Who is writing New Mexico's water regulations?


Updated on 5/22/13.

New Mexico environmental regulators under Republican governor Susana Martinez are overseeing attempts to roll back a suite of groundwater regulations. While the administration’s argument for loosening rules on dairies, mines and oil and gas marches to the drumbeat of jobs, jobs, jobs, all they have to do is look in their own backyards to see the cost and grief water polluters run amuck eventually inflict on communities, and taxpayers.

Here's an example: the Chino copper mine near Silver City, New Mexico is one of the longest-operating mines in the West. The mine’s current owner, Freeport-McMoRan, just started mining there again in 2011 and the company is on the hook to restore thousands of acres of heavy metal-contaminated groundwater.

Yet just recently, a newly proposed state rule to limit groundwater contamination from copper mines, known as the “copper pit rule”, was inexplicably gutted in Santa Fe after a long stakeholder process. Water watchdog groups Amigos Bravos and the Gila River Information Project (GRIP) that participated in drafting the proposal to protect groundwater were baffled after their comments were essentially ignored in the final proposed rule.

The copper pit rule proposal was born out of a 2009 law passed by the New Mexico legislature to help give mining companies predictable water quality standards, rather than negotiating on a case-by-case basis, which is expensive for everyone involved. From January to August 2012, water quality advocates Amigos Bravos and the GRIP met with Freeport-McMoRan and the New Mexico Environment Department to negotiate a rule that met industry best practices. That included things like putting synthetic liners under new waste rock piles and tailing impoundments, to prevent pollution from leaching into groundwater.

When representatives from Amigos Bravos and GRIP left the advisory panel in August last year -- after nearly two dozen meetings -- they felt the proposed rule was reasonable. But when the final draft came back from the environment department in the fall of 2012 they were shocked, saying that it looked like someone had just hit “accept all” on changes proposed by the copper company.

No one is sure exactly who implemented what GRIP president Sally Smith calls a “blatant switcharoo,” in the rule language, but there does appear to be conflict of interest within the New Mexico Environment Department. Their general counsel, Ryan Flynn, a Martinez appointee, worked for Modrall Sperling, a large law firm which has represented Freeport-McMoRanin past cases before the environment department, writes Laura Paskus in the Santa Fe Reporter. (Flynn, however, has never represented an mining company and says he recused himself from working on the copper rule for a year after joining the environment department.)

Fortunately for a state that gets 90 percent of its drinking water from groundwater, the New Mexico Attorney General’s office isn’t chock full of Martinez appointees. Attorney General Gary King, who was elected rather than appointed, thinks the draft rule violates state water quality law by allowing mines to discharge water that does not meet the drinking water standard. They are also concerned it could set a precedent for everyone from dairies to dry cleaners to pollute the water beneath them. The New Mexico Water Quality Control Commission will consider the regulation in April, and if the commission accepts the rule it could end up in appeals court.

Unlike Mexico City, which has drilled a mile below ground in order to secure new water sources even states in the Southwest aren’t yet squeezing every drop of agua out of underground rock. But last year groundwater rescued farmers in the lower Rio Grande, just one reminder that we shouldn’t take a single acre-foot for granted. As Mike Wireman, an EPA hydrologist, warned in a recent ProPublica story about how U.S. policy allows pollution of deep aquifers since no one thought it would ever be affordable to tap them: "Around the world people are increasingly doing things that 50 years ago nobody would have said they'd do."

Sarah Jane Keller is an intern at High Country News.

Image of the Chino copper mine near Silver City, New Mexico by Eric Guinther courtesy of Wikimedia Commons.

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