Albuquerque residents coping with the COVID-19 pandemic have flocked to the Rio Grande this spring and summer in droves, said John Fleck, director of the Water Resources Program at the University of New Mexico. “What we’re seeing in Albuquerque is stunning. People are in the river in ways that we’ve never seen before,” Fleck told NM Political Report. “People are out wading in the river, splashing around, playing, setting up family picnics on the emerging sand banks.”
That fun may soon come to an abrupt end. For the first time in decades, Albuquerque is facing a dry Rio Grande.
A recent incident involving the alleged dumping of produced water on state lands has highlighted the difficulties state regulators face in holding oil producers accountable to illegal dumping.
“If we don’t have proof of it happening, it’s very hard to move forward with a violation,” Adrienne Sandoval, director of the state Energy, Minerals and Natural Resources Department’s Oil Conservation Division, told NM Political Report.
A rancher alerted the OCD in early March of an incident in which the rancher believed produced water was being dumped on state trust lands and a road in Lea County.
“Luckily it was caught by someone locally,” Sandoval said, adding that the individual “took recordings of it while it was occurring.”
A month later, the OCD issued administrative civil penalties to two companies involved in the incident: the oil producer Advanced Energy Partners Hat Mesa, LLC and a New Mexico-based trucking company named Windmill Trucking. AEP Hat Mesa has a contract with Windmill Trucking for hauling fresh water and produced water to and from oil rigs.
“The trucking company is required to have authorization from us and permits in order to haul this water. It is the operator’s responsibility to ensure the people they are contracting with have the appropriate credentials. That’s why they’re both receiving violations,” Sandoval said.
The OCD fined AEP $7,600 and fined Windmill Trucking $8,700 — the first fines OCD has issued since it regained its ability to collect fines earlier this year.
RELATED: Oil Conservation Division can enforce oil regulations for first time in a decade
“Those are just initial numbers,” Sandoval said. “After we issue the initial notice of violation, they have the option of either having a settlement conference or going to a hearing.
After 25 years, $16 million dollars, and missing a key deadline, the Gila River Diversion proposal is now effectively dead. The Interstate Stream Commission voted 7-2 Thursday against supplying funding needed to complete an environmental impact statement required for the project. Critics of the project, including Gov. Michelle Lujan Grisham, U.S. Senators Tom Udall and Martin Heinrich and conservation and environmental groups, cheered the vote.
“This proposal is actually the fourth proposal to dam the Gila. We hope this is the fourth and last proposal,” Allyson Siwik, executive director of the Gila Conservation Coalition, told NM Political Report.
Siwik boiled down her opposition to the proposal bluntly: “It’s expensive [and] the water is unaffordable.”
The proposal would have seen 14,000 acre-feet of water diverted each year from the Gila River for landowners to use in New Mexico. The state is entitled to that amount of water each year from the river as part of the 2004 Arizona Water Settlements Act.
As state legislators convene in Santa Fe for a special session to tackle the budget, environmental groups are asking lawmakers to limit cuts to the state’s environmental regulatory agency budgets to 3 percent.
A group of 28 organizations, ranging from conservation and wildlife advocates to renewable energy proponents, sent a letter to members of the state Senate Finance Committee and the state House Financial Affairs Committee last week.
The New Mexico Environment Department (NMED) and the Energy, Minerals and Natural Resources Department (EMNRD) — the state’s two main environmental regulatory departments — each saw their respective budgets erode during the Susana Martinez administration.
NMED’s general fund was cut by 32 percent between fiscal years (FY) 2012 and 2019, which was the last fiscal year budget passed by the legislature in 2018 before Martinez left office, according to a report released by the New Mexico Wilderness Alliance. EMNRD saw its budget drop roughly 24 percent under the Martinez administration between fiscal years 2012 and 2019.
In Gov. Michelle Lujan Grisham’s first budget proposal for FY2020, NMED’s general fund increased 6 percent compared to FY2019, while EMNRD saw a 9 percent increase in fiscal year 2020 over 2019. The departments saw similar increases in the FY2021 budget, which goes into effect on July 1 and will be amended during the special session due to the COVID-19 caused economic slowdown and dropping oil and gas prices.
“The 2021 budget saw about a 7 percent increase for those agencies from 2020,” said Ben Shelton, policy and political director at Conservation New Mexico, and who coordinated the letter. “What we’re trying to do is hold that reduction in increase as low as possible.”
While the recent budget increases are steps in the right direction, the departments’ budgets are still much lower than they were at the end of Gov. Bill Richardson’s administration in 2011.
“These guys got cuts in the Martinez administration where they got cut below what they needed to do the minimum of their jobs — particularly EMNRD,” Shelton said.
