New Mexico facing a long fight after a Texas utility spews sewage into the Rio Grande

It will likely be a while before New Mexico officials know whether an El Paso utility will have to pay up for dumping sewage into the Rio Grande. Procedural rules and a fight over jurisdiction are drawing out the process.

The New Mexico Water Quality Commission met on Tuesday to discuss future hearings regarding the $1.2 million fine and other penalties, including cleanup demands, that N.M. issued to the El Paso Water Utilities Public Service Board. 

Starting about a year ago and lasting for months, El Paso Water diverted untreated sewage to the Rio Grande in Texas because broken pipelines could’ve spewed the sewage directly into communities. Between 6 and 10 million gallons of wastewater were dumped into the river every day from August 2021 to January 2022, according to the N.M. Environment Department, and the waste drifted into the city of Sunland Park in New Mexico.

A couple of months ago, NMED issued a fine to El Paso Water, called for additional remediation and also sought assurances that it won’t happen again. In addition, the state requested a copy of the utility’s cleanup plan after El Paso Water finished cleaning the Rio Grande in May 2022 with the stipulation that N.M. can request further action still.

“El Paso Water’s flagrant disregard for the health and welfare of New Mexicans in Sunland is astonishing,” N.M. Environment Secretary James Kenney said in the June news release announcing the fine.

Officials said the utility hadn’t notified New Mexico of the discharge, which is illegal. El Paso Water’s CEO disputed the allegation, El Paso Matters reported.

But the utility is challenging New Mexico’s authority to issue penalties or require more cleanup since the discharge originated in Texas. Utility representatives said in a filing with the Water Quality Commission Board that the Texas state government or the federal government have jurisdiction over this matter.

Because of that hang-up — and other procedural rules — the attorneys don’t expect a resolution any time soon. There isn’t yet much of a timeline, either.

Usually, a hearing must be held within 90 days after a request is made to the Water Quality Control Commission, but the commission waived that requirement after both parties requested more time. Chair Stephanie Stringer must also choose a hearing officer to oversee the process.

Two separate hearing requests — one for groundwater and one for surface water — could be condensed into one, both legal camps agree.

Commissioner Bruce Thomson said he was confused about why the matter was before the Water Quality Control Commission since it seems like a legal issue for the courts to decide, but the lawyer representing New Mexico said administrative processes must unfold before the state engages in any kind of lawsuit.

“In the first instance, we start with an administrative enforcement action,” attorney Andrew Knight said. “And depending on the outcome of that, we may or may not see the need to proceed to court action.”

But El Paso Water’s lawyer Thomas Hnasko said it’s likely that there will be simultaneous court action on the consequences of the pollution.

“We had no choice but to answer a request to hearing, so we tend to go through this process and respect this process as well,” Hnasko said. “But we do think there will be some relative issues in both the court proceeding and in this proceeding.”