SANTA FE — The New Mexico Environment Department (NMED) released a notice Thursday to industry and municipalities holding a federally issued Clean Water Act (CWA) discharge permit of the possible regulatory implications due to the recent U.S. Supreme Court decision in the matter of Sackett v. EPA (Sackett). NMED’s notice comes within one month of the U.S Supreme Court’s decision and is intended to protect New Mexico’s water by alerting such permittees of important state laws and their requirements if the federally issued discharge no longer applies.
In Sackett, the court ruled wetlands that do not have a continuous, indistinguishable surface connection with “waters of the United States” (WOTUS) are not federally protected under the CWA. Consequently, industry and municipalities holding such permits may have questions regarding jurisdictional issues, including whether they are required to retain their federally issued CWA discharge permit based on the Sackett decision.
The U.S. Environmental Protection Agency (EPA) currently issues CWA discharge permits in New Mexico. There are approximately 3,950 active discharge permits in the state, including over 3,600 stormwater discharge permits and 350 industrial, feed lot, or other types of discharge permits.
If a discharge permit is no longer required because of the Sackett decision, New Mexico state laws may apply to wastewater treatment facilities, units and discharges as follows:
• An industrial or municipal wastewater treatment facility may be required to obtain a groundwater discharge permit pursuant to New Mexico Ground and Surface Water Protection regulations.
• An industrial or municipal wastewater treatment facility may be required to meet new terms and conditions of an existing groundwater discharge permit or require the issuance of a new groundwater discharge permit.
• An industrial or municipal wastewater treatment facility may be required to meet federal and state hazardous waste requirements.
“While regulatory questions may abound as a result the U.S. Supreme Court’s decision, science and New Mexico law dictate that New Mexico must increase its protections of our limited and precious water supply,” said Environment Cabinet Secretary James Kenney. “Aridification resulting from climate change and contamination from emerging contaminants like PFAS are examples of the many threats to New Mexico’s vital surface and groundwaters.”
NMED’s notice will inform industry and municipalities of potential environmental liabilities following the Sackett decision. The department anticipates additional guidance and state rules may be necessary to address the implications of the Sackett decision. NMED anticipates that the U.S. EPA may further clarify the regulatory framework resulting from the Sackett decision in the coming months. NMED will continue to update its website and social media on federal and state implications of the Sackett decision.