Jan. 11—The New Mexico Environment Department is hoping to take over permitting of water discharges from the federal government, following a 2023 U.S. Supreme Court decision that could exempt some waterways in New Mexico from federal protections.
The department is backing two pieces of legislation, one of which would pave the way for a new state permitting program for discharges to protect rivers and streams that might be left behind.
Currently, entities wanting to release waste into what’s known as a “water of the United States” need a permit under the Clean Water Act. The permits regulate how much of a pollutant can be discharged and mandates monitoring and reporting to ensure water quality and human health are protected.
Sewage treatment plants, mining facilities and oil and gas operators discharging into surface waters need National Permit Discharge Elimination System permits. The city of Santa Fe has a permit for its Paseo Real wastewater treatment plant; the federal Environmental Protection Agency recently ruled that Los Alamos County and Los Alamos National Laboratory needed permits for stormwater discharges.
But what exactly qualifies as a “water of the United States?”
At the time the Clean Water Act was adopted, said Environment Department Surface Water Quality Bureau Chief Shelly Lemon, it was intended to apply broadly to most waters in the country.
Since then, that intent has been narrowed.
Federal courts narrow protected waters
Sackett v. EPA, which led to the 2023 ruling reducing the number of waterways that qualify for federal protection, wasn’t the first case to whittle down the waters protected by the Clean Water Act, Lemon said. The United States v. Riverside Bayview Homes decision from 1985, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers in 2001 and Rapanos v. United States from 2006 all took a whack at defining “waters of the United States” — which isn’t defined in the Clean Water Act.
That’s left wiggle room in how federal agencies interpret the definition.
The 2006 decision included waterways that had a “significant nexus” to a navigable water. That could include a surface connection, but also groundwater and other links that could spread contamination. The Sackett decision struck that provision, holding that the protections only apply to wetlands and permanent bodies of water with a continuous connection to waterways connected to interstate commerce.
Only 3% of New Mexico’s waters are considered “perennial” — that is, they flow year-round, Lemon said. The majority dry out for some parts of the year, which could put them in regulatory limbo.
But it’s still not clear exactly what the impact of Sackett is, especially at the end of one presidential administration and the beginning of another. There were around 100 discharge permits around the state when Sackett was decided. But there hasn’t been a rush to cancel those permits, Lemon said — in fact, none of the permit holders have asked to terminate their permits.
“I think that was mainly because they don’t want to terminate a permit without knowing how the agency is going to interpret the new rule,” Lemon said. ” If they terminate their permit and they’re discharging they could be enforced upon if it’s decided later that yes, they they needed a permit and they terminated it. So I think regulated entities are also kind of waiting to see.”
State legislation expected
Two bills are being proposed in this year’s legislative session. One would give the state the authority to handle the federal discharge permit program, with the oversight of the EPA. New Mexico is one of just three states that does not administrate the federal program.
The other would allow the department to create its own permitting program. Senate Majority Leader Peter Wirth, D-Santa Fe, is expected to be a sponsor.
But passing legislature is just the first step. Setting regulations and determining how to fund the program will require rulemaking, a process Lemon anticipates would take until 2027 or 2028. The program is expected to require an additional 40 to 50 staff members and $8 million to $9 million each year for full implementation.
Lemon said she thinks there’s support for the legislation, but some stakeholders are more cautious.
“I think people are nervous about that, because we’re at the first step, which is more broad and general,” Lemon said. “People are worried about the details. I think, generally speaking, people are supportive and understand that we need to protect water quality.”
One such detail is permit fees, which would be set via rulemaking. Currently, federal discharge permits are free, said Lemon.
“It’ll be a big change,” she said.