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committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

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F I S C A L I M P A C T R E P O R T

SPONSOR Komadina

ORIGINAL DATE

LAST UPDATED

2/01/08

2/04/08 HB

SHORT TITLE Defeat Federal Clean Water Restoration Act

SM 46

ANALYST Padilla/Aubel

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY08

FY09

FY10 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$1,900.00* $1,900.00* $3,800.00* Recurring

See

narrative

(Parenthesis ( ) Indicate Expenditure Decreases)

*Potential

Note: The original FIR has been substantially updated to incorporate comments from New Mexico

Environment Department, which had not been available.

SOURCES OF INFORMATION

LFC Files

Response Received From

New Mexico Environment Department (NMED)

SUMMARY

Synopsis of Bill

Senate Memorial 46 requests that Congress defeat United States H.R. 2421 and United States S.

1870, the Clean Water Restoration Act (CWRA). SM 46 further proposes New Mexico

Representative Tom Udall be requested to withdraw his support for this Act. Copies of this

Memorial are to be transmitted to the New Mexico Congressional Delegation, to the Speaker of

the United States House of Representatives and to the majority and minority leaders of the

United States Senate.

FISCAL IMPLICATIONS

SM 46 notes several potential fiscal impacts to the state if CWRA is enacted, including unfunded

mandates, increased costs for building and maintaining transportation systems, administrative

burdens, and delayed development of new projects and maintenance of existing infrastructure.

However, these fiscal concerns were not quantified and remain unknown.

NMED notes that for the past three decades the U.S. Environmental Protection Agency (EPA)

Senate Memorial 46 – Page

2

has administered the National Pollutant Discharge Elimination System (NPDES) program in

New Mexico at little cost to the state. The New Mexico Environment Department maintains this

would continue under the CWRA.

However, the department states that if the CWRA is not implemented and the state must develop

a surface water quality protection program to ensure continued protection of its waters, costs

have been estimated at $1.9 million. Although NMED is funded from other state funds and

federal funds in addition to general fund, most of the burden for funding this program would

most likely fall on the general fund because the agency already utilizes most of its special funds

and federal dollars have been declining the last few years except in limited circumstances.

This potential fiscal impact is based on the assumption that only about 10 percent of New

Mexico’s surface waters would be protected by federal definition of “water" without the

enactment of CWRA and, therefore, under the auspices of the EPA. In May 2007 the state Court

of appeals unanimously confirmed a state Water Quality Control Commission’s decision that all

of New Mexico’s waters are subject to federal water quality standards, regardless of how the

federal government defined those waters. Thus, NMED assumes that the state would need to

implement its own NPDES program.

SIGNIFICANT ISSUES

The U.S. Environmental Protection Agency (EPA) provides the following brief history of the

Clean Water Act:

Growing public awareness and concern for controlling water pollution led to enactment

of the Federal Water Pollution Control Act Amendments of 1972. As amended in 1977,

this law became commonly known as the Clean Water Act. The Act established the basic

structure for regulating discharges of pollutants into the waters of the United States. It

gave EPA the authority to implement pollution control programs such as setting

wastewater standards for industry. The Clean Water Act also continued requirements to

set water quality standards for all contaminants in surface waters. The Act made it

unlawful for any person to discharge any pollutant from a point source into navigable

waters, unless a permit was obtained under its provisions. It also funded the construction

of sewage treatment plants under the construction grants program and recognized the

need for planning to address the critical problems posed by nonpoint source pollution.

Subsequent enactments modified some of the earlier Clean Water Act provisions. Recent

Supreme Court rulings have also modified the application of the Act by defining “waters"

covered under the Act to those that only fall under federal jurisdiction based on navigability.

According to the New Mexico Environment Department, pprior to the Supreme Court’s 2001

ruling in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531

U.S. 159 (2001) (SWANCC) and its 2006 ruling Rapanos v. United States, 547 U.S. __, 126 S.Ct.

