Proposed Revisions to New Mexico State Water Regulations
The New Mexico Environment Department's (NMED) is proposing changes to regulations that oversee Ground and Surface Water Protection in New Mexico (20.6.2 NMAC). Amigos Bravos submitted comments on the proposed rule revisions during two separate comment periods.
In our comments Amigos Bravos communicated concerns with NMED's proposal to add a definition of "discharge permit amendments" to the regulations. These permit amendments would allow the discharge of increased volume and concentration of pollutants into New Mexico's ground water without public notice. Amigos Bravos also opposes NMED's proposal to get rid of the current 5-year limit on water quality variances, which are provisions that allow polluters to discharge above standards.
Amigos Bravos does applaud NMED's proposal to increase permit fees for the first time in over a decade. The current fee structure for state discharge permits are outrageously low, and do not begin to cover the cost to New Mexico tax payers of issuing, monitoring, and enforcing state discharge permits. Amigos Bravos supports NMED in taking steps to decrease the amount that New Mexico citizens subsidize the issuance of permits to discharge pollution into New Mexico’s water resources. Click here to download a copy of our most recent comments.
The Triennial Review of Water Quality Standards is the public’s best opportunity to comment on and influence the state’s water quality Standards – water quality standards are the foundation for protection of human and environmental health from water contamination.
When the Triennial Review process was initiated in the spring of 2013, we began by obtaining and reviewing the scoping comments from other parties, which were exclusively industry groups and municipalities, and making a summary of these comments. Unfortunately these comments were all focused on weakening water quality standards. We have completed an extensive review of the New Mexico Enviornment Department’s (NMED) Public Discussion Draft. With our attorney from Western Enviornmental Law Center (WELC) we met with NMED technical staff to discuss our concerns about their proposed changes to New Mexico’s water quality standards. We then prepared and submitted technical written comments on the Public Discussion Draft. We also have successfully obtained two technical witnesses to prepare and present technical testimony – a Toxicologist and a Wildlife Biologist. Their technical testimony is currently being finalized by Amigos Bravos and WELC.
Major detrimental issues that will be raised – and that we will counter – during the Triennial Review include: allowing weaker site-specific metal standards; downgrading standards for man-made ponds; and the adoption of a streamlined process for polluters to apply for weaker standards. Positive changes in the standards that we have advocated for during this process to date include: adopting much needed nutrient standards, establishing mandatory permit compliance deadlines, eliminating standards that allow mixing zones (pollution zones) in rivers and streams, more protective standards for the waters on Los Alamos National Laboratory lands, and a more protective Aluminum standard for all of the state’s waters. We have identified the last two issues as potentially winnable priorities and plan to actively advocate for these during the hearing process.
Amigos Bravos has been successful at raising awareness about the Triennial Review process to numerous organizations, communities (specifically low-income and farming communities), and individuals that otherwise would not have known about or participated in the process. In addition, many of these organizations and individuals submitted comments and have commited to giving public testimony at the hearing. As a result we hope that both public health and the environment will be protected through the prevention of higher levels of metals, bacteria, and PCBs into our rivers and streams.
The Clean Water Act requires each state to create a report on the health of the state’s water bodies. This report includes a list of polluted waters bodies and priorities for clean up. Water bodies qualify for the “impaired waters list” when they are too polluted or degraded to support water quality standards. This impaired waters list is also called the 303(d) list. New Mexico drafts a water quality report every two years and submits it to the US Environmental Protection Agency (EPA) for approval. Current and previous water quality reports can be viewed and downloaded HERE.
The New Mexico Environment Department recently released a draft report on water quality in the state. Amigos Bravos submitted comments on this report highlighting our top concerns:
- Unclear and sometimes misleading reporting of percentages of polluted waters,
- Reductions in funding for New Mexico water quality programs, and
- Inadequate analysis at the state-level of climate change related impacts to water quality.
Download a PDF of our comments regarding the draft 2016-2018 303d/305b Integrated Report and List.
Dairies Mean Manure
Dairies in New Mexico generate almost 6,400,000 gallons of manure every day. That’s as much waste as 800,000 residents in Albuquerque, Las Cruces, Rio Rancho, Roswell, and North Valley and South Valley in Bernalillo County combined send to their wastewater treatment plants daily.
