FOR IMMEDIATE RELEASE

Victory for Clean Water in New Mexico

State’s Right to Protect Water Upheld in Court Against Industry Challenge

Contacts:
Rachel Conn, Amigos Bravos: (505) 758-3874 / (505) 770-8327
Erik Schlenker-Goodrich, WELC: (505) 751-0351

New Mexico: In a complete rejection of an industry lawsuit against the State of New Mexico, the New Mexico State Court of Appeals in a 3-0 judicial opinion affirmed New Mexico’s right to protect all New Mexico’s waters – a seemingly obvious idea, but one that has been vigorously challenged by a consortium of industry groups.

“The Court’s common sense opinion affirms New Mexico’s right to protect our water and the many people who depend upon clean water for drinking, irrigation and recreation,” stated Rachel Conn, a Policy Analyst with Amigos Bravos. Erik Schlenker-Goodrich, an attorney with the Western Environmental Law Center who represented Amigos Bravos and an alliance of community groups who intervened in the lawsuit on behalf of the State added, “It is deeply troubling to know that these industry groups think that many of our State’s waters don’t deserve protection. We’re deeply heartened, however, that the State has defended the public’s interest in clean water, and that the industry’s legal arguments proved meritless.”

In 2005, the New Mexico Water Quality Control Commission, with the support of the New Mexico
Environment Department and Amigos Bravos, wisely revised New Mexico’s definition of “surface water” to ensure that efforts to curtail the reach of the federal Clean Water Act did not harm New Mexico’s ability to protect water against pollution. However, the New Mexico Mining Association, New Mexico Home Builders Association, New Mexico Oil and Gas Association, New Mexico Cattle Growers Association, New Mexico Wool Growers Inc., Chino Mines Company, and Phelps Dodge
Tyrone, Inc., challenged the Commission’s decision in the New Mexico State Court of Appeals, effectively seeking to carve a loophole that could have exposed up to 90% of the New Mexico’s waters to serious harm from unregulated dumping of pollutants.

Amigos Bravos, a river conservation organization, organized an alliance with several other groups including the Gila Resources Information Project, New Mexico Trout, New Mexico Acequia Association, 1000 Friends of New Mexico, and the Sierra Club to intervene in the lawsuit on behalf of the State. The groups, represented by the Western Environmental Law Center, worked with the State to successfully defend the State’s right to protect all surface water from pollution before the Court of Appeals of the State of New Mexico.

“Now that we have defended New Mexico’s right to protect New Mexico’s waters at the state level, we need to ensure that the Federal Clean Water Act is restored to protect all that waters that it historically protected. The Clean Water Authority Restoration Act will fix the problems with the Clean Water Act and ensure that all New Mexico’s waters as well as thousands of miles of stream nationwide are protected”, added Conn.

Background Information
The federal Clean Water Act (CWA), passed in 1972, is the major federal mechanism for protecting our Nation’s surface waters. Though a federal law, the CWA establishes a cooperative management framework with each state, including New Mexico, to establish water quality protections. In New Mexico, surface water is also protected by the State’s Water Quality Act (WQA). By exercising authority under both the CWA and WQA, the State, with EPA approval, establishes water quality
standards that protect surface water from unacceptable pollution.

Historically, there was little question that the scope of protection under the federal CWA was broad, and overlapped closely with the scope of protection under the state’s WQA. However, a decision by the Supreme Court of the United States – Solid Water Agency of Northern Cook County v. U.S. Army Corps of Engineers – created uncertainty and was exploited by the Bush Administration to limit the scope of the federal Clean Water Act by interpreting “waters of the United States” to exclude federal protection for so-called “nonnavigable, isolated, intrastate waters”.

In 2006, the Supreme Court of the United States, in a rare 4-1-4 decision – Rapanos v. U.S. Army Corps of Engineers – created further uncertainty – in significant part because there was not a clear majority – that endangers the otherwise long-standing protection of our nation’s waterways, by affording water quality protection to non-navigable tributaries and adjacent waters only if, according to Justice Kennedy, there is a “significant nexus” to navigable waters. This effectively creates a case-by-case approach to water quality protection that invites political interference at the federal, state, and
local level.

In New Mexico, these federal actions are being used by major polluting industries to justify the denial of protections to many of New Mexico’s waters because New Mexico’s old definition of surface waters closely followed the federal definition. This could place as much as 90% of New Mexico’s stream miles and all of its closed basins (40% of the state’s land area) and playa lakes in jeopardy.

Amigos Bravos, worked with the Water Quality Control Commission to uphold New Mexico’s authority to continue to protect all state waters, regardless of what the federal government does or does not do. In February 2005, the Commission unanimously decided that all waters of the state (with some limited exceptions) should continue to be subject to water quality standards, as they had prior to the 2001 and 2006 Supreme Court decision’s and subsequent Bush administration policy.

Now that the industry’s challenge has failed before the Court of Appeals for the State of New Mexico, there are three future possibilities. First, these industry groups could appeal to the New Mexico Supreme Court. Second, and more likely, these economically and politically powerful industry groups will attempt to rollback the victory through the state legislature – they tried this in the 2006 legislative session and were narrowly defeated. Third, the United States Congress could pass the Clean Water Authority Restoration Act, which would reaffirm the historical jurisdiction of the 1972 Clean Water Act and ensure all "waters of the United States" that have been covered by federal protections for 34 years retain federal Clean Water Act protection. This bill would ensure that even if industry is successful at tying New Mexico protections to federal protections, all New Mexico waters that have received water quality protections since 1972 would continue to do so.

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