The Clean Water Act

Issue Summary

The 1972 federal Clean Water Act (CWA) established requirements for restoring and protecting "waters of the United States" (WOTUS) from adverse effects due to pollutants. Sadly, controversial federal rulemaking in 2020 changed the definition of WOTUS to exclude millions of miles of rain-dependent streams and millions of acres of wetlands from CWA safeguards. As with other western arid desert states, this ended protection under federal regulations from potential discharges of pollutants into most of New Mexico's surface waterways, including our many arroyos. This change, commonly called the Dirty Water Rule, was welcomed by many farmers, builders, mining, and oil and gas, companies. With the change, chemical pollutants now can be dumped into arroyos and other rain-dependent streambeds without federal limitations. These pollutants can then flush downstream during storm events to flow in our streams, rivers, lakes, and reservoirs. Since NM currently lacks effective regulations and enforcement to prevent harm from such discharges into NM’s rain-dependent waterways, these discharges can and will occur, in violation of NM constitutional requirements.

Background

 The New Mexico (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 Federal 1972 Clean Water Act (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.

Federal efforts to regulate water pollution began with the Federal Water Pollution Control Act (FWPCA) of 1948, the FWPCA Amendments of 1972 (which became 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. This act established the basic structure for regulating discharges of pollutants into the waters of the United States and for setting standards for surface water quality.

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.

Although the CWA is primarily implemented by the states, the U.S. Environmental Protection Agency (EPA) 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.

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. Non-point discharges are characterized as those coming from many places at the same time. Point-source discharges are regulated under the CWA by EPA’s National Pollutant Discharge Elimination System (NPDES) permits and are mostly enforced by individual states having received EPA approval. Unfortunately, NM has not applied for approval to regulate point-source discharges, which instead are left to be regulated by EPA Region 6.

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 have 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 rule broadened the WOTUS definition to about 60% of U.S. waterways. As such, this rule produced increased controversy with additional political and legal action.

In February 2017, President Donald Trump directed EPA and the Army Corps of Engineers to review and rewrite the 2015 Clean Water Rule to again clarify the WOTUS definition and to reassess the rule to be consistent with promoting economic growth and minimizing regulatory uncertainty. Following a series of court rulings, the Trump administration in October 2019 formally repealed the 2015 Clean Water Rule and directed the EPA and the Corps to being new rulemaking to redefine WOTUS. The revision was published in 2020, further rolling back protection on certain wetlands and streams as well as eliminating requirements for landowners to get EPA approval for certain modification of their own lands. This is now regularly called “The Dirty Water Rule.” Again, these changes led to increased controversy with additional political and legal action.

The Dirty Water Rule is of particular concern in NM and other desert states as it now excludes pollution prevention under federal regulations for rain-dependent (ephemeral and intermittent) streams. Such waterways, including NM arroyos, are no longer protected under federal regulations from discharges of pollutants, such as agricultural and industrial wastes, including oil and gas drilling wastewater. When discharged onto dry streambeds, these toxicants become readily available to be flushed downstream during the next storm into perennial (permanent) flowing waters, lakes, and reservoirs. In February 2020 the Co-Chairs of the House Committee on Transportation and Infrastructure asked the president to direct the EPA and the Corps to immediately repeal the Dirty Water Rule. Repeal and replacement of this rule is in progress.

Liquid Oil Field Wastes

It needs to be added here that 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:

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 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

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

Dirty Water Rule: https://www.npr.org/2020/01/23/798809951/trump-administration-is-rolling-back-obama-era-protections-for-smaller-waterways

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

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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