, 2019 and
Continuing Appropriations Act, 2019 (H.R. 6157; the "Act 11 ) ,
I hereby designate for Overseas Contingency Operations/Global
War on Terrorism all amounts (including rescissions) and
contributions from foreign governments so designated by the
Congress in the Act pursuant to section 25l(b) (2) (A) of the
Balanced Budget and Emergency Deficit Control Act of 1985, as
outlined in the enclosed list of accounts.
The details of this action are set forth in the enclosed
memorandum from the Director of the Office of Management
and Budget.
Sincerely,

The Honorable Paul D. Ryan
Speaker of the
House of Representatives
Washington, D.C.
20515

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
W ASH INGTON, D. C .

THE DIRECTOR

20503

September 27, 2018

MEMORANDUM FO~ ~HE PRESIDENJ
FROM:

SUBJECT:

llf-::--

Mick Mulvaney
Director
..,.......--(

t,w1J

Designation of Funding for Overseas Contingency Operations/Global Wai
on Terrorism

Section 9023 of division A of the Department'ofDefense and Labor, Health and Human
Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019
(H.R. 6157; the "Act") provides that the availability of amounts ~ppropriated in such division of
the Act that is designated by the Congress for Overseas Contingency Operations/Global Wax on
Terrorism pursuant to section 251 (b )(2)(A) of the Balanced Budget and Emergency Deficit
Control Act of 1985 ("BBEDCA") is contingent upon the President subsequently so designating- ··
all such amounts and transmitting such designations to the Congress. In addition, section 113(b)
of division C of the Act provides that the availability of funds appropriated in such division of
the Act that is designated by the Congress for O:verseas Contingency Operations/Global Wax on
Terrorism pursuant to section 251(b)(2)(A) ofBBEDCA is contingent upon the President
subsequently so designating all such amounts and transmitting such designations to the
Congress.
The amounts ¥_pro ·ated by: the Act for
- -....-~~=-cover tlie in.ilitafy and civilian costsOverseas Contingency Operations/Global Wax
on Terrorism
necessary to achieve .S. national security
goals in Afghanistan, the broader Middle ~ and other designated conflict zones and to address
other emergent crises. I recommend that you designate for Overseas Contingency
Operations/Global War on Terrorism all amounts (including rescissions) and contn"butions from
foreign governments so designated by the Congress in section 9023 of .division A and section
113(a) of division C of the Act pursuant to section 25l(b)(2)(A) ofBBEDCA, as outlined in the
enc;:losed list of accounts. Upon transmittal of these designations to the Congress, these funds
will be available for obligation and expenditure on October 1, unless otherwise restricted in the
Act. No further congressional action will be required.
The designation of these funds for Overseas Contingency-Operations/Global Wax on
Terrorism allows for adjustments to the discretionary spending limits in fiscal year (FY) 2019, as
specified in section 25l(b)(2)(A) ofBBEDCA. These-adjustments will be reflected when·the
Office of Management and Budget submits its final sequestration report for FY 2019 in
accordance with section 254(f) ofBBEDCA.

I have reviewed this proposed action and am satisfied it is necessary at this time.
Therefore, I recommend that you make the requested funds available by signing the enclosed
letters to the Speaker of the House of Representatives and the President of the Senate.

Enclosures

2

Accounts in the Department of Defense and Labor, Health and Human Services, and
Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019 (the "Act"),
with Funding Designated by the President for Overseas Contingency Operations/Global
War on Terrorism
Division A - Department of Defense Appropriations Act. 2019
Department of Defense
Military Personnel:

•
•
•
•
•
•
•
•
•
•

Military Personnel, Army
Military Personnel, Navy
Military Personnel, Marine Corps
Military Personnel, Air Force
Reserve Personnel, Army
Reserve Personnel, Navy
Reserve Personnel, Marine Corps
Reserve Personnel, Air For?e
National Guard Personnel, Army
National Guard Personnel, Air Force

Operation and Maintenance:
• Operation and Maintenance, Army
• Operation and Maintenance, Navy
• Operation and Maintenance, Marine Corps
• Operation and Maintenance, Air Force
• Operatio~ and Maintenance, Defense-Wide
• Operation and Maintenance, Army Reserve
• Operation and Maintenance, Navy Reserve
• Operation and Maintenance, Marine Corps Reserve
• Operation and Maintenance, Air Force Reserve
• Operation and Maintenance, Army National Guard
• Operation and Maintenance, Air National Guard
• Afghanistan Security Forces Fund (including contributions)
• Counter-ISIS Train and Equip Fund (including contributions)
Procurement:
• Aircraft Procurement, Army
• Missile Procurement, Army
• Procurement of Weapons and Tracked Combat Vehicles, Army
• Procurement of Ammunitio~ Army
• Other Procurement, Army
• Aircraft Procurement, Navy
• Weapons Procurement, Navy
• Procurement of Ammunition', Navy and Marine Corps
1

