The Clean Water Act

 

Issue Summary

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 mostly enforced by individual states and tribes that have received EPA approval; NM is a notable exception as it has not applied for such approval. As such, point-source discharges are left to be regulated by EPA Region 6.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 requirement 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 collaborating with 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" (WOTUS) 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 EPA 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 EPA 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 interpreting the 1972 CWA to include intermittent streams, playa lakes, prairie potholes, sloughs and wetlands as "waters of the United States." 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 from many farmers, builders, mining companies, and oil and gas companies that led to their political and legal action.

 

Dirty Water Rule

In response to the 2015 Clean Water Rule, new federal rulemaking in 2020 produced what became known as the Dirty Water Rule, 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 were often washed downstream. This led to additional political and legal action from environmental, conservation, and other like-minded groups. As a result, in August 2021, the U.S. District Court for Arizona determined that this rule must be vacated due to serious errors that have the potential to cause significant harm to the WOTUS. Today, WOTUS have now returned to the water protections that were in place since 1987. The USEPA is currently working toward developing clearer definitions of WOTUS to be included under a new CWA rule to replace the dirty water rule.

 

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.

 

Some sources reviewed for this summary and suggested links for continued reading:

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

 

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

 

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

 

NM Oil Conservation Division Liquid Oil, Chemicals, and Waste Spills Data: https://wwwapps.emnrd.state.nm.us/ocd/ocdpermitting/Data/Spills/Spills.aspx

Posts - Any technical papers, data, opinions, announcements, etc. that relate to this Clean Water Act issue appear just below.

State must come together to protect water

By Executive Committee | April 7, 2021

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…

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We welcome postings on this or other water-related issues from interested parties.  Please email your posts, preferably in Word format, to the Editorial Board at Info@MRGWaterAdvocates.org

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