Both departments are suffering from high vacancy rates as a result. NMED has a 19 percent vacancy rate, with only seven inspectors in charge of monitoring 7,700 air emitting sources, two inspectors in charge of monitoring 700 groundwater sources, and seven inspectors for monitoring nearly 3,000 hazardous waste sources.
EMNRD’s Oil Conservation District (OCD), which regulates oil and gas activities in the state, had its budget decline 26 percent under the Martinez administration. The OCD is responsible for oil and gas regulatory activities ranging from permitting new wells, inspecting abandoned wells, ensuring compliance with permits, and enforcing the state’s oil and gas rules.
The Land and Water Conservation Fund (LWCF) is poised to receive permanent funding after the U.S. Senate passed legislation Wednesday. The fund, created by Congress in 1965 to support public land management using offshore oil and gas royalties, will receive $900 million annually under the bill, marking just the second time since its creation that the program will be fully funded.
The Great American Outdoors Act, which environmental groups are calling “a historic public lands conservation package,” passed the Senate Wednesday with what some have dubbed “rare” bipartisan support on a 73-25 vote. The bill was introduced earlier this year by Republican Senators Cory Gardner of Colorado and Steve Daines of Montana. New Mexico Senators Tom Udall and Martin Heinrich both supported the bill and pushed initiatives to fully support the LWCF, which will pour millions into public lands across the state.
“My father, Stewart Udall, helped enact this wildly successful program as Secretary of the Interior under Presidents Kennedy and Johnson, and I’m glad the full promise of LWCF is finally being realized,” Udall said in a statement. He called the fund “one of the most successful conservation tools we have to protect and expand our public lands” and said it is “a historic game-changer for New Mexico and the nation.”
The fund “has helped preserve many treasured places in New Mexico — including the Valles Caldera, Ute Mountain, and Valle de Oro National Wildlife Refuge,” Heinrich said in a separate statement.
Peering at a map of red dots, Michael Robinson became worried when he couldn’t locate AF1251, the last adult Mexican gray wolf of the Prieto pack, who was also a mother with a yearling.
Robinson, senior conservation advocate at the Center for Biological Diversity, was keeping an eye on the remaining two members of the Prieto pack after the alpha male of the pack and a pup had been killed by the federal Wildlife Services agents earlier this year. Wildlife Services is a secretive federal agency that offers predator removal services for ranchers.
The two wolf killings followed the removal of a total of seven pack members over the last two years. “I’d been very interested in what would happen to the Prieto pack after [that],” Robinson said.
The mapping tool, provided by the U.S. Fish and Wildlife Service, tracks endangered Mexican gray wolves using radio collar data. The map is usually updated every two weeks, but amid the pandemic, the map hadn’t been updated in over a month. When it was finally updated this week, Robinson said he checked the numbers of each red dot on the map, hoping to locate the female.
New Mexico joined Tuesday a coalition of 16 states, the City of New York and the District of Columbia that are asking a federal court to stop the U.S. Environmental Protection Agency’s new clean water rule from going into effect while it awaits a decision in an earlier lawsuit against the rule.
Attorney General Hector Balderas joined the coalition in filing a lawsuit May 1 against the Trump Administration in the federal Northern California District Court over the EPA’s recently finalized changes to the “Waters of the U.S.” definitions in the Clean Water Act regulations.
The definition greatly narrows the types of waterways, streams and wetlands that are afforded federal protection under the act. The New Mexico Environment Department estimates the new rule would remove protections for 89 percent of the state’s streams and half of its wetlands. RELATED: Ranchers, conservation groups unhappy with the new clean water rule, but for different reasons
The rule is slated to take effect in June, spurring the multistate coalition to ask for a preliminary injunction that asks that the rule be enjoined until the court makes a decision on the coalition’s lawsuit “in order to prevent widespread harm to national water quality and to avoid disruption to state and local water pollution control programs,” according to a statement issued by the AG’s office.
In a separate statement, New Mexico Environment Department Secretary James Kenney said NMED will do “whatever it takes to prevail in protecting our most precious resource.”
“We will not allow a rule to take effect this summer that will devastate New Mexico’s scarce and limited water resources,” Kenney said. NMED submitted comments on the rule in April, arguing that the new rule is “not based on hydrologic science” and “does not account for the impacts of climate change on the hydrologic cycle,” and said the new rule is not protective of public health or the environment.
U.S. Senators Tom Udall and Martin Heinrich introduced legislation Tuesday that would designate portions of the Gila River as Wild and Scenic, after a “years-long” effort to protect what’s known as one of the country’s last wild rivers.
The M.H. Dutch Salmon Greater Gila Wild and Scenic River Act would designate 446 miles of the Gila River and other waters in the Gila and San Francisco water basin as either wild or scenic, protecting those portions of river from future development.