New Mexico has the highest average number of cows per dairy in the country, with over 2,000. These factory farms, also known as Concentrated Animal Feeding Operations (CAFOs), are not like the image the dairy industry wants to sell you: clean happy cows grazing far apart on lush green meadows. The truth is, dairy cows in New Mexico live in crowded and filthy conditions, walking in their own manure and getting constant injections of antibiotics to increase milk production and keep down disease.
Manure Means Contamination
Dairies are required to capture wastewater and store it in lagoons for use as nutrients for nearby crops or to evaporate. For decades, these lagoons were lined with manure itself, then with clay, both of which are known to leak dangerous levels of nitrates and pharmaceuticals into the ground and into drinking water aquifers.
New Mexico Environment Department monitoring data show that two-thirds of New Mexico’s dairies have contaminated groundwater with excess nitrogen from cattle manure. And 90% of New Mexico’s drinking water is drawn from groundwater sources.
The contaminants entering New Mexico’s drinking water supply pose a number of risks to water quality and public health. In addition to Nitrates, E. coli and Salmonella, other pathogens, hormones, and antibiotics are entering into our drinking water.
The Dairy Rule
In 2009, the State Legislature ordered the NM Environment Department to create a dairy industry-specific rule for protecting groundwater from dairy industry waste. When the dairy industry realized that they were not going to be able to write the regulations themselves and that residents in dairy country and environmental groups – including Amigos Bravos – were also going to participate, the dairy industry fought creating the new rule for almost three years.
Watching the Watchers
The Dairy Rule finally went into effect in January 2013. It is intended to make it easier to monitor dairy waste and improve waste management practices. However, Amigos Bravos has been following the permit process under the new Rule and the State – under Governor Martinez – has been allowing dairies to continue using practices that the new Rule prohibits and that will allow contamination to continue.
Investigating all the permits being issued by the NM Environment Department for over 170 dairies and checking to make sure they follow the Dairy Rule is an extremely time-consuming process. When we find violations, we need technical and legal assistance to support a challenge against the permits and the state agency.
The Campaign - "Got Muck?"
Amigos Bravos is working to hold the dairy industry accountable so that New Mexican’s drinking water will be safe for future generations.
For a comprehensive video about this campaign please see: http://www.youtube.com/watch?v=4gGKdMomySc
Check back here shortly to donate to our Got Much Campaign to fund the work needed to investigate the 170 dairy permits.
On May 7th two Judges of the Court of Appeals denied a stay of the Copper Mine Rule. The ruling means that copper mine companies may continue to pollute groundwater while the validity of the rule is being challenged - which can take a year or more.
See the full article here.
At a hearing on January 8th 2014, the New Mexico Water Quality Control Commission (WQCC) - a state decision-making entity responsible for protecting New Mexico's water - voted down a Motion to Stay the Copper Rule. In September 2013, the WQCC adopted the Copper Rule, which would allow contamination of groundwater beneath copper mine sites in New Mexico. The stay would have prevented the new Rule from being used by the New Mexico Environment Department (NMED) in copper mine permitting decisions while the Copper Rule is under appeal in the NM Court of Appeals. For more details, click here to see the Press Release.
On October 10th, 2013, an appeal of the New Mexico Water Quality Control Commission’s (WQCC) adoption of copper mining groundwater regulations was filed by Gila Resources Information Project (GRIP) and Turner Ranch Properties, L.P., represented by New Mexico Environmental Law Center (NMELC), and Amigos Bravos represented by High Desert Energy + Environment Law Partners. The groups are challenging the adopted copper mining rules because they expressly allow water pollution rather than prevent it. Proposed by the New Mexico Environment Department and the global copper mining company, Freeport-McMoRan Copper and Gold, the rules mark the first time in 36 years that the WQCC has set aside its mandate to protect the quality of the state's scarce groundwater resources. For more information on this development, please see the Press Release.
On September 10, 2013, the New Mexico Water Quality Control Commission (WQCC) voted 9-1 to adopt the proposed water quality rules for the copper mining industry. Click here for the press release with more information. After an 8-month stakeholder process to develop a draft rule that would be protective of groundwater at copper mine sites and provide regulatory certainty to industry, NMED upper-level managers ignored the recommendations of their technical staff and NMED Advisory Committee and rewrote the proposed rule. Despite all of the scientific evidence we submitted, and a huge public outcry in favor of protecting New Mexico's precious drinking water, we did not expect a favorable decision by the WQCC, which is composed of Governor Martinez appointees.
