Supreme Court ruling triggers reconsideration of water permitting in New Mexico

June 19, 2023 — In New Mexico, obtaining a permit to use water from the State Engineer is mandatory.  The criteria set by the State Engineer for evaluating applications for new appropriations or changes in water usage includes:

• Availability of water;
• Ensuring existing rights are not compromised;
• Conformance with state water conservation measures; and
• Ensuring public welfare is not adversely affected.

The legal framework also stipulates that applicants must make their application public via newspaper publication, granting anyone with valid concerns the right to challenge the application.

When it comes to water quality, the water rules will likely change following the Supreme Court’s ruling in Sackett v. Environmental Protection Agency.

Significant Revisions Required After Supreme Court Ruling.

In light of the US Supreme Court’s recent decision to limit the scope of the Clean Water Act in terms of the proper test for determining whether wetlands are “waters of the United States” under the Clean Water Act, 33 U. S. C. §1362(7). Environmental officials indicate that New Mexico must extensively broaden its water permitting program. The Court’s ruling stipulates that the jurisdiction of the Environmental Protection Agency (EPA) over wetlands only extends to those with a permanent surface water link.

Scaling Up the Water Quality Permitting Program.

In a meeting with the Water and Natural Resources Interim Committee, John Roderick, the Director of the Water Protection Division, underlined the need to significantly enlarge the state’s Water Quality Permitting Program. However, he pointed out that the program would require a substantial period to reach full functionality. “The goal is to achieve primacy, allowing us to replace the EPA, which essentially means we must shoulder the entire responsibility,” he commented. “We are considering executing this in phases, and if you scrutinize the overall blueprint of this implementation, we project that it would take about seven years to fully establish the program.”

Staff and Funding Challenges for the New Program.

Roderick indicated that 44 full-time employees would eventually need to be recruited to staff the permitting program. The financial implications of the enhanced program are significant, with annual costs estimated at $5.9 million – nearly ten times the current budget.

Upon reaching full operational capacity, the New Mexico Environment Department plans to fund the program through a combination of permit application fees and annual charges. There’s also a possibility of supplementing these with allocations from the general fund.