The Clean Water Act
The New Mexico (NM) Constitution established the requirement for the legislature to provide for control of pollution and to protect “the state's beautiful and healthful environment … [that is] of fundamental importance to the public interest, health, safety and the general welfare.” The 1967 NM Water Quality Act (NMWQA) gives the authority to its Water Quality Control Commission to define and adopt water quality standards and to direct programs consistent with federal requirements. In turn, the NM Environmental Department’s Statewide Water Quality Management Plan and Continuing Planning Process (WQMP/CPP) summarizes the water quality management system in the state and the roles of the major participants required by the Federal 1972 Clean Water Act (CWA), its subsequent amendments, regulations, and the NMWQA. The CWA and its updates establish the basic structure for regulating discharges of pollutants into the "waters of the United States" (WOTUS) and for setting standards for surface water quality. Enforcement of pollution discharges under the CWA is enforced by individual states and tribes that have received EPA approval, but NM is a notable exception as it has not applied for such approval. As such, point-source discharges in NM are left to be regulated by EPA Region 6. This is a particular concern for NM because, in complying with a recent Supreme Court ruling, the EPA announced in August 2023 that it no longer has the authority to regulate discharges into wetlands and intermittent waterways (which includes NM's arroyos) that do not have “a continuous surface connection” to larger waterbodies that remain continuously wet. In addition, the CWA does not directly address groundwater quality, which is instead covered by at least three other federal acts. Also, the NM Legislature removed from the authority of the New Mexico Environment Department the protection of surface water and groundwater from liquid oil field wastes and crude oil pollution and instead assigned the responsibility to enforce NMWQA requirements within NM's oil fields to the Oil Conservation Commission and the Oil Conservation Division. Public pressure may eventually produce necessary improvements to the ineffective in-state regulation of waste and wastewater discharges in NM. Currently, the Water Advocates are encouraging appropriate NM legislative committees, the NM State Engineer, and other relevant agency staff to develop alternatives for reorganizing all state agencies with authorities to plan and regulate NM’s water quality and quantity into a single organization potentially headed at the level of a cabinet secretary.
The Clean Water Act
Federal efforts to regulate water pollution began with the Federal Water Pollution Control Act (FWPCA) of 1948, the FWPCA Amendments of 1972 (known as the “Clean Water Act”), the Clean Water Act of 1977, and the Water Quality Act (WQA) of 1987. The 1977 update to the CWA established the objectives to restore and maintain the chemical, physical, and biological integrity of the surface waters of the United States and it recognized the responsibilities of the states in meeting these goals. In total, the CWA with updates established the basic structure for regulating discharges of pollutants into the "waters of the United States" and for setting standards for surface water quality.
Under the CWA, the US Environmental Protection Agency (USEPA) has developed national water quality criteria for pollutants in surface waters and established wastewater standards for discharges. The CWA made it unlawful to discharge effluents from any discrete conveyances (known as point sources, such as pipes or man-made ditches) into navigable waters, unless a National Pollutant Discharge Elimination System (NPDES) permit was obtained from the USEPA or from the state in which the discharge is located and where that state had applied for and were authorized by USEPA to grant NPDES permits to controls discharges. Unfortunately, NM has not applied for approval to regulate point-source discharges, which instead are left to be regulated by USEPA Region 6. This was originally justified by NM because of the relatively few point-dischargers in the state. More recently, questions have been raised whether this remains a true justification.
For the purposes of regulation, the USEPA identifies two broad categories of pollution: point-source pollution and nonpoint-source pollution. Point-source pollution is any contaminant that enters a surface water or waterway from an easily identified and confined location, such as a pipe or ditch. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need a NPDES permit; industrial, municipal, and other facilities must obtain NPDES permits if their discharges go directly to surface waters. Non-point discharges are characterized as those coming from many places at the same time. NPDES permits are mostly enforced by individual states and tribes (e.g., Isleta Pueblo) having received EPA approval.
Although the CWA is primarily implemented by the states, the USEPA remains responsible for establishing safe levels of contaminants, establishing policy and guidance for surface water quality programs, pursuing cleanup of contaminated Superfund and other toxic sites (usually in conjunction with the states), and overseeing grant and loan programs to provide funding for various water quality programs.
It is important to recognize that the CWA does not directly address groundwater quality, which is instead covered by the Safe Drinking Water, Resource Conservation and Recovery, and the Superfund acts. It is also important to recognize that Section 503 of the 1987 WQA establishes that regulations that apply to point-source discharges do not include agricultural stormwater discharges.
What Are WOTUS?
The CWA’s stated intent is to protect all waters with a "significant nexus" to "navigable waters." The phrase "significant nexus" produces considerable controversy, becoming open to judicial interpretation. The 1972 CWA uses frequently and interchangeably the terms "navigable waters" and "waters of the United States, including the territorial seas." In turn, some regulations have interpreted the 1972 CWA to include intermittent streams, playa lakes, prairie potholes, sloughs, and wetlands as "WOTUS." Then in 2006, the U.S. Supreme Court held that WOTUS “includes only those relatively permanent, standing or continuously flowing bodies of water 'forming geographic features that are described in ordinary parlance as 'streams[,]... oceans, rivers, [and] lakes.'" Yet attempts to define which waterways are actually protected following this ruling remained highly controversial.