•
•
•
•
•
•
•

Other Procurement, Navy
Procurement, Marine Corps
Aircraft Procurement, Air Force
Missile Procurement, Air Force
Procurement of Ammunition, Air Force
Other Procurement, Air Force
Procurement, Defense-Wide

Research, Development Test and Evaluation:
• Research, Development, Test and Evaluation, Army
• Research, Development, Test and Evaluation, Navy
• Research, Development, Test and Evaluation, Air Force
• Research, Development, Test and Evaluation, Defense-Wide
Revolving and Management Funds:
• Defense Working Capital Funds
Other Department of Defense Programs:
• Defense Health Program
• Drug Interdiction and Counter-Drug Activities, Defense
• Office of the Inspector General
General Provisions
Appropriation in section 9013 of title IX of division A:
• Ukraine Security Assistance Initiative
Appropriation in section 9018 of title IX of division A:
• Transfer to the operation and maintenance, military personnel, and procurement accounts
to improve intelligence, surveillance, and reconnaissance capabilities of the Department
ofDefense
Rescissions in section 9021 of title IX of division A:
• Procurement of Ammunition, Navy and Marine Corps, 2017/2019
• Operation and Maintenance, Defense-Wide: Coalition Support Fund, 2018/2019
• Operation and Maintenance, Defense-Wide: DSCA Security Cooperation, 2018/2019
• Counter-ISIS Train and Equip Fund, 2018/2019
• Aircraft Procurement, Air Force, 2018/2020
Division C - Continuing Appropriations Act, 2019
Department of Homeland Security
• Coast Guard, Operating Expenses
Department of State
Administration and Foreign Affairs:
2

•
•
•

Diplomatic and Consular Programs
Office of Inspector General
Embassy Security, Construction, and Maintenance

International Organizations:
• Contributions to International Organizations
• Contributions for International Peacekeeping Activities

United States Agency for International Development
Funds Appropriated to the President:
• Operating Expenses
• Office of Inspector General
Bilateral Economic Assistance
Funds Appropriated to the President:
• International Disaster Assistance
• Transition Initiatives
• Complex Crises Fund
• Economic Support Fund
Department of State:
• Migration and Refugee Assistance

International Security Assistance
Department of State:
• International Narcotics Control and Law Enforcement
• Nonproliferation, Anti-Terrorism, Demining and Related Programs
• Peacekeeping Operations
Funds Appropriated to the President:
• Foreign Military Financing Program

General Provisions
Section 7034(0)
• Use of prior-year OCO funds for purposes of loans or loan guarantees

3

THE WHITE HOUSE
WASHINGTON

September 28, 20l8

Dear Mr. President:
In accordance with section 9023 of division A and section l13(b)
of division C of the Department of Defense and Labor, Health and
Human Services , and Education Appropriations Act, 2019 and
Continuing Appropriations Act, 2019 (H.R. 6157; the "Act"),
I hereby designate for Overseas Contingency Operations/Global
War on Terrorism all amounts (including rescissions) and
contributions from foreign governments so designated by the
Congress in the Act pursuant to section 25l(b) (2) (A) of the
Balanced Budget and Emergency Deficit Control Act of 1985, as
outlined in the enclosed list of accounts.
The details of this action are set forth in the enclosed
memorandum from the Director of the Office of Management
and Budget.
Sincerely,

The Honorable Michael R. Pence
President of the Senate
Washington, D.C.
20510

EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON , D.C.

20503

September 27, 2018

THE DIRECTOR

MEMORANDUM FOR THE.PRESIDEN
FROM:

Mick Mulvaney
Director

SUBJECT:

Designation of Funding for Over~eas Contingency Operations/Global War
on Terrorism

Section 9023 of division A of the Department of Defense and Labor, Health and Human
Services, and Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019
(H.R. 6157; the "Act") provides that the availability of amounts appropriated in such division of
the Act that is designated by the Congress for Overseas Contingency Operations/Global War on
Terrorism pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit
Control Act of 1985, ("BBEDCA,') is contingent upon the President subsequently so designating· ·
all such amounts and transmitting such designations to the Congress. In addition, section 113(b)
of division C of the Act provides that the availability of funds appropriated in such division of
the Act that is designated by the Congress for Overseas Contingency Operations/Global War on
Terrorism pursuant to section 251 (b)(2)(A) .o f BBEDCA is contingent upon the President
subsequently so designating all such amounts and transmitting such designations to the
Congress.
The amounts appropriated by the Act for Overseas Contingency Operations/Global War
on Terrorism cover the military and civilian costs necessary to achieve U.S. national security
goals in Afghanistan, the broader Middle East, and other designated conflict zones and to address
other emergent crises. I recommend that you designate for Overseas Contingency
Operations/Global War on Terrorism all amounts (including rescissions) and contributions from
foreign governments so designated by the Congress in section 9023 of.division A and section
113(a) of division C of the Act pursuant to section 251(b)(2)(A) of BBEDCA, as outlined in the
enc;losed list of accounts. Upon transmittal of these designations to the Congress, these funds
will be available for obligation and expenditure on October 1, unless otherwise restricted in the ,
Act. No further congressional action will be required.
The designation of these funds for Overseas Contingency 'Operations/Global War on
Terrorism allows for adjustments to the discretionary spending limits in fiscal year (FY) 2019, as
specified in section 251 (b)(2)(A) of BBEDCA. These adjustments will be reflected when·the
Office of Management and Budget submits its final sequestration report for FY 2019 in
accordance with section 254(f) ofBBEDCA.

