Senate committee hears hours of testimony on SB21 to move Clean Water Act permitting to state control

Senate Conservation Committee members heard more than three hours of testimony and debate on SB21, a bill that would transfer state primacy for surface-water permitting from the U.S. Environmental Protection Agency to the New Mexico Environment Department and set up a state-administered permit fee structure.

Supporters, including state agency officials and environmental organizations, said the bill would let New Mexico regulators issue permits locally for waters that remain covered under the Clean Water Act and provide consistent oversight during drought conditions. Tanya Trujillo, deputy state engineer in the Office of the State Engineer, told the committee, “This surface water protection program will be essential for communities throughout the state, especially now considering the historic drought conditions that we are seeing.”

Backers argued SB21 keeps existing federal exemptions and largely mirrors federal definitions. Rachel Khan, deputy director of Amigos Bravos, said SB21 “lays the foundation in statute for the state to take over permitting from the federal government for waters that remain federally protected.” Proponents also noted the sponsor removed a proposed state private right of action from the substitute and added public‑reporting and public‑comment provisions on settlements to align with EPA primacy requirements.

Opponents — representing ranchers, municipalities, mining, construction, agriculture and chambers of commerce — focused on implementation and enforcement risks. Tom Patterson, president‑elect of the New Mexico Cattle Growers Association, asked the committee to add agricultural exemptions the group said were promised. Liz Newland Taylor, director at the Albuquerque Metropolitan Arroyo Flood Control Authority, said an amendment that allows the regional EPA director to object to permits could leave states without meaningful control. Dalen Uhlenberg, chair of the New Mexico Mining Association’s environment committee, and Jason Espinosa of the Associated General Contractors warned the bill’s criminal and civil enforcement language could be broader than federal practice.

Committee members pressed sponsors and agency staff on several recurring topics: whether the bill truly tracks “status quo” federal authorities; how the statute defines “pollutant”; which agricultural discharges are exempt; whether municipalities will now pay fees they do not pay under current federal permits; and the Environment Department’s capacity to staff and run a program that could cover thousands of permits. Shelley Lemon, surface water quality bureau chief for the New Mexico Environment Department, confirmed the bill’s pollutant definition aligns with federal regulations and that the department is seeking to take over the existing National Pollutant Discharge Elimination System (NPDES) program.

Zach O’Brien, general counsel for NMED, told senators the bill includes language directing consideration of the seriousness of a violation and any economic benefit when assessing enforcement, and that criminal prosecutions would remain the province of prosecutors rather than the department. Committee members repeatedly requested redline versions of the substitute and the companion SB22 before further action.

Senator Wirth, the sponsor, moved a committee substitute procedure to bring the substitute into formal consideration and to refer the substitute to Senate Judiciary for discussion; the committee did not take a final vote on SB21 and the hearing was continued to a later date to allow more review and a redlined draft.

The extensive testimony highlighted major tradeoffs: proponents want local control and continuity for permitting; opponents fear new costs, unclear fee structures, expanded enforcement exposures and staffing gaps at NMED. Committee members said they would ask for a redline and additional details on fees, exemptions and criminal language before acting again.