WQCC 25-74(R): Proposed Amendments to 20.6.2 NMAC & 20.6.5 NMAC

Hearing Details: 

Public comment will be heard every day of the hearing, June 8-18, at 1pm Public comment can be given in person or virtually: Please sign up here to provide public comment. NOTE: it is not necessary to sign up here to give a public comment, but we strongly request you do so because then we can ensure that commenters are spread across the 10 days of hearings. We will send you a reminder with the meeting details closer to the date of hearing. If you don’t sign up you can always just join or show up when you are available to comment using details below.

In person: NM State Capitol, 490 Old Santa Fe Trail, Santa Fe

• Monday 6/8 – Room 307
• Tuesday-Thursday 6/9-6/11 – Room 309
• Friday 6/12 – Room 307
• The week of 6/15-6/18 – Room 322 each day.

Virtually: Webex Meeting Link,

Link to Events Calendar: If you have trouble joining, or the link isn’t working for you, please go to the state Events Calendar for more information.

Background:

Federal rollbacks have stripped Clean Water Act protections from up to 95% of New Mexico’s streams and up to 88% of its wetlands — protections that had been in place for half a century during which industry, agriculture, wildlife, and communities thrived. Last year, New Mexico responded by passing a bill (SB21) to create its own surface water permitting program to protect its precious waters from becoming unclean, unreliable, and unsafe. We now need the state to adopt strong rules to implement SB21 that clearly outline all the specific requirements for controlling the release of pollution into our rivers, streams, lakes and wetlands.

Water provides the foundation of our way of life. It sustains a growing $50 billion annual agriculture industry led by chile, pecans, onions, and fruit. Water helps sustain New Mexico’s recreation economy, generating hundreds of millions of dollars every year. Our centuries-old acequia systems require clean water to keep New Mexico’s culture alive. The health and wellbeing of our families rely on clean water. The enchantment of New Mexico — its lands, people, and wildlife all need clean water to survive and thrive.

New Mexico’s waters face numerous threats. Climate change is making our state more arid every year. With higher temperatures and worsening aridification, our limited water sources need to be protected. Furthermore, industrial growth from mining, oil and gas exploration, and data centers are all increasing demands on our water sources while presenting serious pollution dangers.

New Mexico needs a strong rule to protect clean water — the basis of all life here and everywhere.

Specifically, the rule must include:

• Protections for the full breadth of New Mexico’s surface waters: The state program must protect all of New Mexico’s surface waters — including rivers, streams, wetlands, and the smaller tributaries and drainages that sustain them. Efforts to chip away protections and exclude specific types of waters must be rejected.
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• Requirements that are at least as protective as lost federal requirements: To ensure that we are adequately protecting New Mexico’s waters, the historic clean water protections outlined in the federal Clean Water Act —under which industry, agriculture, and communities thrived — must be a minimum for protections, not a maximum. Specifically the federal requirements for avoiding, minimizing and compensating for impacts from dredging and filling in wetlands and other waters (referred to as the 404(b)(1) guidelines)  must be included in the state program.
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• Meaningful Avoidance-First Rules for Dredge & Fill: Require applicants first demonstrate they are working to avoid damage or destruction to a wetland or waterway before minimization and mitigation is considered for both individual and general permits. To accomplish this, the project purpose must be clearly defined, and applicants must be required to identify and select the least environmentally damaging practicable alternative (LEDPA) before a dredge and fill permit is issued.
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• Robust Compensatory Mitigation Requirements: Establish a minimum 2:1 mitigation ratio so when wetland or water areas are destroyed, twice as much is created or remediated. This is because remediated areas are usually not as highly functioning as the originals that were destroyed. A 2:1 baseline mitigation ratio tracks what is required by other states and helps prevent a loss of wetland acreage and function. NMED should be required to develop detailed mitigation guidance that includes requirements for comprehensive mitigation plans.
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• Engagement with the Department of Wildlife: New Mexico’s Department of Wildlife was recently modernized and adequately funded and is ready to support the state’s habitats and wildlife using the best available science. It’s common across many states for state wildlife agencies to play a meaningful advisory role in the surface water permitting process. For a rule that could dramatically impact at-risk wetlands and stream-side habitat, requesting the Department of Wildlife’s expertise is both common sense and essential to long term protections and habitat health.
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• Meaningful Public Participation on General Permits: NMED should hold a 15-day public comment period on all general permit notices of intent—posted to the department’s website—and allow the public to petition for general permit coverage decision review. This public participation for general permits ensures that New Mexico residents impacted by a proposed permit have a voice in the process.
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• Tribal Water Protections: Permits should be denied if they could cause or contribute to pollution that exceeds downstream Tribal water quality standards for both individual and general permits. NMED’s definition of Tribal water quality standards must be adopted and not weakened as proposed by industry. Provisions to require the department to review requests for general permit coverage to determine that they will meet downstream Tribal water quality standards must be added. In addition, consultation with Tribes prior to the issuance of general permits must be a requirement instead of a suggestion.
  • The commission must adopt the Water Protection Organizations’ proposed language at 2306.C(5)(c) that adds a provision that requires NMED determine that a proposed general permit discharge won’t cause or contribute to a violation of Tribal water quality standards. This language is needed to ensure discharges authorized under general permits do not violate downstream water quality standards as required by SB 21 and the Water Quality Act.
  • The commission must also adopt Water Protection Organizations’ proposed language at 2305.B that makes agency and Tribal consultation a requirement when developing general permits. Since the majority of discharges will be authorized under general permits, and it is unlikely that there will be consultation when permittees request coverage under a general permit, it is essential that consultation be required during the development of the general permits.

• General Permit Issuance Standards: Require the secretary to make a written finding before issuing, renewing, or modifying a general permit that:

1. 1. Authorized activities will have no more than minimal individual or cumulative adverse effects on the water resource;
   2.  Activities will not violate water quality standards including those meant to deter wetland and water quality degradation;
   3.  Dredge and fill general permits require avoidance and minimization of impacts.

• Streamlined Permits for Restoration: Groups restoring and repairing damaged wetlands and streams are not the same as polluting entities looking to clean up their messes. Therefore, the new rule needs to treat these two groups differently. The final rules need a streamlined process for restoration permits, without overly complicated paperwork, so the work to restore surface waters can begin without delays.