2020 Legislative Session

Groups call on legislators to cap environmental budget cuts at 3 percent

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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.

Environmental Project

Land and Water Conservation Fund one step closer to securing full funding after Senate passage

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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.

Environmental Project

No relief in sight for drought gripping northern New Mexico

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“I wish I had better news,” said Dave DuBois, New Mexico’s State Climatologist and director of the NM Climate Center at the New Mexico State University, during a weather outlook webinar hosted by the National Integrated Drought Information System (NIDIS) held in May. DuBois was looking at a three-month weather outlook map forecasting rain during New Mexico’s summer months and monsoon season. 

“I really didn’t want to see this,” he said, swirling his mouse over a patch of brown in the Four Corners area. “Not a lot of good news there. This is showing some probability for below-average precipitation for northwest New Mexico.”

Source: National Oceanic and Atmospheric Administration

Experts agree 2020 is shaping up to be a challenging year for water in New Mexico. Despite a near-normal snowpack last winter, dry soil conditions and a very warm spring — with hardly any precipitation since January — has thrust much of the state into drought conditions, again. 

John Fleck, director of the Water Resources program at the University of New Mexico, referred to it as a “sneaky drought” during a separate presentation hosted by NIDIS. 

“How did this sneak up on us?

Environmental Project

With mother’s death, the endangered Prieto wolf pack is gone

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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.

Attorney General New Mexico

New Mexico joins multistate coalition asking for preliminary injunction on Clean Water rule

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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.

Air Quality

Hidden exposures: Studies point to unsafe levels of formaldehyde exposure in oil and gas communities in NM

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On a hot, dusty day in August last year, a group of regulators from the New Mexico Environment Department and the Energy, Minerals and Natural Resources Department traveled to Counselor, New Mexico, to tour the oil and gas sites that dot the landscape of the Greater Chaco region. 

The group included NMED’s Air Quality Bureau chief Elizabeth Bisbey-Kuehn, Environmental Protection Division director Sandra Ely, NMED Secretary James Kenney and EMNRD Secretary Sarah Cottrell Propst — all key regulatory figures in the state’s Methane Advisory Panel, tasked with developing new regulations around oil and gas emissions. Teresa Seamster, Navajo Nation Counselor Chapter Health Committee member, used the opportunity to present the findings of a recently completed health impact assessment (HIA), which found periodic spikes of formaldehyde and other pollutants associated with oil and gas development, recorded at unsafe levels for short periods of time near homes. 

“Formaldehyde is probably one of the most carcinogenic chemicals in air that you can have,” Seamster told NM Political Report. “It will cause irritation of the respiratory tract, it can lead to throat and nose cancer, chronic respiratory inflammation and bronchitis, it’s definitely something you do not want in the environment, and we were getting it in the open air at levels that require mitigation.”

“Formaldehyde was detected at all sites at unhealthy levels,” she added. 

Seamster and other volunteers from the chapter conducted the study under the guidance of the Environmental Health Project, a nonprofit public health organization that conducts scientific air quality monitoring for communities near oil and gas development. The report is currently unpublished — and will likely remain so until the COVID-19 pandemic subsides and the Navajo Nation government is able to reopen — but NM Political Report obtained a copy. It’s also the latest in a growing body of evidence, codified into multiple peer-reviewed studies conducted across the country, that indicates communities situated near oil and gas development are exposed to hazardous pollution at higher levels than either state or federal regulatory agencies recognize.

Clean Water Act

Ranchers, conservation groups unhappy with the new clean water rule, but for different reasons

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The Donald Trump administration only finalized its new clean water rule a few days ago and the regulation is already being challenged in federal court by ranchers, conservation groups and state governments. 

The conservation-focused New Mexico Wilderness Alliance joined a coalition of conservation groups that allege the new rule goes too far in gutting protections for many streams and wetlands in New Mexico and across the country. 

The New Mexico Cattle Growers Association, on the other hand, also filed a lawsuit against the administration, arguing that the new rule doesn’t go far enough in rolling back those protections. 

RELATED: EPA rolls back water protections for seasonal rivers and streams

Ephemeral and intermittent waters make up the meat of the rule change and its challenges. Previous versions of the clean water rule included ephemeral and intermittent streams, which only flow in response to precipitation events such as torrential rains or snowpack melt. The Trump administration’s version of the rule removes protections for all ephemeral streams and some intermittent waterways and wetlands. For New Mexico’s landscape, those terms define up to 90 percent of the state’s surface water. 

“It’s a bold step by the EPA to do this,” Tony Francois, senior attorney at the Pacific Legal Foundation, and who is representing the Cattle Growers Association, told NM Political Report. “They’re in for a lot of controversy and criticism for doing it.” 

A history lesson in defining WOTUS

The Clean Water Act’s regulations have been controversial since day one, mostly because the federal government has had a hard time delineating which waters should and should not be regulated at the federal level, as determined by the regulatory definition of “waters of the United States,” also known as WOTUS. 

Due to ambiguity in the original 1986 clean water rule, the EPA and the Army Corps of Engineers used their own interpretations of the term for years in their respective regulatory roles. In 2001 and 2006, the Supreme Court weighed in on the definition in two separate decisions, but no clear majority opinion emerged from those cases. 

“Those [regulations] were very expansive, they basically regulated all tributaries, without any qualifications, and that included ephemeral tributaries, basically any place where water would drain where it rained,” Francois said. 

Under former President Barack Obama’s administration, the EPA and the Army Corps of Engineers proposed a new rule in 2015 that attempted to clarify its boundaries using the “significant nexus” test, an idea proposed by U.S. Supreme Court Justice John Kennedy in the 2006 case.

Gila River

Udall, Heinrich introduce long-awaited legislation to protect portions of the Gila River

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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.

Environmental Project

Supreme Court asked to weigh in on stream access dispute that no one can agree on

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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.

Endangered Species Act

Audit finds ‘inappropriate’ handling of funds for lesser prairie chicken conservation

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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.