Senate Judiciary Committee delays votes after sponsors outline plan to assert state Clean Water Act authority and expand protections

Senate Judiciary Committee sponsors of Senate Bills 21 and 22 said the committee would not vote on either bill today and outlined plans to combine the measures into a single substitute that would give New Mexico authority to implement the Federal Clean Water Act and expand state protections for waters not covered after the U.S. Supreme Court’s Sackett decision.

Senator Wendy Wirth, a sponsor, told the committee she would "give the committee assurance we're not gonna act prematurely today" and explained the bills' goals and the process the sponsors proposed: hear testimony, allow members and the public time to review a second committee substitute, and return on Wednesday to present combined substitute language for both bills.

The bills seek to assert state primacy so New Mexico — rather than the U.S. Environmental Protection Agency's Dallas office, which currently handles oversight for the state — would administer permitting, compliance and enforcement under the Federal Clean Water Act. "We are one of only three states now, that don't assert primacy," Wirth said, and she cited the Supreme Court's Sackett decision as narrowing the scope of waters covered by the federal law. Reading from the decision, she said the court adopted a narrow test that applies only to wetlands "as a practical matter indistinguishable from waters of The United States," and added that, in her view, the decision "resulted in about 95% of the water in New Mexico no longer being covered by the Clean Water Act."

Senate Bill 22, as described by Wirth, would address "ephemeral" waters and groundwater: it would enable the Environment Department to regulate intermittent and ephemeral streams no longer covered by the current federal interpretation and would create authority to hold polluters liable for groundwater contamination and soil contamination that threatens groundwater. Wirth said SB22 would also create a new state fund described in the hearing as "in effect, a state super fund," and that the committee would later consider which provisions belong in statute and which should be set by rule.

Wirth walked the committee through a Judiciary Committee substitute to SB21, saying the substitute had been revised substantially from the introduced bill. Changes she named included removing the phrase "produced water" and other language from the pollutant definition to avoid confusion about scope, aligning the bill’s exemptions with those already in the Clean Water Act to preserve the status quo, and adding language that requires the Water Quality Control Commission's rules to include a public notice process "specifically including Indian Nations, Tribes, and Pueblos" — a change she said was made at the request of the Tesuque Pueblo. She also said section 4 was altered to replace the word "pay" with "support" as the committee and later Senate Finance consider how to fund implementation; she noted that 45 of the 47 states use permit fees for funding, though she did not specify a funding proposal.

Committee members and the chair agreed to hear testimony from advocates and opponents under committee rules, but the sponsors emphasized time to review the substitute for SB22, which arrived the morning of the hearing. Wirth said SB21's substitute (committee sub 0.229946 0.4, as she cited) would be reviewed today but that no vote would be taken on SB21 until the combined substitute is ready. The chair confirmed the committee would take up SB22 on Wednesday and then combine SB21 and SB22 into a single Judiciary Committee substitute for consideration.

No formal motions or votes were taken during the portion of the hearing covering SB21 and SB22. The sponsors said the plan is to return midweek with consolidated substitute language for committee action.

The committee hearing continued with other agenda items after the presentation and public registration lists were read; the chair noted several people had registered in opposition and others in support. Wirth indicated experts from the New Mexico Environment Department — Chief Shelly Lemmon of the Surface Water Quality Bureau and General Counsel Zach Ogoz — would provide technical details during the hearing.

The committee is scheduled to resume consideration of these bills when the sponsors present the combined substitute; no enactment, vote tally, funding allocation or final rule text was reported in today's proceeding.