In an attempt to resolve this controversy and to bring clarity to decades of political and legal debate over which waters should qualify as WOTUS, President Barack Obama issued the 2015 Clean Water Rule through executive action. This action broadened the WOTUS definition to about 60% of U.S. waters. As such, this rule produced increased controversy among many farmers, builders, mining companies, and oil and gas companies leading to their political and legal action.
Dirty Water Rule
In response to the 2015 Clean Water Rule, new federal rulemaking directed by President Trump produced the 2020 ‘‘Navigable Waters Protection Rule’’ (‘‘2020 NWPR’’). This 2020 definition became known as the Dirty Water Rule because it included only wetlands that directly abut other regulated waters or are separated from other regulated waters only by natural berms, banks, dunes, or permeable artificial barriers such as dikes, levees, or roads. As such, this rule produced widespread concern as it changed the definition of WOTUS to exclude millions of miles of rain-dependent streams and millions of acres of small lakes, waterfowl ponds, and wetlands from protection under federal CWA regulations for potential discharges of pollutants into most intermittent surface waterways, including arroyos in New Mexico and other western arid states. The resulting lack of effective control over either point or nonpoint discharges into these intermittent waterways left downstream perennial streams unprotected from any such upstream discharges that are often washed downstream. This led to additional political and legal action from environmental, conservation, and other like-minded groups. Then in 2021, both the U.S. District Court for Arizona and the U.S. District Court for New Mexico determined that this rule must be vacated due to serious errors that have the potential to cause significant harm to the WOTUS.
Subsequently, in January 2023 the US Army Corps of Engineers (USACE) and the USEPA (the agencies) developed and published in the Federal Register a 141-page new CWA rule intended to provide clear and updated definitions of WOTUS. The Federal Register summary for this update clarified that, “In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining ‘waters of the United States.’’’ In brief, this 2023 CWA rule returned to the water protections that were in place since 1987.
Then on May 25, 2023, the Supreme Court ruled in the case of Sackett v. EPA that the federal government can no longer regulate discharges into wetlands or intermittent drainages unless they have "a continuous connection" to larger, continuously wet waterbodies.
In August 2023, the agencies announced that they have reinterpreted the phrase “waters of the United States” to be consistent with this 2023 SCOTUS decision and have amended the CWA with a new rule revising its early published final 2023 “Revised Definition of ‘Waters of the United States’” to be consistent with this 2023 SCOTUS decision. That revision lifted protections from pollution for millions of acres of wetlands, effectively making thousands of wetlands and waterways off limits to any federal government pollution controls because they do not connect directly to larger bodies of water. This potentially subjects these wetlands and intermittent drainages to pollution without penalty and potentially jeopardizes sources of clean drinking water downstream. The deputy legislative director for the League of Conservation Voters said the revised regulations demanded by the SCOTUS ruling reflected “the Court’s disregard of science, the law, and basic common sense to put the profits of polluters ahead of the health of our communities."
Critical action by Congress, by state officials and legislators, and by conservation-minded organizations and individuals is necessary to restore the more than 50 years of CWA protection from discharges of pollutants to an estimated 90 percent of New Mexico’s waterways, including arroyos having only intermediate stormwater flows and waterbodies that only occasional hold water yet provided important habitat values for wildlife and native plants.
Water Quality Regulation in New Mexico
The NM Constitution states in Article XX, Sec. 21, “The protection of the state's beautiful and healthful environment is hereby declared to be of fundamental importance to the public interest, health, safety and the general welfare. The legislature shall provide for control of pollution and control of despoilment of the air, water and other natural resources of this state, consistent with the use and development of these resources for the maximum benefit of the people.”
The NM Water Quality Act (NMWQA), adopted in 1967, gives the authority to its Water Quality Control Commission (WQCC) to define and adopt water quality standards and to direct programs consistent with federal requirements. In turn, the NM Environmental Department’s Statewide Water Quality Management Plan and Continuing Planning Process (WQMP/CPP) summarizes the water quality management system in the state and the roles of the major participants required by the 1972 CWA, its subsequent amendments, and the NMWQA. The Statewide WQMP/CPP has the intent to produce a consistent approach to protect and improve our state’s water quality by establishing water quality standards to protect designated uses; periodically assessing water quality across NM; and identifying, prioritizing, and controlling sources of pollution that may adversely impact water quality. Again, as noted above, NM has not applied for approval to regulate point-source discharges, which instead are left to be regulated by EPA Region 6.
Liquid Oil Field Wastes
In NM, the protection of surface water and groundwater from liquid oil field wastes and crude oil pollution was removed years ago from the authority of the New Mexico Environment Department. The Legislature instead assigned responsibility to enforce New Mexico's Water Quality Act within New Mexico's oil fields to the Oil Conservation Commission and the Oil Conservation Division (OCC and OCD).
