Senate committee hears hours of testimony on SB21 to take surface‑water permitting statewide; vote postponed

Senate Judiciary Committee members spent more than three hours on SB21 on a substitute that would transfer the federal National Pollutant Discharge Elimination System (NPDES) permitting program for surface waters to the New Mexico Environment Department (NMED). Sponsor Senator Wirth and state water officials said the move will return permitting decisions to New Mexicans; farmers, local governments and industry groups warned the measure could impose new fees, expand enforcement powers and strain agency capacity.

The bill matters because the U.S. Supreme Court’s recent narrowing of federal jurisdiction left roughly 95% of New Mexico’s waters without the federal permitting regime they had been covered by for decades. SB21 would seek federal “primacy” for a state‑run permit program under the Clean Water Act and create funding and enforcement tools to carry it out, including a permit fee structure and state enforcement authorities.

Under the committee substitute, the draft no longer creates a state private right of action; instead it requires NMED to encourage public reporting of violations, investigate complaints and allow public comment on proposed settlements. The substitute also clarifies that the attorney general would have authority to pursue criminal enforcement, aligns mens rea for felony violations with the New Mexico Water Quality Act and applies a “knowingly” standard for felony conduct. The department and sponsor told the committee those changes were made after negotiation with stakeholders and legal review.

Supporters argued the program would let New Mexico tailor permits to local conditions and tribes and protect shrinking surface waters. Tanya Trujillo, deputy state engineer with the Office of the State Engineer, said: “This surface water protection program will be essential for communities throughout the state, especially now considering the historic drought conditions that we are seeing.” She pointed to the Upper Rio Grande Basin snowpack report, which the department described in committee as about 12% of historic average that morning.

Environmental and community groups including Amigos Bravos, Trout Unlimited, Sierra Club, Western Resource Advocates and others filed written support and sent speakers. Rachel Khan, deputy director of Amigos Bravos, told the committee SB21 “lays the foundation in statute for the state to take over permitting from the federal government for waters that remain federally protected” and argued a state program creates more local opportunities for tailored solutions.

Opponents — ranging from livestock and dairy producer groups to municipal and construction associations and mining interests — focused on implementation concerns. Tom Patterson, a Catron County rancher and president‑elect of the New Mexico Cattle Growers Association, urged the committee to restore agricultural exemptions he said were promised and warned the bill could subject ordinary farm practices to permitting. Liz Newland Taylor, a water lawyer and AMAFCA director, warned of legal uncertainty if the federal regional administrator retains a written objection power and raised questions about how permits would be issued where water quality standards are already exceeded.

Several speakers highlighted funding and staffing. Industry and local government witnesses said many small municipalities currently pay no federal permit fees and could face new costs under a state fee structure. Multiple witnesses and committee members asked how NMED will staff an estimated 50–60 full‑time equivalents the sponsor said might be needed; department officials said recent legislative funding reduced agency vacancy rates and they expect to hire if appropriations follow.

Committee members also pressed technical questions. Senator O’Malley asked whether the substitute preserves the federal list of pollutants and whether the statute would regulate produced water; NMED witnesses said pollutant definitions align with the federal definition in 40 C.F.R. and that produced‑water regulation is handled separately from this bill. Zach O’Brien, general counsel for NMED, described the inclusion of language requiring consideration of the seriousness of a violation and any economic benefit when setting penalties as intended to tailor enforcement to the offense.

Concerns about enforcement authority and access to private property were raised repeatedly. Opponents warned the bill’s criminal provisions — which allow fines and felony penalties for some violations and apply a “knowingly” standard to felony violations — are broader than they expect for a delegated program. NMED witnesses said the agency does not itself prosecute criminal cases but would coordinate with the attorney general’s office and local district attorneys.

The sponsor, Senator Wirth, said the substitute was drafted to meet the federal primacy requirements that a state either provide a private right of action or robust public participation mechanisms; the private right of action was removed and replaced with the public‑reporting and settlement‑comment provisions to preserve eligibility for primacy. He also noted the substitute contains language mirroring federal requirements in areas such as permit‑issuance objection procedures by the EPA regional administrator and access for inspections.

Motion and next steps: A senator moved a committee substitute and a separate motion described on the record as “do not pass on Senate Bill 21 and do pass on Senate Judiciary committee substitute for discussion purposes.” The committee did not take a final vote on SB21 that day and the chair said the item would be rolled over for continued consideration on Wednesday; no final enactment or defeat occurred in the hearing.

Key details and outstanding issues include: how the state will set fees and whether fees will be allowed to cross‑subsidize other functions; whether specific agricultural exemptions will be added (some exemptions in SB22 were noted as distinct); how criminal terms such as “substantial adverse environmental impact” will be defined in enforcement practice; and whether the federal regional administrator’s written objection procedure effectively leaves a federal veto in place. Several Committee members asked staff for red‑lined comparisons of the substitute to the earlier drafts and to the federal provisions to aid review.

The hearing drew dozens of proponents and opponents, including tribal representatives and statewide environmental organizations on the pro side and agricultural, municipal and extractive‑industry groups on the con side. The senator sponsoring the bill said SB21 will next be considered by Senate Finance for budget and fee questions, and the Judiciary Committee scheduled further work on the substitute.

Votes at the hearing: no final committee vote on SB21; motion to continue/roll over to future hearing was adopted informally by the chair’s scheduling direction.