A new bill proposes to limit the state's power over surface water protection
By Christie Chisholm
Ben Seigling remembers getting his knees muddy and hair full of silt wading in the Rio Grande as a little kid. He remembers digging his toes into the sand as he battled the river's currents. He also remembers the many long hours he spent on the river and in the Bosque over the last year, as part of a program offered by the Indio-Hispano Academy of Agricultural Arts & Sciences, studying water and soil quality and talking to the local farming community. And he remembers last February, when he and six of his peers testified in front of the Water Quality Control Commission in hopes of raising surface water standards for a long stretch of his embattled childhood playground.
Ben, now a freshman at Robert F. Kennedy High School, testified last year at the commission's Triennial Review in support of a petition filed by the Rio Grande Community Development Corporation (RGCDC) and the South Valley Partners for Environmental Justice (SVPEJ). The petition requested that the commission upgrade the standards for the part of the Rio Grande that reaches from the Alameda Bridge all the way south to Elephant Butte. This portion of river, which is shallow and muddy but still chock full of summertime swimming holes just like Ben's, had previously been classified as "secondary contact" surface water, meaning that it was designated by the state as suitable for fishing, but not for swimming, canoeing or any other activity that might lead to folks swallowing the water. This classification belies the Rio Grande's purpose, said Seigling, considering for hundreds of years locals have been escaping to their convenient neighborhood river to combat summer heat.
Although the petitioners didn't necessarily want to promote swimming in the river, they did want the state to recognize that swimming already occurs, said Julie Stephens, director of RGCDC. And in order to ensure that the community isn't at a health risk, the groups asked the state to raise the standards for the river to "primary contact" levels, which is the point where swimming would be safe. Specifically, they asked them to reduce the levels of fecal coliform (otherwise known as treated human excrement) found in the water.
Their efforts paid off. After hearing testimonies from Ben and his peers that they, as well as hundreds of others, have been swimming in the river their whole lives, and after months of deliberation, the commission decided to grant the organizations' request and raise the cleanliness standards for the river, so that all future residents who get the urge totake a quick dip won't have to worry about ingesting unseemly amounts of fecal coliform.
Amigos Bravos, a Taos-based nonprofit river advocacy group, also filed several petitions with the commission, one of which proposed to modify the state's definition of surface water. In the past, the state's definition has always been closely linked to the federal definition of surface water, which essentially means that the state would protect and monitor the same bodies of water that the federal government protected. However, in recent months this began to concern some people because the Bush administration has been altering the way that it interprets the Clean Water Act, and, therefore, the definitions of what water the federal government will protect. This means that some bodies of water that were previously regulated under the Clean Water Act are no longer protected. And since the state's standards were tied to federal standards, this also means that some New Mexico water lost protection as well.
Although altered interpretations of the Clean Water Act obviously affect the whole country, it seems to be particularly alarming to New Mexicans, since water is such a rare and precious commodity in the Southwest. Amigos Bravos won their case, and New Mexico changed its definitions of surface water, so that it is no longer tied to federal definitions; it also expanded the scope to include closed basins, which were previously not protected. This means, if the state chooses, New Mexico can have more stringent water quality standards than the federal government, and it can monitor water quality that would otherwise be ignored by the federal government.
However, there are some folks in the state who are not so happy with the recent change, and who, through a current legislative bill, are trying to reverse it. Senate Bill 583 is aimed at relinking state and federal definitions of surface water. The goal of the bill is to "[provide] that Water Quality Commission regulations and standards for surface water [be] no more stringent than required by federal law."