RELATED: A win for the state’s last wild river
Udall said they drafted the legislation with input from community members, private landowners, outdoor recreation enthusiasts, local fishers, farmers and ranchers. Udall said he and Heinrich also worked with landowners and state agencies to identify where the designation boundaries should be. “We opened up that draft for additional feedback, to make sure New Mexicans have a seat at the table in helping determine the future of the Gila,” Udall said. “We have now introduced a strong piece of legislation that will protect the Gila, while ensuring that existing uses and planned projects, including grazing, recreation, restoration, and access can continue.”
Heinrich said the legislation is timely in a period of economic uncertainty caused by the global COVID-19 pandemic.
“The outdoor recreation industry was fueling some of our fastest job growth, particularly in our rural communities, just before the pandemic hit,” Heinrich said. “Roosevelt said conservation means development as much as it means protection, and he’s absolutely right.
A stream access dispute that has been brewing for years between public access advocates and landowners could be resolved once and for all, now that litigation has brought the matter to the New Mexico Supreme Court. In March, three conservation and public access organizations, the New Mexico Wildlife Federation, Backcountry Hunters and Anglers (BHA), and Adobe Whitewater Club, filed a lawsuit against the governor and the state Game Commission. While it’s hard to boil the issue down into a few lines, balancing the rights of landowners with those of the public is an integral component of the lawsuit, which asks the Supreme Court to strike down a 2017 state Department of Game and Fish rule that enabled landowners to restrict access to streambeds and banks that line waterways located on private property.
That rule was the result of a 2015 bill that became law, codifying thirty years of Game and Fish regulations that considered members of the public from walking onto private property from public waterways as trespassing.
RELATED: Heinrich defends stream access as issue heads to NM Supreme Court
The state Supreme Court took up the case at the end of March, and by mid-April, a contingent of landowners and other groups, including the New Mexico Council of Outfitters and Guides (NMCOG), requested to intervene in the case in support of the 2017 Game and Fish rule, arguing that they would be negatively impacted by a potential Supreme Court ruling striking it down.
Groups on both sides of the dispute all have different ideas about what’s at issue, and what’s at stake, but all parties are quick to point out the dispute is incredibly complicated. And while there’s no shortage of opinions on the topic, stakeholders on both sides of the fence seem to agree on one thing: it was a 2014 opinion issued by then-Attorney General Gary King that started the whole thing.
Private property and public waters
The New Mexico constitution states that “unappropriated water of every natural stream, perennial or torrential,” within the state of New Mexico, is “declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.”
Everyone agrees that the waters of New Mexico are public, Kerrie Romero, executive director of NMCOG, told NM Political Report. What’s in dispute is how the public can access those waters.
A conservation program that industry groups and landowners hoped would keep the lesser prairie chicken off the federal Endangered Species Act list has fallen short of its conservation mission and wasted millions in the process, according to an independent audit of the program.
The lesser prairie chicken has been under consideration for Endangered Species Act protections for more than 20 years and was listed as a threatened species, a step down from endangered species designation, from 2014 to 2016.
A group of five states that share the lesser prairie chicken range — New Mexico, Texas, Colorado, Kansas and Oklahoma — developed in 2013 a voluntary conservation program with land owners, ranchers and oil and gas companies through the Western Association of Fish and Wildlife Agencies (WAFWA), a consortium of state fish and game agencies across the West. WAFWA has managed the program for landowners and oil and gas developers to buy into in order to assure protections for remaining lesser prairie chicken habitat.
The U.S. Bureau of Land Management (BLM) decided to move forward with a public engagement process for plans to expand drilling in the Greater Chaco region, even as the communities in northwestern New Mexico, who are currently struggling with a surge in COVID-19 cases, have repeatedly requested an extension to the process.
The U.S. Bureau of Indian Affairs (BIA) and the BLM released a draft amendment to the Farmington field office resource management plan (RMP) and environmental impact statement in late February, kicking off a public comment period that ends on May 28. The 400-plus page draft amendment outlines a preferred alternative that would increase oil and gas activity in the Greater Chaco region.
As the COVID-19 outbreak has spread across the state, local community groups in the Greater Chaco region requested the BLM extend the public comment period during the public health emergency. That call was echoed by the state government, the congressional delegation, and tribal leaders. All told, three separate letters were sent to the Department of Interior requesting the comment be extended. As of Friday, none have received a response, according to officials.
RELATED: Guv orders Gallup lockdown to slow COVID-19 spread
Meanwhile, populations in the northwest corner of the state, including communities on the Navajo Nation and other tribal lands, have been pummeled by COVID-19.