New Mexico’s groundwater protections may take a hit

The state has long been a leader in this area – is that about to change?

  • Bill Olson, a former New Mexico groundwater bureau chief, was hired as a consultant by the state's Environment Department to draft new groundwater quality rules, but ended up testifying against them.

    Michael Clark
  • Gov. Susana Martinez's administration has made efforts to revise New Mexico's strict groundwater protection rules in ways that could benefit mines like the El Chino copper mine in Silver City.

    John Wark
  • New Mexico Gov. Susana Martinez assesses damage from recent floods in Las Vegas, New Mexico.

    AP Photo/Albuquerque Journal, Roberto E. Rosales

After three weeks under glaring lights in a Santa Fe hearing room, the 10 men on New Mexico's Water Quality Control Commission looked weary. Some were hypnotized by laptops, and binders stacked like monuments to the complexity of groundwater regulation obscured others. But when Bill Olson wheeled a handcart piled with document boxes to the witness stand, the commissioners perked up, adjusting their glasses. The April afternoon grew tense.

Olson, a neatly bearded water guru in cowboy boots and a bolo tie, had sat on this commission for 13 of the 25 years he spent regulating water quality for the state, including running its groundwater bureau. He retired in 2011, planning to spend his time riding horses, repairing the neglected stucco on his home, and doing some hydrological consulting.

He did begin the consulting work, at least. The Environment Department hired him to help draft a new groundwater pollution rule for copper mines. Olson's contract stipulated that he would testify for the state when the commission, which has final say on new regulations, considered the "copper rule." But in a surprising twist, he was there that April day to oppose the rule he'd been hired to write. Olson spent the better part of a year drafting his arguments, working full-time with no pay. His motivation was simple, he says. In a state where almost everyone drinks groundwater, "It's important."

As a regulator, Olson sought the middle ground between business and environmentalists. The copper rule ultimately proposed by the state was unquestionably good for the mines. But Olson believed last-minute changes made by the Environment Department's top brass upended New Mexico's Water Quality Act by giving mines a free pass to sully groundwater. The rulemaking had become political. To Olson, it was jeopardizing one of the public's most precious resources.

The copper rule's undoing follows a larger trend in New Mexico. Historically a leader in groundwater protection, New Mexico spent the last decade gradually strengthening its rules for major polluters. But since taking power in 2011, Republican Gov. Susana Martinez's administration has aggressively attacked environmental protections. The copper rule is the latest reform, and potentially the most damaging. Water-quality advocates fear it will set a precedent for all polluters, from drycleaners to molybdenum mines. As Olson puts it: "It's probably the biggest thing to happen with groundwater protection in New Mexico since the rules were first adopted 35 years ago."

Susana Martinez is among the nation's most popular governors, with an approval rating consistently over 60 percent in this blue-leaning state, largely due to her reputation as an independent thinker. ("Susana Martinez: What Palin could have been," read a 2012 Salon headline.) She campaigned on economic development and smaller government, but declined to slash classroom funding to balance the budget, and was one of the first Republican governors to accept the Medicaid expansion accompanying Obamacare.

She's fits the modern conservative stereotype on natural resources, though, valuing them primarily for their economic potential. Early in her campaign, she pledged to repeal the state's rules for oil and gas waste disposal -- the nation's most stringent. "The folks in the oil industry are good stewards of the Earth," she said. "To continually regulate them is to regulate them out of the state." She promised to "help those who play by the rules and punish those who do not," supporting both business and the environment.

But she also aimed to change the rules. On her first day in office, she suspended publication of all pending regulations for 90 days, buying time to strategize their repeal. She then created a small business-friendly task force to find what she called "irrational red tape." The panel, which included Cabinet secretaries and lobbyists for energy, dairy and copper, recommended scrutinizing three agencies: the Energy, Minerals and Natural Resources Department, Game and Fish, and the Environment Department. It pegged groundwater regulation as a top priority, and suggested "looking for ways to mitigate" the problems created by career managers with "anti-business political agenda(s)."

The solution, it appears, was reorganization. By May 2011, four Environment Department managers who oversaw large or controversial regulatory programs were reassigned to bureaus in which they had little expertise. For instance, Hazardous Waste Bureau Chief James Bearzi, who oversaw the cleanup of a major jet fuel spill at Kirtland Air Force Base -- and criticized the military's handling of it -- was transferred to surface water quality, while that division's boss, Marcy Leavitt, was moved to petroleum storage tanks -- a regulatory Siberia.

Managerial shakeups aren't unusual under new governors. But environmental advocates and former agency employees say the recent changes cut deeper than usual. "The Martinez administration has moved out anyone who is effective or who had knowledge or skill in geology and hydrology," says Bruce Frederick, a trained hydrologist and an attorney with the New Mexico Environmental Law Center, which is fighting the copper rule and other regulatory rollbacks. "The idea is to make the Environment Department ineffective."

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