June 14, 2023

Surface water permitting may help fill gaps left after SCOTUS ruling

Laura Paskus

Waterways like Almagre Arroyo (pictured here last summer after a rainstorm) in northern New Mexico would not be protected from pollution under the Trump administration's new rule

The New Mexico Environment Department is looking at creating a surface water permitting program in light of the Sackett vs. U.S. Environmental Protection Agency U.S. Supreme Court ruling that stripped protections from many wetlands. 

John Rhoderick, the NMED Water Protection Division’s director, spoke to the interim legislative Water and Natural Resources Committee on Tuesday about the idea.

While the surface water permitting program is something that could help restore protection to waters in New Mexico, the Sackett ruling did not predicate the discussions. Roderick said that at this time the state agency does not see a need to alter the timeline for rulemaking.

He said the rulemaking should go to the Water Quality Control Commission in 2025 and will take at least six years to fully implement, including setting the program up and hiring staff.

Roderick said NMED is evaluating internally and with other states what the impacts of the Sackett ruling may be on waters in New Mexico.

He said NMED does not see any immediate impacts and is waiting to see how “this rolls out,” but is looking at the rulemaking for surface water permitting and could consider incremental rulemaking if needed to provide protections for waters that may be impacted by the Sackett decision.

The Sackett case stems from a couple in Idaho who wanted to develop a parcel of real estate that they owned. The property included a wetland and, while preparing it for a home, the couple began to fill in the wetland. The EPA stepped in and said they needed to require a permit to do so.

The Supreme Court determined that wetlands needed to have a physical, continuous connection to a protected body of water to receive protections under the Clean Water Act’s waters of the United States regulations.

“They did not base that on science,” Rhoderick said. “They did not base that on anything other than just making a determination that because there was a roadway between the adjacent protected waters and this wetland that the wetland was separated and…it could not be protected.”

Rhoderick said that even when a physical surface connection is not visible, waterways can be connected through groundwater.

He said NMED does not know that there are lots of wetlands in the state that could be impacted by the Sackett ruling, but that doesn’t mean the Supreme Court decision won’t impact New Mexico waters.

He said setting up a surface water permitting system in New Mexico will make it so the state’s waters are not impacted by decisions like the Sackett ruling. 

Currently, there are about 3,955 permittees that are covered by discharge permits including cities, military bases, animal feeding operations and construction sites.

Rhoderick said the primary impact of the Sackett ruling will likely be in dredge and fill permits where people are looking to fill in wetlands or arroyos.

“It’s difficult for us because the vast majority of the watercourses that we have are ephemeral. They are not continuous running. Yet if they’re not protected, they have the potential to have significant impact. That’s why we’re looking at a surface water permitting system,” he said.

Last year, the Legislature provided funding for that initiative.