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What’s a river? Supreme Court WOTUS ruling will be costly for New Mexico, experts warn


What’s a river? Supreme Court WOTUS ruling will be costly for New Mexico, experts warn

Jul 12, 2023 | 6:30 am ET
By Danielle Prokop
What’s a river? Supreme Court WOTUS ruling will be costly for New Mexico, experts warn
Mayordomo Danny Roybal looks over into the water flowing from a Mimbres River diversion on Feb. 21, 2023. Most of New Mexico's waters face losing protections from federal pollution permitting programs, according to state experts.(Photo by Megan Gleason / Source NM)

State environment officials said most of New Mexico’s rivers, streams and arroyos will need additional protections by the state from pollution after the United States Supreme Court reshaped water law overnight with a ruling in June.

Potential fixes could cost the state millions of dollars and take more than a year to put in place, New Mexico environment department officials said Tuesday at a meeting of its Water Quality Control Commission.

Allowing pollution would take a higher toll in the long-run and could harm the state’s direction on environmental priorities, said Shelly Lemon, the program manager for the environment agency’s surface water quality bureau.

“Without a state surface water quality permitting program, it’s going to be very difficult for New Mexico to protect its waters from contamination and degradation,” Lemon said. “We’re gonna be at the mercy of the federal definition of what is and is not protected – not what the state of New Mexico wants to protect.”

A refresher on the case

In a case called Sackett vs. EPA, the U.S. Supreme Court ruled that the federal government overreached in a dispute with Idaho couple Chantell and Michael Sackett over infilling a wetland area to build a house. The court agreed 9-0 to send the case back to the lower courts. But the court had a 5-4 split, with the majority limiting the definition of what wetlands could be protected.

Justice Samuel Alito wrote for the majority opinion that the wetlands must be “indistinguishably” part of waters already protected by the Clean Waters Act. Those have been defined by other cases to include “relatively permanent, standing or continuously flowing bodies” – think streams, oceans, rivers and lakes.

This removes protection from an estimated half of the nation’s wetlands – tens of millions of acres.

Fights over what defines “waters of the United States” have boiled over in recent years, with three overhauls of federal agency rules in the past three presidential administrations.

“Waters of the United States,” is a legal designation defining which waters are protected by the 1972 Clean Water Act. That law made discharging pollutants – such as livestock waste, or construction and industrial runoff – into “waters of the United States” illegal without a permit.

But the “relatively permanent standard” is a problem for New Mexico.

Only 7% of the state’s waters flow throughout the year. This means that 93% of New Mexico’s waters could be “subject to unregulated pollution threats,” Lemon said.

About 40% of New Mexico’s population depends on surface water for drinking.

And even those waters that flow year-round are interrupted in parts of the stream bed due to climate and weather conditions.

“Those interrupted streams, because they do not have a continuous surface connection, may not be subject to Clean Water Act protections under this new ruling,” Lemon said.

Even the state’s largest river, the Rio Grande, breaks in the San Acacia Reach south of Albuquerque, drying up miles of riverbed in the hot summer months.

NM environmental agency bracing for water law changes

New Mexico is one of three states that does not have a state agency that permits how much pollution is in its surface water – that’s left up to the U.S. Environmental protection agency permitting program.

In order to have a state program overseeing a permitting program, the New Mexico Environment Department would have to hire between 40 and 45 more people, Lemon said.

“That would probably run in the $6 million to $7 million dollar range,” she said.

The state is in the beginning stages of developing the permitting program, with communication and outreach to state agencies and tribes funded through 2023.

New Mexico environment officials have to decide between the options for what the permitting program would entail, Lemon said. Those include the state operating its own state water quality permitting program, or consider taking over the federal operations in the state.

One problem with taking over the federal operations in the state – a legal term called primacy – means that some of the state’s waters would still be unprotected, because of the limits to waters of the United States, Lemon said.

The EPA has promised a new rule defining “waters of the United States,” in September.

The EPA issued 3,950 active permits to discharge pollutants into surface waters, according to the New Mexico Environment Department.

That includes 121 individual permits – such as Los Alamos National Laboratory – 23 feedlot permits, and about 200 industrial, water treatment facilities or other permits.

The majority, about 3,600 of the permits, are for stormwater discharge – when runoff from rain storms picks up pollutants from a site and carries them into nearby surface water.

At the end of June, the state environment department sent out notices to federal permit-holders that some state laws may still apply, even if the federal permit no longer does, according to an NMED news release.

In that announcement state officials said that without a federal permit, industrial or municipal wastewater treatment sites may need to meet federal and state hazardous waste requirements, or seek additional groundwater permitting.