Industries challenge state water rules

The Associated Press

SANTA FE — Mining, oil and gas, homebuilders and ranchers are challenging new state regulations that could let New Mexico adopt water quality rules that are more stringent than the federal ones.

The rules appear to give state regulators unlimited discretion to determine what water falls under their authority, the attorney for the challengers, Dalva L. Moellenberg, said Wednesday.

The groups filed notice late last month in the state Court of Appeals that they would challenge the regulations.

State Environment Secretary Ron Curry said Wednesday he was disappointed by their action and that the state is only trying to hold the line on water quality after the U.S. Environmental Protection Agency removed some federal protections.

“We want the waters that have been protected for the last 30 years to remain protected,” Curry said. “We are concerned that proposed changes at the federal level could threaten this resource.”

The EPA, responding to a U.S. Supreme Court ruling, stripped protections under the federal Clean Water Act from so-called ephemeral streams and bodies of water — those that don’t ultimately flow to the ocean. That left many New Mexico waters unprotected.

The state Water Quality Control Commission, at the urging of Curry’s department, enacted regulations earlier this spring freeing the state from the federal definition of what waters are protected.

The commission adopted a definition of “waters of the state” that lets New Mexico set standards to protect ephemeral waters.

The challengers are uncertain what the state covers.

“Our concern is that this new definition of ‘surface waters of the state’ can cover virtually any pooling or ponding or expression of water on the surface of the earth,” Moellenberg said. “And as a result of that, it has the potential to greatly expand the application of the surface-water standards and regulations, perhaps greatly beyond what anybody really intends or contemplates.”

Moellenberg said his clients see nothing in the new state rules that limits the state to what the federal government previously covered.