Senate Judiciary reviews bills to assert state Clean Water Act primacy, delays votes

At a Senate Judiciary Committee hearing, lawmakers and New Mexico Environment Department officials reviewed Senate Bill 21 and Senate Bill 22—measures intended to allow New Mexico to assume implementation of the federal Clean Water Act and to expand state oversight to ephemeral streams and groundwater—while committee leaders said they would not take votes at the session.

The bills matter because of a U.S. Supreme Court decision that narrowed the scope of the Clean Water Act; the sponsor told the committee that decision has removed Clean Water Act coverage from roughly 95% of New Mexico’s waters. Senate Bill 21 would assert state primacy for Clean Water Act implementation, and Senate Bill 22 would extend oversight to ephemeral waterways and create authority and funding to address groundwater contamination, including a new state remediation fund described by sponsors as effectively a state “superfund.”

Committee procedure and schedule Committee leaders and the bill sponsor described a two‑step process: each bill currently has a committee substitute, the sponsor said, but the committee will not vote on SB21 during the session and will not take up the substitute for SB22 at this hearing. The sponsor explained the plan is to return on Wednesday with a single combined committee substitute that merges SB21 and SB22 for a future committee vote. The committee chair told members, "I'll give the committee assurance we're not gonna act prematurely today." The sponsor provided the committee substitute identifier for SB21 as "0.229946 0.4," and said SB22 arrived too recently for detailed review.

What the bills would do According to the sponsor and New Mexico Environment Department officials, SB21 is written to allow the New Mexico Environment Department to implement permitting, compliance and enforcement now carried out by the U.S. Environmental Protection Agency. SB22, the sponsor said, has two main prongs: (1) extending state oversight to ephemeral streams and waterways that the sponsor said are no longer covered by the Clean Water Act after the Supreme Court decision and (2) establishing authority to hold polluters responsible for groundwater contamination and clarifying cleanup and financial liability. The sponsor described a new remediation fund to support cleanup work and said some funding and implementation details will be developed in rulemaking.

Key changes in the SB21 substitute The sponsor walked the committee through changes made in the committee substitute to SB21. The substitute removes the phrase "produced water" and other language from the definition of "pollutant," a change the sponsor said was intended to avoid confusion that the bill would be a produced‑water bill. The substitute realigns the bill’s exemptions to track current Clean Water Act exemptions and adds a new subsection directing the Water Quality Control Commission to include a public‑notice process in its rules that explicitly lists Indian Nations, Tribes and Pueblos; the sponsor said that provision was added at the request of the Tesuque Pueblo. The sponsor also noted language edits (the substitute references section and page lines in the bill); the committee substitute adds or changes specific subsections (the sponsor cited section 3, page 5, lines 13–25 and page 6, lines 1–20, and a new subsection B in section 4).

Funding and rulemaking questions Members and the sponsor discussed how the program would be paid for. The sponsor said the substitute changes a word in section 4, subsection C—deleting "pay" and inserting "support"—and acknowledged there will be extensive discussion in Senate Finance about revenue mechanisms. The sponsor noted the bill previously referenced a permit fee, and said many states rely on fees; the substitute wording on payment and fee authority will be part of upcoming deliberations. The sponsor and the committee agreed that some details—what goes in statute versus what will be handled by rule—will be resolved in follow‑up work and rulemaking by the Water Quality Control Commission.

Next steps Committee leaders said the committee will return to consider a combined substitute for SB21 and SB22, with a hearing scheduled to continue deliberation. The sponsor said SB22 will be presented in more detail when members and staff have had time to review the substitute that arrived the morning of the hearing. The committee did not take any votes at the session.