2208 (Rapanos), EPA and the U.S. Corps of Engineers construed the term “waters of the United

States" to include all waters that have been used, or are susceptible to use in interstate or foreign

commerce, all interstate waters, including interstate wetlands; all waters the degradation of

which could affect interstate commerce; tributaries of all such waters; and wetlands adjacent to

all such waters.

Senate Memorial 46 – Page

3

The Clean Water Restoration Act is federal legislation that has been submitted as U.S. House of

Representatives 2421 (HR 2421) and in the Senate as Senate 1870 (S 1870), promoted as a

means of restoring protections of surface water to align with this original interpretation. The

primary issue is how the federal legislation, if enacted, would affect new Mexico.

SM 46 maintains that the Clean Water Restoration Act would have the following effects:

•

The Federal Clean Water Act amendments contained in the United States H.R. 2421, co-

sponsored by Congressman Tom Udall and Representative Oberstar (D-Minnesota)

proposes to give the federal government control over virtually all waters of the United

States including expansion of the federal government’s control over western water

resources to such an extent that, even periodically, wet ground would come under federal

hegemony.

•

Furthermore, the Memorial maintains that HR 2421 represents one of the most expansive

power grabs over western states and the west’s resources in memory, fundamentally

eroding the ability of westerners, and state governments in particular, to manage their

own water resources and cause an avalanche of new unfunded mandates o envelop stat

and local governments.

•

SM 46 also suggests that the bill will make more costly to grow crops, provide water to

cities, operate and maintain water storage and delivery facilities, produce energy,

including renewable power, build and maintain public transportation systems, deliver

affordable goods and services to consumers and carry out virtually any activity that

occurs on land without federal agencies constantly threatening to interfere.

HM 46 concludes:

•

The bills’ sponsors contend that United States water are threatened due to United States

Supreme Court decisions in 2001 and 2006, which clarified the waters that fall under

federal jurisdiction to include those

•

By changing the Federal Clean Water Act’s jurisdictional sweep from regulation of

“navigable waters" to “waters of the United States," the bill would have a devastating

impact on western states’ sovereignty by expanding the regulatory reach of the Federal

Environmental Protection Agency and the Army Corps of Engineers;

•

Essentially grant the Federal Environmental Protection Agency and the Army Corps of

Engineers a veto over local land-use policies and any activity involving water, including

commercial and residential real estate development, agriculture, electric transmission,

transportation, mining and energy development and even recreational activities.

•

There is virtually no business or job-creating activity in the west that would not be

adversely affected by this bill.

•

Under this legislation, liability for citizen lawsuits and exposure to attorney-fee awards

would increase for all landowners who have water features on or near their properties.

According to the Department of Environment, the Clean Water Restoration Act (CWRA) only

restores protections that have been in place since the 1970s. The department maintains that its

purpose is “to reaffirm the original intent of Congress in enacting the Federal Water Pollution

Control Act Amendments of 1972…to restore and maintain the chemical, physical, and

biological integrity of the waters of the United States." Furthermore, the department concludes

as follows:

Senate Memorial 46 – Page

4

•

The proposed legislation directly affirms each state’s responsibility and right to prevent,

reduce, and eliminate pollution of waters.

•

The CWRA simply restores protections that were in place for three decades during which

time the quality of America’s rivers, lakes, wetlands and streams improved dramatically.

•

If the protections previously afforded by the Clean Water Act are not restored, through

the CWRA, then New Mexico could lose protection for more than 90% of its waters, such

as such as closed basin waters, playa lakes, wetlands and non-perennial streams.

