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NEW MEXICO’S PROTECTION OF CRITICAL WATERS UPHELD (press release 1.07.13)
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New Mexico’s wilderness rivers, streams, lakes, and wetlands got a late Christmas gift this year. On December 26, 2012, the New Mexico Court of Appeals rejected a challenge by the New Mexico Cattle Growers Association to appeal the historic 2010 Water Quality Control Commission decision that protected 700 miles of perennial rivers and streams, 29 lakes, and 4,930 acres of wetlands in designated Wilderness Areas as Outstanding National Resource Waters (“ONRWs”).
In a unanimous opinion, the Court held “that the Cattle Growers’ Association has not shown that it is adversely affected, thus failing to establish a statutory requirement for pursuing its appeal, which we dismiss.”
“The ONRW designations respect all New Mexican’s interests—including the Cattle Growers’—in the protection and management of water quality in our Wilderness waters. This is a victory for clean water in New Mexico!” said Rachel Conn of Amigos Bravos.
“When these critical waters were designated, we worked hard with the state agencies to ensure that these protections balanced our bottom-line need for clean, drinkable water with traditional uses of these waters, including grazing and our critically-important acequia system,” added Erik Schlenker-Goodrich, Executive Director of the Western Environmental Law Center.
Oscar Simpson, with New Mexico Backcountry Hunters and Anglers, emphasized,“these protections were put in place during Governor Richardson’s administration but defended in court by Governor Martinez’s administration. This shows that water quality protections can and do enjoy broad political support—support that we very much appreciate.”
Ronald Loehman, with New Mexico Trout, said that “we’re glad this litigation is over so that we can move forward with the good work of protecting and managing these recreationally and ecologically important waters—waters that are essential for healthy trout populations.”
“The Court’s decision upholds historic water quality protections for our State’s Wilderness waters—protections that will benefit current and future generations of New Mexicans,” said Jeremy Vesbach with the New Mexico Wildlife Federation.
BACKGROUND
On February 25, 2010, after conducting 18-months of public hearings and discussions, the New Mexico Environment Department, New Mexico Department of Game and Fish, and New Mexico Energy, Minerals, and Natural Resources Department petitioned the New Mexico Water Quality Control Commission to designate specific rivers, streams, wetlands, and lakes as Outstanding National Resource Waters (“ONRWs”). The petition implemented a promise made by Governor Richardson, on Earth Day in 2008, to protect New Mexico’s headwaters as ONRWs.
ONRWs are a designation made by states—here, New Mexico’s Water Quality Control Commission—pursuant to the federal Clean Water Act. ONRWs are designated “[w]here high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance.” 40 C.F.R. § 131.12(a)(3). Once designated, ONRWs are afforded a high level of water quality protection. In short, “no degradation” of water quality is allowed in ONRWs. 20.6.4.8.A NMAC(3). In New Mexico, to balance the need for water quality protection with ongoing use and management, there are exceptions for pre-existing land use activities like grazing; acequia operation, maintenance, and repairs; public health or safety; and restoration activities. See 20.6.4.8.A(3), (4) NMAC. Ultimately, these protections help fulfill the promise of the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
Upon receipt of the ONRW petition, the Water Quality Control Commission provided for public input, including lengthy public hearings, in the summer and fall of 2010. On November 30, 2010, the Commission approved the historic protections, codifying its decision in a December 13, 2010 Statement of Reasons.
On January 14, 2011, the New Mexico Cattle Growers challenged the Water Quality Control Commission’s actions in the New Mexico Court of Appeals.
Amigos Bravos, New Mexico Backcountry Hunters and Anglers, New Mexico Trout, and the New Mexico Wildlife Federation—represented by the Western Environmental Law Center—subsequently intervened in the Court of Appeals to defend the Water Quality Control Commission’s actions. Each group had previously advocated for the ONRW protections and provided technical testimony and public input to the Water Quality Control Commission.
For more information on WELC's work to protect New Mexico's clean water, click here.