By Alaina Mencinger
The Santa Fe New Mexican

“Whiskey’s for drinking, water’s for fighting.”

A cliche, perhaps, but it rang true Wednesday night as state senators butted heads over the impact of a major overhaul of New Mexico’s water regulations.

Some Republican senators questioned whether Senate Bill 21 went too far and could harm economic development. But bill sponsor Senate Majority Leader Peter Wirth, D-Santa Fe, said the measure maintained a 50-year “status quo” by mirroring federal protections that were in place for decades — at least until a 2023 U.S. Supreme Court decision disrupted protections for waters that don’t run year-round. 

“About 95% of our water in New Mexico, our surface water, was deregulated,” Wirth said. “What this bill does is amend the Water Quality Act here in New Mexico to basically fill in that regulatory gap. … Essentially, the state will do exactly what was done from 1972 until 2023 when this change happened at the federal level.”

The bill, which ultimately passed on a party-line vote, allows for the state to take over the administration of National Pollutant Discharge Elimination System permits from the Environmental Protection Agency and creates a $50 million fund to clean up sites where contamination is threatening groundwater.

Most states administer discharge permits under the Clean Water Act themselves, New Mexico being one of just three states that let the EPA handle the permits. 5,000 permits are currently being managed in the state. 

The state Environment Department has said that the measures could help fill in gaps in protections left by the 2023 Sackett v. EPA ruling. The majority of New Mexico’s waterways dry up for parts of the year, which could leave them in a difficult regulatory position. 

Despite being a key term, “waters of the United States” isn’t defined by the federal Clean Water Act, and over the years, legal challenges have chipped away at what waterways are included by the term. 

A 2006 ruling included waterways with a “significant nexus” to navigable waters, or waters that can be involved in interstate commerce. A “significant nexus” could be a surface connection, groundwater or other links. 

The Sackett decision eliminated the “significant nexus” provision, maintaining that Clean Water Act protections apply only to permanent bodies of water and wetlands with a continuous connection to navigable waters. 

For arid states like New Mexico, that could hang a majority of waterways out to dry. 

A fiscal analysis for the bill stated that while the Environment Department currently employs 10 people and spends around $900,000 per year on regulating surface water discharges, the changes would likely require a significant expansion. The analysis states the proposed program could require up to 50 staffers and around $7.1 million per year to manage, although part of that funding could be made up with permitting fees. 

But fees aren’t a guarantee. They would have to be established by rulemaking following the passage of the legislation. Currently, under federal oversight, regulated parties don’t have to pay any permit fees. Most of the states that administer their own permits charge a processing fee, according to the fiscal analysis.

In a news release sent out by Senate Republicans after the vote, Sen. Candy Spence Ezzell, R-Roswell, called the measure an attempt to “Trump-proof” the state from changing federal policies and said she was “skeptical” that the Environment Department could tackle the permitting program. 

“While the rest of the nation is reducing regulations and easing the permitting process, the Californication of New Mexico continues,” Ezzell said. 

But Sen. Jeff Steinborn, D-Las Cruces, called it a “bill of necessity” due to the Sackett decision rather than a policy choice.

“If we do not enact this bill, once contamination occurs, everybody — I don’t care if you’re a conservative Republican or a liberal Democrat — points at the government and says, ‘Why didn’t you protect us?'” Steinborn said.

Sen. Angel Charley, D-Acoma, said the bill could help protect much of the water in her district, where around 10,000 miles of streams and more than 8,200 acres of wetlands have been stripped of federal protections. 

“Our waterways are seasonal. They’re ephemeral,” Charley said. “We welcome water into our arroyos, ditches, wetlands and streams when our snowcaps melt and when the monsoons bring the hard rain. This cycle has sustained the ways of life for many of our ancestors, and it’s time for New Mexico to take responsibility for our waterways.”