April 8, 2015

Deal reached for new dairy rule

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A dispute between the Susana Martinez administration and environmental groups looks to be nearing a conclusion after more than four years of dispute.

Environmental groups, citizens and dairies came to an agreement on Monday on rules governing protection of water. The agreement came just hours into hearings that were scheduled to last through the end of the week.

The agreement is between the Citizens Dairy Coalition, which includes environmental groups and citizens who live near dairies, the Dairy Industry Group for a Clean Environment, which represents the dairy industry, the Attorney General and the state Environment Department.

The Water Quality Control Commission will consider the agreement at its May meeting. At that meeting, the groups will be able to provide input to what will become the new administrative rule for dairies in relation to water.

One concession by the Citizens Dairy Coalition was that dairies would be allowed to use clay liners. These are less expensive and the environmental groups say less effective than the synthetic versions.

“This agreement, while offering more flexibility to both the industry and the Environment Department in permitting requirements, retains a system for monitor wells to provide early detection of groundwater pollution. Dairies will still be held responsible for cleaning up pollution they cause,” Dan Lorimier of the Sierra Club Rio Grande Chapter said in a statement.

“To have collective buy-in from the Dairy Industry Group for a Clean Environment (DIGCE) and the Coalition on the stipulated proposal is a huge win for the public and all interested parties,” Environment Department General Counsel Jeff Kendall said in a statement. “If the Commission adopts the stipulated proposal we can return our focus and resources to regulating dairies and protecting the environment, under a regulatory framework that is manageable for NMED and transparent for permitted facilities.”

New Mexico Environment Department Secretary Ryan Flynn said the location of the hearing was important.

“We were pleased that the WQCC was able to conduct the hearing in the heart of New Mexico’s dairy region, here in Roswell, where the citizens and economy are most affected by these changes,” Flynn said. “As the Environment Department has argued all along, hearings on important rulemakings need to be held in locations where those most affected will be able to participate in the process regardless of the subject matter. In this case, that location is clearly southeast New Mexico.”

“By enabling site specific discretion for the regulator, each dairy may attain groundwater compliance within the proposed rule, rather than seeking a variance to an overly prescriptive rule,” NMED Director of Environmental Protection Programs Trais Kliphuis said in a statement. “In addition, the contingency portion of the rule is improved to trigger evaluation of rising contamination trends before ground water quality is threatened by levels that exceed our protective standards.”

Environmental groups had sought to have the hearing in Santa Fe.

The controversy over the dairy rule came as soon as Martinez entered office. She attempted to block the dairy rule, which passed in late 2010, from being published. The executive order to stop the publication of the rule to the state register, which would put it in effect, came just minutes after she became governor.

The state Supreme Court ruled that this was illegal and ordered the rule, and two others Martinez sought to stop from going into effect, published. Another dairy rule was passed in 2011 and went into effect but a push by the dairy industry for yet another new rule started immediately.

Environmental groups said that the Environment Department stopped enforcing the 2011 rule in anticipation of the new rule.

The Environment Department told New Mexico Political Report that there as nothing about anticipation of a new rule in any lack of enforcement of the 2011 rule.

A spokeswoman for the department:

Lack of enforcement has not been about “anticipation,” rather it’s been about organizational and staffing issues of the Ground Water Protection Bureau, under the Bureau Chief in 2010 who left a pile of hundreds of “orphan permits,” which we’ve been addressing ever since. The Bureau has also been underfunded, with vacant permitting positions, as the permitting fee structure does not map to the actual costs of permit management, so we depend also on General Fund monies. We worked to secure increased General Fund appropriations this year, and expect to be able to fund two of the six vacant positions. It’s also been about the former, overly prescriptive, nature of the Dairy Rule which created an enormous demand for variances, and the efficiency drag in the Bureau created by the additional variance handling. We estimate of the 19 Dairy Rule variances currently outstanding, that most of them will be moot under the proposed stipulation. So NMED has been working the problem from all sides: funding; staffing; handling of backlogged, orphaned permits; and adjusting an overly prescriptive rule to streamline enforcement capabilities. To be clear, we have not “stopped enforcing” the Dairy Rule; quite the contrary.

Update: Added response from NMED to lack of enforcement on the rule.

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