Rep. Jose A. Campos (D-Santa Rosa), sponsor of House Bill 711, the twin bill to SB 583, says that the reason he is supporting the bill is because the state's recent changes have gone too far, and says that the WQCC's decision was made hastily, without adequate input from entities such as ranchers and contractors. Sen. Stuart Ingle (R-Portales), sponsor of SB 583, adds that the dairy association is also affected by the bill, and in strong opposition to it. Groups such as these, Campos says, are upset by the changes to surface water definitions because increased water quality standards make it more expensive for them to run their businesses. He says that one of the changes they are most concerned about is in relation to playa lakes, which now are protected by the state. Playas are seasonal lakes that average about 17 acres in size, according to the Playa Lakes Joint Venture website. The amount of water in them is dependent on rainfall, and they are oftentimes dry from periods of drought. Campos says that with the state's new regulations, one of the risks to ranchers and dairy producers is that cow manure could collect in playas during dryspells. When the rainy season comes, and the lakes fill up again, water tests would show that the lakes were contaminated, and industries could get cited.
But Rep. Miguel P. Garcia (D-Albuquerque), who voted against HB 711 in its House Committee Report, says that dairy producers and similar industries need to learn how to deal with the process of ensuring certain water quality standards, and says that such industries are already favored in much of the state's legislation. "They have to adhere to [certain standards], but they don't seem to want to do that," says Garcia. Garcia, in turn, is concerned about the implications of the bill. "[The bill] would have a lot of surface waters not come under the jurisdiction of state water quality standards—that's kind of shocking to begin with," he says.
Rachel Conn, of Amigos Bravos, is also worried about the impacts of the bill if it passes. "It's really limiting the state's ability to protect our water, our environment, and our citizens," she says, "it's like the state is shooting itself in the foot." Conn says that by not protecting areas such as playas and closed basins, which would be excluded from protection if the bill is passed, the state is compromising its wildlife, groundwater and the health of its citizens. She says that such bodies of water not only provide habitat for over 60 species of waterfowl and shorebirds, several of which are endangered, but that many local tribes depend on closed basins for their drinking water as well, in addition to religious practices.
Derrith Watchman-Moore, Deputy Cabinet Secretary for the New Mexico Environment Department, agrees. "Anytime you have water in a bowl, such as a playa or a closed basin, that water draws in wildlife, and they could suffer a health impact. Then you have other contaminate going into these bowls that seep into and contaminant the groundwater, and that's when it becomes a health issue," says Watchman-Moore. She says that if the bills pass, and the federal government continues on the path it's heading toward, that cities such as Tularosa, Silver City and Alamogordo, as well as many other Southern cities that are situated by closed basins, could lose protection from the state. "If the bills passed, then you might have a situation where discharge is no longer permitted and regulated, and you'd have sewage running into the basins," she says.
But beyond the environmental and health impacts of the bill, others are just as worried about its impact on community action. "I think that it's a travesty for this bill to be introduced, to reduce the accomplishments of the community," says Gloria Castillo, spokeswoman for RGCDC, who believes that the bill, by way of limiting the state's power, will also limit local communities. "Rather than citizens being able to access their own local government to address issues of environmental concern, they would have to petition at the federal level," she says. Castillo cites her organization's successful petition last year as an example of local advocacy work that will become obsolete. "What's underway is an effort to make it more difficult for citizens to address environmental concerns in their own area," she says.
Rep. Campos, on the other hand, speaks to a different kind of community, and argues that state businesses and industries weren't involved enough in the water commission's decision to change the state's definitions. He believes that this bill is the first step in addressing the concerns of everyone in the state, and hopes that the issue can "go back to the drawing board." "I think it's something that we must all work through together," he said. "I'm not saying that we're not going to want to further the discussion or make more strict standards, I think that we as a community need to look at those issues, but we need to all have an opportunity to have a voice."
Still, Jon Goldstein, spokesman for the New Mexico Environment Department, said that Campos' claims that the water commission wasn't fair to state businesses are unfounded. Goldstein says that the Triennial Review is part of a months-long process where "everyone is encouraged to come and say their piece."
"The agricultural interests were involved, as well as some of the mining interests, and testified before the Commission. This is something that was going on in the light of day for many months."
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