The NM Legislature in 2019 passed the Produced Water Act. It was written by oil and gas industry lawyers. It requires the Water Quality Control Commission and the New Mexico Environment Department to issue rules for treatment and reuse of produced water for non-oil field purposes, an extremely expensive, risky, and energy/carbon intensive proposition. The Legislature added language to restore to the OCC/OCD the authority to issue fines that had been stripped during Governor Susanna Martinez's administration.
Produced water is the industry's name for used fracking fluids and ancient sea water that flows or is pumped from oil wells. Industry's total reported produced water volume in 2020 was 172,542 acre-feet (56.2 billion gallons), up from 166,202 acre-feet in 2019. These liquid oil field wastes are from about 10% to more than 30% salt by weight. Produced water quality data are scarce.
The 2019 Produced Water Act authorizes--but does not require--the OCC and OCD to regulate produced toxic oil and gas wastewater “in a manner protective of public health, the environment and fresh water resources.” The OCC and OCD have not yet applied their new discretionary authority. The Produced Water Act requires OCD's annual report to the Legislature of OCD's enforcement actions. The 2020 report is required to be posted on the OCD website but such a posted report is not apparent.
Liquid oil field wastes, crude oil, brine, and chemicals accounted for 1294 of 1543 unauthorized releases self-reported by oil and gas operators in 2020 to the OCD. The other 249 were natural gas releases. These spills, an average of 3.5 each day in 2020, are not illegal. The vast majority are preventable, caused by equipment failure, corrosion, human error, and overflows of storage tanks and pits. The 2020 self- reported produced water volume spilled was 2.4 million gallons. Crude oil spills totaled 0.54 million gallons. Spills of brine, fracking fluids, chemicals, natural gas liquids, and condensate, and "other" totaled 5.7 million gallons.
Spills often flow into arroyos or ephemeral waterways and drainages. Remediation is limited to surface soils removal and disposal. Only one of the 1294 spills self-reported in 2020 has a value for the depth to groundwater at the spill location. Omission of this data violates an Oil Conservation Division requirement that it does not enforce.
Increased public pressure may eventually produce necessary improvements to the ineffective regulation of these waste discharges.
Sources and References
Clean Water Act Summary, 33 U.S.C. § 1251 et seq. (1972): https://www.epa.gov/laws-regulations/summary-clean-water-act
Clean Water Rule: https://en.wikipedia.org/wiki/Clean_Water_Rule
EPA just announced plans to repeal the ‘Dirty Water Rule.’ https://environmentamerica.org/blogs/environment-america-blog/ame/epa-just-announced-plans-repeal-%E2%80%98dirty-water-rule%E2%80%99-here%E2%80%99s-what
Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency. 2023. Revised Definition of ‘‘Waters of the United States, Final Rule.” https://www.federalregister.gov/documents/2023/01/18/2022-28595/revised-definition-of-waters-of-the-united-states
USEPA, 2023. Amendments to the 2023 Rule. https://www.epa.gov/wotus/amendments-2023-rule
Gaume, Norm, 2021. Produced water essay, Santa Fe New Mexican: https://www.santafenewmexican.com/opinion/my_view/dont-let-oil-and-gas-off-the-regulatory-hook/article_4f7c6cfe-8209-11eb-8148-f3fd94960aeb.html
Judge Ditches Trump’s Dirty Water Rule: https://earthjustice.org/news/press/2021/judges-ditches-trumps-dirty-water-rule
Justia, 2023. Sackett v. Environmental Protection Agency, 598 U.S. (2023), https://supreme.justia.com/cases/federal/us/598/21-454/
Leavitt, Marcy. 2006. Water Quality Regulation. WRRI Water Quality for the 21st Century Conference (2006). https://uttoncenter.unm.edu/resources/research-resources/water-quality-regulation.pdf
NM Constitution download site: https://www.sos.state.nm.us/about-new-mexico/publications/nm-constitution/
NM Water Quality Management Plan and Continuing Planning Process. https://www.env.nm.gov/surface-water-quality/wqmp-cpp/
NM Environmental Department. Clean Water Act Section 401 Certification of Federal Permits. https://www.env.nm.gov/surface-water-quality/clean-water-act-section-401-certification/
NM Oil and Gas Division Rules: http://www.emnrd.state.nm.us/OCD/rules.html
NM regulations effectiveness for toxic oil and gas wastewater: https://www.abqjournal.com/1484490/state-regulations-on-toxic-oil-and-gas-wastewater-are-leaky-at-best.html
New Mexico Wild, 2023. Supreme Court weakens the Clean Water Act. Member Advisory Newsletter, June 2023. Also: https://www.nmwild.org/2023/05/25/new-mexico-wild-statement-on-sackett-v-epa-decision-narrowing-of-waters-of-the-united-states-definition/
Any technical papers, data, opinions, announcements, etc. that relate to this Clean Water Act issue appear just below.
The Santa Fe New Mexican has published an Op-Ed entitled “State must come together to protect water.” It addresses Clean Water Act rule changes that endanger streams in New Mexico. “… Like capillaries of watersheds, streams that don’t have water in them year-round recharge aquifers and deliver water downstream for wildlife and human use. If…Read More