Amigos Bravos represented by High Desert Energy + Environment Law Partners, oppose the adopted rules on grounds that they violate the protections afforded under the Water Quality Act. Therefore, we the parties appeal the decision to the New Mexico Court of Appeals along with Gila Resources Information Project (GRIP) and Turner Enterprises represented by New Mexico Environmental Law Center (NMELC).
The adopted rules:
- Give the mining industry the right to pollute.
- Are in direct conflict with the State Water Quality Act that requires polluters to prevent groundwater contamination during their operations.
- Give the mining industry the right to pollute future drinking water supplies and impact the health of people and communities.
- Could pave the way for other polluters to demand similar rollbacks in water quality safeguards. This would lower the cost of doing business for the polluter while transferring the cost of clean up and the cost to address public health outcomes to New Mexico taxpayers.
In 2014, the Taos County Commission passed new comprehensive land use regulations that include Amigos Bravos’ proposed language for establishing setbacks from rivers, streams and wetlands; setbacks for hazardous waste storage, confined animal feeding operations and other high impact activities; and language that requires the use of Low Impact Development (LID) and Green Infrastructure (GI) in major development projects. We will build on this success in 2015 by engaging the Town of Taos to implement similar setbacks and LID and GI requirements.
On June 30th, Amigos Bravos submitted a petition to EPA for a determination that stormwater discharges in Los Alamos County contribute to water quality standards violations and require a Clean Water Act permit. This is the first petition of its kind in the nation. The petition cites EPA’s duty to issue a National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) permit to control urban storm water discharges from Los Alamos National Laboratory (LANL) and Los Alamos County into several canyons on the Pajarito Plateau. These canyons are listed as impaired (polluted) by the New Mexico Environment Department (NMED) for constituents such as PCBs, gross alpha, and heavy metals. We used LANL's own data to show that pollution was coming from urbanized areas at LANL, as well as from urbanized areas in the County. EPA has 180 days to respond to this petition. Work over the next year will involve communicating with EPA, LANL, and Los Alamos County about the petition and discussing issues such as potential areas of coverage under a permit and specific requirements to be included in a permit. If EPA denies our petition we will most likely appeal this decision in the courts.
The EPA has published a proposed rule clarifying six key program areas in the federal water quality standards regulation. These federal water quality standards help to implement the Clean Water Act. The proposed changes to the regulations will improve their effectiveness in restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. Program areas that are addressed in the proposed rule are: 1) the EPA Administrator's determinations that new or revised water quality standards are necessary; 2) designated uses for water bodies; 3) triennial reviews of state and tribal water quality standards; 4) anti-degradation provisions to protect water quality; 5) variances to water quality standards, and 6) compliance schedule authorizing provisions. Upon a positive rule, Amigos Bravos will advocate for the issuance of the rule before the end of the Obama Administration. If we believe the rule is a step back for the protection of our waterways, we will appeal the rule.
We recently received funding to undertake a study of the water-energy nexus with the goal of producing a set of water-conserving policy recommendations to be presented to the state legislature in 2016. The water-energy nexus is the relationship between how much water is evaporated to generate and transmit energy, and how much energy it takes to collect, clean, move, store, and dispose of water.
To understand the details of the water-energy nexus in New Mexico, we have hired a expert to investigate the large body of research already conducted on this topic and look for areas of our work where we can incorporate key findings in new and existing policies and regulations. In particular, we will look at policies that reduce greenhouse gas emissions in the transport of water as well as reduce water impacts from oil and gas drilling, coal mining, and coal-fired power plants. We will also work with allies to press for more rapid and widespread adoption of alternative energy sources for energy generation in the state.
In addition to these policy projects and any new ones that arise, we will also continue the on-going policy work that requires our attention. This includes: monitoring existing and proposed 402 and 404 Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits and the 401 certifications associated with them, watch dogging the Water quality Control Commission for an proposals to downgrade water quality standards, and monitoring applications for changes to the state Hydrology Protocols (developed to distinguish between ephemeral, intermittent and perennial streams and rivers).