By Scott Wyland, The Santa Fe New Mexican

Regulators are requesting $600,000 this legislative session to aid the state in establishing the authority to safeguard New Mexico’s waterways after a U.S. Supreme Court ruling disqualified most of them from federal protection. 

The need for full state autonomy in managing water resources, which are declining as climate change makes droughts more intense and frequent, was underscored by the Environmental Protection Agency cementing the high court’s decision into official policy last year.

This money would, among other things, help the state create a database of New Mexico’s waterways to determine which ones are no longer federally protected and which are the most at risk from pollution, development and other human-made hazards. 

Last year, lawmakers approved $680,000 to assist the state Environment Department in taking the first steps to form a permitting program to help protect rivers, lakes, streams and other surface waters from polluted discharges. 

This second round of funding would enable the state to make some significant strides in pursuing its own regulatory power for surface water, advocates say. 

“It will be a piece of getting that state-led surface-water quality permitting program set up, which is really critical for making sure that New Mexico’s waters are protected moving forward,” said Tricia Snyder, rivers and water program director for New Mexico Wild.

That proposed funding is part of the executive and Legislative Finance Committee’s budget recommendations.  

Meanwhile, state Sen. Siah Correa Hemphill, D-Silver City, has introduced Senate Bill 111, which would earmark $840,000 to boost water monitoring and enforcement of existing state protections. The money also would be used to generate mapping to illustrate which waters are no longer federally protected. 

New Mexico’s waterways are among the most vulnerable in the country, Snyder said. 

That’s partly because New Mexico is one of three states that has no authority to regulate polluted discharges from industry under the Clean Water Act, she said. 

Instead, it must rely on the EPA and its ever-changing policies for regulation and permitting of discharges, including which waters qualify for protection. 

Last year’s Supreme Court decision severely narrowed EPA’s authority to protect wetlands and the bulk of New Mexico’s waters, Snyder said — increasing the urgency for the state to take charge of water oversight. 

Officials have said it will take at least several years to stand up a program in which they can regulate state surface waters that aren’t considered U.S. waters. It will take another two or three years after that for the state to establish what’s known as primacy, the authority to oversee permitting for U.S. waters.  

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.

In May, the justices agreed to do away with the “significant nexus” test from an earlier Supreme Court decision that stated a wetland was protected if it connects to a U.S. water indirectly or even ecologically.

The court ruled 5-4 to impose the stricter standard that a wetland must have a direct and “relatively permanent” link to a U.S. water. 

That language in the decision cuts protections from nearly all of New Mexico’s waters because they are questionable when it comes to being relatively permanent, Snyder said. They are either ephemeral — meaning storm-generated — or intermittent, flowing seasonally.

Another water advocate said both proposed funding streams are important in improving protections for the state’s waters. 

The $840,000 will give state regulators the wherewithal to enforce regulations as well as provisions under the state Water Quality Act to offer some safeguards to waterways while the larger permitting program is being developed, said Rachel Conn, deputy director of Taos-based Amigos Bravos. 

Although the state 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, Conn said. 

“We, of course, would like to see more of the state commitment to moving more quickly because we have waters that are in danger now,” Conn said. “It’s going to take more investment on the state’s part for developing and implementing the program.” 

Conn said she supports the Environment Department’s efforts to get lawmakers to increase the agency’s budget to bolster hiring and retention. A bigger staff will be required to launch and effectively run a water program of this scale, she said. 

Jack Milarch, CEO of the New Mexico Home Builders Association, said he would welcome state protections of water, a limited resource in New Mexico and essential for new housing, as long as regulators don’t simply copy the EPA approach the Supreme Court squelched. 

Builders used to have to build expensive stormwater systems near ditches that might get sporadic runoff trickling down them, Milarch said, adding  virtually all arroyos in the region are indirectly linked to the Rio Grande. 

Regulators need to come up with surface water rules that make sense in an arid state, something that often wasn’t the case with federal agencies, he said. 

“We’re not into polluting the water,” Milarch said. “We’re just not into wasting our customers money, either.” 

In Southern New Mexico, the loss of federal protection is allowing copper mines and the Silver City treatment plant to discharge into waterways with no permits, said Allyson Siwik, executive director of the Gila Resources Information Project. 

She commended the state for trying to use groundwater permits to hold the polluters in check, but these are stopgap measures that have their limits, she said.

For instance, it’s not clear whether a groundwater law could stop companies from discharging into closed basins, she said, adding it will take a comprehensive surface-water program to do that. 

Now is the time to get the ball rolling when the state has a huge budget surplus, Siwik said. New Mexico must free itself from the federal government, whose policies see-saw depending on who’s in office, and protect its waters, she said. 

“We need a program as soon as possible,” she said.