New Mexico’s 2020 Statewide Water Quality Management Plan and Continuing Planning Process Approved by EPA
On October 23, 2020, the United States Environmental Protection Agency (EPA) approved New Mexico’s 2020 Statewide Water Quality Management Plan and Continuing Planning Process (WQMP/CPP). Broadly speaking, the WQMP/CPP outlines the processes by which New Mexico manages its water quality programs, including protecting and improving water quality. The 2020 WQMP/CPP is available here.
General Overview of WQMP/CPP
Pursuant to the federal Clean Water Act and its implementing regulations, States are required to have a Water Quality Management Plan (WQMP) and a Continuing Planning Process (CPP). A CPP outlines the processes used to manage a state’s water quality program. See 40 C.F.R. § 130.5. A state’s CPP must meet certain minimum requirements prescribed by federal law. A WQMP is used to implement water quality assessments to determine how point and nonpoint water quality problems are prioritized and outlines alternative solutions and recommendations for control measures. See 40 C.F.R. §. 130.6. A state’s WQMP/CPP must address certain, specified elements to implement water quality management planning, including, but to limited to:
- The process for developing TMDLs, and a list of approved TMDLs;
- The process for developing effluent limitations identification of the effluent limitations;
- Information related to municipal and industrial waste treatment works;
- The process for establishing and implementing new or revised water quality standards (WQS);
- Regulatory and non-regulatory programs to control nonpoint source pollution;
- Programs to control dredge and fill material;
- Relationship to applicable basin plans;
- Programs for ground water pollution;
- The process for determining the priority of permit issuance.
See 40 C.F.R. § 130.6 (WQMP); 40 C.F.R. § 130.5 (CPP).
Background of New Mexico’s WQMP/CPP and Reasons for Update
The New Mexico Water Quality Control Commission (“WQCC”) is the state agency tasked with approving the WQMP/CPP, while the Surface Water Quality Bureau (SWQB) of the New Mexico Environment Department (NMED) is the state agency tasked with drafting and updating the WQMP/CPP. New Mexico first adopted the CPP in 1976 and the WQMP in 1978. The WQMP and CPP were consolidated in 2011, which also was the last time the WQMP/CPP was updated.
According to the 2020 WQMP/CPP, New Mexico’s WQMP/CPP
is intended to provide a consistent approach to preserve, protect, and improve water quality by ensuring that WQS [Water Quality Standards] are established to protect designated use, the quality of water in the environment is periodically assessed, and point and nonpoint pollution sources that may adversely impact water quality are identified, prioritized, and controlled.
See 2020 WQMP/CPP at I-1.
The SWQB determined to update the WQMP/CPP to
- Incorporate changes and new developments that have occurred since the last revision;
- Update the Antidegradation Policy;
- Incorporate the Wetland Program (Previously Section XV) into regulatory mandated portions of the WQMP/CPP primarily under the Nonpoint Source Management and Control; and
- Update program descriptions and citations to referenced documents.
The SWQB released a draft WQMP/CPP for public comment on November 22, 2019. The comment period lasted 75-days and closed February 5, 2020. The SWQB received seven comment letters from, among others, Amigos Bravos (an environmental nonprofit focused on New Mexico’s waters); US EPA; Questa Mine; and Triad National Security (Los Alamos National Labs). The comments were reviewed, summarized, and SWQB provided responses to the comments on May 20, 2020, available here. Most of the comments were directed at the changes to the Antidegradation Policy, discussed in more detail below.
The WQCC considered the proposed revisions and updates to the WQMP/CPP at a June 9, 2020 public hearing. As a result of that hearing, the WQCC remanded the WQMP/CPP to SWQB to address 1) watershed effects on surface water quality; 2) climate change, including Governor Lujan Grisham’s Executive Order 2019-0003 on Addressing Climate Change and Energy Waste Prevention, available here; 3) municipal separate storm water sewer systems (MS4s); and impacts arising from the changes to the definition of “Waters of the U.S.” See June 25, 2020 WQCC Order available here.
On September 8, 2020, the SWQB presented the revised WQMP/CPP to WCQQ. On September 21, 2020, the WQCC approved and adopted the 2020 WQMP/CPP. See September 21, 2020 Order available here. The 2020 WQMP/CPP was then submitted to EPA for approval, which occurred on October 23, 2020.
The 2020 WQMP/CPP includes both substantive and non-substantive changes. In terms of non-substantive changes, for example, the 2020 WQMP/CPP changed formatting and grammatical corrections and typographical errors contained in the prior version. The 2020 WQMP/CPP also revised sections for clarity and consistency, and added updated citations and reference materials.
In terms of substantive additions, or changes, the 2020 WQMP/CPP highlights certain “significant challenges” to New Mexico water quality, including climate change; stormwater and MS4s; changes to the definition of “Waters of the U.S.” that, according to SWQB, “will put more burden on the State’s water quality management agencies,” and watershed management and water quality. The majority of the changes relate to the Antidegradation Policy. The Antidegradation Policy describes how waters are to be protected from degradation, and protects existing instream uses. New Mexico’s antidegradation protections consist of three levels, or “Tiers, which are applied on a pollutant-by-pollutant basis. Tier 1 is the default protection level for all surface waters—it provides a minimum or floor of protection for existing instream uses. Tier 2 applies to perennial surface waters with high quality water, and requires that existing high-quality water be maintained but allows for limited degradation. Tier 3 protections are for waters designated as Outstanding National Resources Waters (ONRWs), where no degradation is permitted except in limited circumstances.
The Antidegradation Policy was updated to include: a glossary; a process for identifying the Tier that applies to a particular surface water; a new section outlining the procedures for determining baseline water quality; approaches to evaluate water quality degradation; procedures for identifying less degrading or non-degrading alternatives; procedures for evaluation the importance of economy and social development to support degradation of high quality surface water; and intergovernmental coordination and public participation processes. See Antidegradation Policy available here; see also June 2020 Presentation available here. As discussed above, the changes to the Antidegradation Policy received the majority of comments. The comments on the Antidegradation Policy ranged from requesting that the Policy be revised to impose more stringent requirements (Amigos Bravos) to commending SWQB on the development of a detailed antidegradation implementation policy (EPA) to criticizing the Policy for being more restrictive and imposing more burdens on applicants/permittees than the then-existing policy (other commenters).
Although the SWQB changed some of the more restrictive language in the draft version in in response to comments, the SWQB did not adopt all of the proposed comments or changes suggested by the other commenters. Thus, the 2020 Antidegradation Policy may have impacts on regulated users, such as entities engaged in industrial activity that results in stormwater discharges. For example, in carrying out NMED’s Clean Water Act Section 401 certification responsibility, in August NMED relied in part on the then-existing Antidegradation Policy to propose certain controversial conditions on its certification of EPA’s proposed Multi Sector General Permit (MSGP) for stormwater discharges associated with industrial activity, including one specifically relating to discharges that may reach ONRWs.
 NMED’s website provides an overview of changes made from the prior WQMP. See https://www.env.nm.gov/surface-water-quality/historic-wqmp-and-cpp/; see also https://www.env.nm.gov/surface-water-quality/wp-content/uploads/sites/25/2019/11/2020-09-21-WQCC-Order-WQMP-CPP-20-34-final.pdf.