Deluge of money for state permitting program delights water advocates

Mar. 16—The $7.6 million the Legislature approved to aid the state in safeguarding New Mexico's waterways after a U.S. Supreme Court decision removed most from federal protection far exceeded supporters' expectations.

Water advocates see it as a gigantic windfall that, they hope, will set New Mexico on a path toward protecting its own waters instead of relying on the ever-changing regulations of the federal government.

State regulators asked for $600,000 to take some preliminary steps needed to establish a permitting program to regulate polluted discharges into rivers, streams and lakes — a program they say is vital as climate change depletes New Mexico's waters with more frequent and prolonged droughts.

A separate bill requested $840,000 to boost water monitoring and enforcement of existing state protections, mainly tied to groundwater regulation.

Lawmakers instead came through with more than five times the amount of the two requests combined, and Gov. Michelle Lujan Grisham signed off on it.

"We are really grateful, and many people are really grateful for this funding, finally, and for our leadership and lawmakers to step forward," said Joan Brown, executive director of New Mexico and El Paso Interfaith Power and Light. "It just feels like it may be — maybe — a turning point that we're really understanding who we are in this arid region."

The money will boost the Environment Department's efforts, spokesman Matt Maez wrote in an email, but more funding will be needed down the road.

"While this funding will assist with the creation of the surface water permitting program, it is not enough to fully create or sustain the program," Maez wrote.

The agency will develop a database to make the permitting more streamlined and efficient and an improved mapping system to identify waters that require protection, he wrote. It will start crafting the necessary regulations for the program in the spring, will seek public input in the fall and petition the state Water Quality Control Commission in spring 2025, he added.

The agency is shooting for an initial rollout of the program in 2027, Maez wrote.

Conservationists have said New Mexico's waterways are among the most vulnerable in the country, partly because New Mexico is one of three states that has no authority to regulate polluted discharges from industry under the federal Clean Water Act.

Instead, it must rely on the U.S. Environmental Protection Agency for regulation and permitting of discharges, including which waters qualify for protection.

The funds approved this year will enable the state to begin developing a program to regulate waters it has deemed worthy of protecting and will give it the wherewithal to enforce the state Water Quality Act as an interim measure for stemming pollution, said Rachel Conn, deputy director of the Taos-based water protection group Amigos Bravos.

"It covers a wide range of activities to protect our state's waters," Conn said. "We were thrilled with the amount [of money]. It showed many of our state leaders coming together to prioritize this as important."

The funding puts the state Environment Department in a strong position to work with industries, clean water advocates and other interested parties to craft a regulatory program that will benefit the state's waters, communities and economy, Conn said. She said it's paramount for the state to gain full autonomy so it's no longer at the mercy of see-sawing federal water protections that keep New Mexico in "a whiplash."

Much of the flux is based on federal regulators and courts continually redefining what constitutes a U.S. water that's eligible for protection.

The original definition of a U.S. water was one that was navigable or able to bear vessels large enough to haul goods. The definition broadened over time to include waters linked to rivers and lakes that could accommodate even small watercraft.

Last year, the nation's highest court agreed to do away with the "significant nexus" test from an earlier high court decision that stated a wetland was protected if it connects to a U.S. water indirectly or even ecologically. Supreme Court justices ruled 5-4 to impose the stricter standard that a wetland must have a clear, direct and "relatively permanent" link to a U.S. water.

That language cut federal protections from nearly all of New Mexico's waters because they are questionable when it comes to being relatively permanent. They are either ephemeral — meaning storm-generated — or intermittent, flowing seasonally.

With the funding approved this year, state regulators can work to establish the necessary infrastructure and hire staff to enforce the state water quality law, Conn said. Although this law covers groundwater permits, it contains some language that can be applied to protecting surface water, such as not allowing toxic waste to pollute water resources, she said.

State regulators have said it would cost $7 million to $9 million a year to run a program that regulates all types of polluted discharges into state and federal waters. About 50 people would be needed to run the program, which could be paid for with a combination of permit fees and recurring state funds, Maez wrote.

The first step is to manage discharges going into New Mexico waters not under federal jurisdiction, which includes most of the waters found within the state's borders.

Next would come pursuing primacy, or the authority to issue polluted discharge permits for U.S. waters.

The Environment Department will ask lawmakers in the 2025 legislative session to give the state the authority to oversee federal pollution discharge permits, a required step in the process, Maez wrote.

Paula Garcia, executive director of the New Mexico Acequia Association, said it's encouraging that lawmakers recognized how essential it is for the state to protect its own waters, because federal safeguards being rolled back put acequias at risk.

This is especially true with extractive industries, such as mining and fossil fuel, potentially contaminating the ephemeral and seasonal waterways no longer federally protected, Garcia said.

"That's where most of our acequias are located, are on the smaller streams," Garcia said. "This is very important to us. We want to make sure that our water quality is protected from potential pollution from industries."