OTHER SUBSTANTIVE ISSUES

NMED provides additional background information regarding New Mexico water and possible

implications for not supporting CWRA:

Waters within closed basins cover up to one-fifth of New Mexico might be vulnerable to

pollution. Closed basins include perennial and non-perennial streams that provide water for

municipal, industrial, agricultural (irrigation and livestock watering), recreation, and wildlife

uses. Such basins include the Tularosa, Mimbres, San Augustine, Estancia and Salt in central,

south central and southwestern New Mexico. The water beneath just one of these basins – the

Salt – has been estimated by the U.S. Geologic Survey to contain as much as 57 million acre feet

of water, including 15 million that is potable. According to NMED, this could prove to be a vital,

and needed, future water supply for the rapidly growing City of Las Cruces in southern New

Mexico. However, according to NMED, if this aquifer is allowed to be polluted by surface

dumping, its benefits for future New Mexicans will be severely curtailed. NMED notes that

SWANCC and Rapanos also would apply to thousands of playa lakes, headwaters, springs,

cienegas and wetlands that would not be covered by federal standards.

NMED provides three examples where it claims CWRA may be vital:

In the southeastern part of New Mexico there are many economically and ecologically

valuable playa lakes that are isolated from navigable waters, which nevertheless serve as

critical oasis-like over-wintering habitat for migratory birds within the important Central

Flyway. In particular, these waters provide habitat for the Northern Pintail which is a

highest priority waterfowl species according to the North American Waterfowl

Management Plan (USFWS et al, 2004), and for 15 priority species of shorebirds listed in

the US Shorebird Conservation Plan for the Central Plains /Playa Lakes (Fellows et. al,

2001). These playas are also used by other wildlife such as pronghorn antelope, for

irrigation and livestock watering, and provide recreational opportunities such as hunting

and bird watching. Without the CWRA, these waters could be destroyed by development

without a Clean Water Act Dredge or Fill permit, or could receive unlimited pollutant

discharges without a NPDES permit.

Another example involves the non-perennial streams that receive stormwater and

wastewater discharges from the Los Alamos National Laboratory. The laboratory

encompasses thousands of sites contaminated by cold war legacy pollutants. If these

streams lose protection they could become inundated with contaminated runoff from

industrial facilities and process wastewater. In this example, the lab is up-gradient of the

major cities of Santa Fe and Albuquerque, which are currently developing multimillion

dollar facilities to directly access the surface water resources of the Rio Grande for

drinking water supplies necessary to ensure the region’s economic growth.

Senate Memorial 46 – Page

5

Finally, on the eastern high plains where surface water is even scarce by New Mexico

standards and thus even more critical to economic and biological concerns of the region,

Canon Air Force Base has requested the cancellation of its NPDES permit even though it

intends to continue discharging pollutants to a playa lake.

NMED concludes as follows:

The CWRA solves these problems by replacing the term “navigable waters of the United

States" with "waters of the United States." This fix simply restores protections that were

in place for three decades during which time the quality of America’s rivers, lakes,

wetlands and streams improved dramatically. It also restores Congress’ original intent

when it passed the Clean Water Act in 1972, to protect our nation’s water resources for

future generations.

PERFORMANCE IMPLICATIONS

NMED maintains that if the long term protections of the Clean Water Act are not restored, New

Mexico would most likely see an increase in miles of impaired waters, which would negatively

impact one of the department’s performance measures.

ADMINISTRATIVE IMPLICATIONS

As discussed under fiscal implications, NMED states that if the CWRA is not implemented, the

state will have to invest significant resources to protect the quality of its waters without federal

financial support. As previously noted, SM 46 sees greater unfunded federal mandates and

administrative burden to the state if the legislation passes.

ALTERNATIVES

Rather than wholesale opposition to the CWRA, NMED suggests that New Mexico could request

that the proposed federal legislation be amended as necessary to ensure preservation of the

state’s traditional powers over our groundwater resources.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

SM 46 maintains that the consequences of not enacting this bill will result in the federal

government’s control over western water resources resulting in federal hegemony and the state’s

loss of sovereignty over pertinent water issues in New Mexico, including other states within the

nation. NMED maintains that New Mexico will not interfere with federal efforts to protect state

waters.

JRP:MA/bb