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

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Since 1978, New Mexico's Water Quality Act has taken the long view, saying that all groundwater must meet state standards, unless a polluter can prove it doesn't have a use, such as drinking water or irrigation, now or in the future. That doesn't mean the aquifer under the copper mines is pristine. Some past pollution controls have failed, and mines can ask for case-by-case exemptions when contamination seems unavoidable. To get such "variances," companies must make public requests before the Water Quality Commission. The commission has never denied a variance if doing so would have shut down a mine, says Olson.

But Freeport McMoRan objects to the process' uncertainty. Variances, which in some cases mines couldn't operate without, must be renewed every five years. On top of that, the state never provided specific guidance on the measures mines must take to comply with the Water Quality Act, making negotiations with regulators endlessly frustrating, with permitting sometimes dragging on for years. "The resulting uncertainty makes investment in New Mexico relatively risky," testified Freeport McMoRan's vice president of New Mexico operations, John Brack. "We ask the commission to take the politics out of the process and create a system that is based on a practical approach to mining."

Last August, after more than 20 meetings, Olson and water-quality advocates -- including Silver City's Gila Resources Information Project and northern New Mexico's Amigos Bravos -- thought the rule was more than a good start to protecting water and satisfying the mines' need for predictability. It retained variances, and spelled out the specific anti-pollution steps mines would have to take, like placing synthetic liners beneath waste-rock piles and tailings impoundments.

As Olson wrapped up the proposed rule to send to upper management, Freeport McMoRan submitted comments that scrapped variances altogether, removed most liner requirements, and even allowed groundwater pollution, as long as it was captured and treated before migrating beyond a certain boundary -- a technique that's failed before. Olson didn't incorporate those suggestions, and he and a technical staffer explained why in a memo: They violated the Water Quality Act. He then sent the rule off to two top managers at the time, David Martin, and Jim Davis, plus the department's general counsel, Ryan Flynn. The managers directed Olson to make the changes suggested by Freeport McMoRan.

When the department released its rule to the public three days later, the environmental groups were floored: It gave the mines concessions that the Environment Department and Water Quality Commission had denied for years. And the changes corresponded almost word-for-word with Freeport McMoRan's suggestions.

Ryan Flynn, who has since been appointed Environment Department secretary, defends the new rule's legality. If the law indeed required all groundwater to be protected for future use, a mine could never be permitted without a variance.  (Opponents don't dispute that this would be true for new open pit mines.) Some pollution is inevitable, he says, despite the best controls. Flynn also argues that variances discourage investors, and that the copper rule is consistent with the department's past practices of issuing permits without requiring all groundwater to meet state standards. "Our rule is not a rollback," Flynn insists.

Olson, who signed many of those permits, says that's simply not true. Copper mines have been granted only two variances, both for leach piles in areas that are already polluted. And rather than shutting down operations, the department has renewed permits for mines with failing pollution controls, he concedes. But even so, if a mine wanted to expand, it would not receive new permits explicitly allowing pollution in an unsullied area. The new copper rule would allow that, trusting the mines to clean it up later.

Such an approach to groundwater protection is contrary to the philosophy that has guided Olson's career: that preventing pollution in the first place is both safer and cheaper in the long run. He couldn't testify in favor of the rule, and so he ended his contract, unsure what else to do.

Then, in November -- "for cheap entertainment" -- he began reading documents posted online prior to the hearing. The state attorney general was asking the department to send the rule back to the commission for violating the Water Quality Act, and the department's response claimed that the rule codified past practices. Olson worried that the commission wasn't getting accurate information, and because 10 of the 14 members were new, they might not know the difference. Of those members, four are citizens appointed by the governor, and state agencies choose the rest from their ranks. Past commissions have been weighted with technical experts, like a Game and Fish biologist, a health department epidemiologist, and a hydrologist from the state engineer's office. But under Martinez, political appointees have displaced scientists and engineers.

Plus, for the first time in Olson's memory, not a single member of the state's technical staff -- the people who typically provide scientific justification for new rules -- would testify at the hearing. That was the final straw: He decided to challenge his former employer.

Flynn argues that his agency was not silencing its staff. Rather, it was freeing them to process backlogged permits, and from having to contradict their testimonies from past hearings, now that the state's position has changed. It now interprets water quality protection to include permitting pollution, as long as it's eventually cleaned up. "There is nothing in the Water Quality Act that prohibits what we're proposing," Flynn says.

But the rule's opponents fear it will undermine the principle the Water Quality Act is built on, setting a potentially dangerous precedent. If the copper industry doesn't have to protect its groundwater, why should dairies, uranium mines, or any of the state's 1,000 permit holders? "You're allowing pollution," Olson says. "Why can't other industries do the same thing? It opens the whole floodgate."

During opening statements this spring, an Environment Department lawyer told the water quality commissioners: "Let me be clear. This is what I'm asking you to do: Adopt the rule exactly as proposed."

In September, the commission obliged. They changed only two typos in the 42-page document, and their deliberation was the shortest observers recall for a complex rule. Doug Bland, a geologist with the New Mexico Bureau of Geology, was the only commissioner to urge scrutiny of the rule -- and the lone vote against it.

The New Mexico Environmental Law Center and Democratic Attorney General Gary King plan to appeal. Olson didn't expect the commission to buck the Environment Department. But if the appeal fails, he says, the consequences for New Mexico's water could be huge. Already there are signs that other industries could use the copper rule to seek their own concessions. Just before voting on the copper rule, the commission agreed to consider new industry requests to amend the dairy rule. The amendments could weaken the rule's most significant requirements for monitoring wells and manure lagoon liners. "It's sad," Olson laments. "(Groundwater is) a public resource, and it's almost like we're donating it to the mine as a waste dump."

This story was funded in part by a grant from the McCune Charitable Foundation.

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