.1

I
I

l
l

I
I

I have reviewed this proposed action and am satisfied it is necessary at this time.
Therefore, I recommend that you make the requested fimds available by signing the enclosed
letters to the Speaker of the House of Representatives and the President of the Senate.

Enclosures

2

Accounts in the Department of Defense and Labor, Health and Human Services, and
Education Appropriations Act, 2019 and Continuing Appropriations Act, 2019 (the ".Act"),
with Funding Designated by the President for Overseas Contingency Operations/Global
War on Terrorism
Division A - Department of Defense Appropriations Act, 2019
Department of Defen_.se
Military Personnel:
• :Military Personnel, Anny
• Military Personnel, Navy
• Military Personnel, Marine Corps
• Military Personnel, Air Force
• Reserve Personnel, Army
• Reserve Personnel, Navy
• Reserve Personnel, Marine Corps
• Reserve Personnel, Air Force
• National Guard Personnel, Anny
• National Guard Personnel, Air Force
Operation and Maintenance:
• Operation and Maintenance, Army
• Operation and Maintenance, Navy
• Operation and Maintenance, Marine Corps
• Operation and Maintenance, Air Force
• Operation and Maintenance, Defense-Wide
• Operation and Maintenance, Anny Reserve
• Operation and Maintenance, Navy Reserve
• Operation and Maintenance, Marine Corps Reserve
• Operation and Maintenance, Air Force Reserve
• Operation and Maintenance, Anny National Guard
• Operation and Maintenance, Air National Guard
• Afghanistan Security Forces Fund (including contributions)
• Counter-ISIS Train and Equip Fund (including contributions)
Procurement
• Aircraft Procurement, Army
• Missile Procmement, Army
• Procurement of Weapons and Tracked Combat Vehicles, Anny
• Procurement of Am.munition, Anny
• Other Procurement, Army
• Aircraft Procurement, Navy
• Weapons Procurement, Navy
• Procurement of Ammunitio~ Navy and Marine Corps

1

•
•
•
•
•
•
•

Other Procurement, Navy
Procurement, Marine Corps
Aircraft Procurement, Air Force
Missile Procurement, Air Force
Procurement of Ammunition, Air Force
Other Procurement, Air Force
Procurement, Defense-Wide

Research, Development. Test and Evaluation:
• Research, Development, Test and Evaluation, Army
• Research, Development, Test and Evaluation, Navy
• Research; Development, Test and Evaluation, Air Force
• Research; Development, Test and Evaluation, Defense-Wide
Revolving and Management Funds:
• Defense Working Capital Funds
Other Department of Defense Programs:
• Defense Health Program
• Drug Interdiction and Counter-Drug Activities, Defense
• Office of the Inspector General

General Provisions
Appropriation in section 9013 of title IX of division A:
• Ukraine Security Assistance Initiative
Appropriation in section 9018 of title IX of division A:
• Transfer to the operation and maintenance, military personnel, and procurement accounts
to improve intelligence, surveillance, and reconnaissance capabilities of the Department
of Defense
Rescissions in section 9021 of title IX of division A:
• Procurement of Ammunition, Navy and Marine Corps, 2017/2019
• Operation and Maintenance, Defense-Wide: Coalition Support Fund, 2018/2019
• Operationand Maintenance, Defense-Wide: DSCA Security Cooperation, 2018/2019
• Counter-ISIS Train and Equip Fund, 2018/2019
• Aircraft Procurement, Air Force, 2018/2020

Division C - Continuing Appropriations Act, 2019
Department of Homeland Security
• Coast Guard, Operating Expenses
Department of State
Administration and Foreign Affairs:
2

•
•
•

Diplomatic and Consular Programs
Office of Inspector General
Embassy Security, Construction, and Maintenance

International Organizations:
• Contributions to International Organizations
• Contributions for International Peacekeeping Activities
United States Agency for International Development
Funds Appropriated to the President:
• Operating Expenses
• Office of Inspector General
Bilateral Economic Assistance
Funds Appropriated to the President:
• International Disaster Assistance
• Transition Initiatives
• Complex Crises Fund
• Economic Support Fund
Department of State:
• Migration and Refugee Assistance
International Security Assistance
Department of State:
• International Narcotics Control and Law Enforcement
• Nonproliferation, Anti-Terrorism, Demining and Related Programs
• Peacekeeping Operations
Funds Appropriated to the President:
• Foreign Military Financing Program
General Provisions
Section 7034(0)
• Use of prior-year OCO funds for purposes ofloans or loan guarantees

3