Citing Sackett v. U.S., New Mexico Developing NPDES Permit Program Covering Both Federal and State Waters

In Sackett v. Environmental Protection Agency, the U.S. Supreme Court held that Clean Water Act-regulated “waters of the United States” (“WOTUS”) are limited to relatively permanent bodies of water connected to traditional interstate navigable waters. With respect to wetlands, WOTUS must have a “continuous surface connection” to lakes or rivers that affect interstate commerce. The USEPA and Corps of Engineers NPDES permitting programs now incorporate the jurisdictional limits established by the Sackett Court’s decision. However, several states realized that the Sackett-defined WOTUS may leave waters within the states open to unregulated discharges and filling activities.

New Mexico, like many other states, defines its water quality authority as broader than the definition of “waters of the United States.” New Mexico, however, is also one of a handful of states that have not yet been delegated authority to issue NPDES permits under the Clean Water Act (“CWA”). New Mexico is now seeking authority under the CWA to create and substitute a state NPDES permit program in lieu of a federal program run by the EPA. The New Mexico Environment Department’s (NMED) website makes clear that the state intends to regulate waters eliminated from federal jurisdiction – stating that many surface waters of New Mexico are now “at risk of contamination and degradation” due to the Sackett definition. The NMED announcement emphasizes two components of the proposed state permitting program:

1. Delegation to implement the NPDES program that controls the discharge of pollutants into Waters of the United States covered by the federal Clean Water Act; and
2. A new state permitting program to fill the gaps left by the U.S. Supreme Court’s decision in Sackett v. EPA and control the discharge of pollutants, including dredged and fill materials, into surface waters of the state, under the authority of the New Mexico Water Quality Act.

The NMED projected timeline for creation of an NMED NPDES program includes a Spring 2025 state legislative authorization of an NMED application for NPDES delegation, together with amendments to the New Mexico Water Quality Act, to support the program. Draft rules to implement the program will be made available for public comment in Summer 2025. The state anticipates that it will hold a public hearing on proposed rules and begin rollout of the permitting program for state surface waters in 2027.

Stakeholders in NMED Program Delegation: Who Should Be Concerned?

Implementation of an NMPDES program will have significant implications for both current EPA-regulated facilities and facilities that discharge to waters of the state that do not fall within federal CWA jurisdiction.

Many New Mexico facilities may be required to obtain a water discharge permit for the first time. The 2025—2027 New Mexico program delegation and rulemaking process will determine future permitting processes and substantive permit requirements for approximately 4,000 New Mexico NPDES permittees. The NMED-administered permit program will include state-specific requirements for individual and municipal stormwater discharges as well as industrial wastewater and dredge and fill permitting.

NMED recently issued an online survey to “better understand stakeholders’ perspectives, concerns, and questions about the idea of a state-led permitting program for surface waters.” The results of the survey are available on its website. NMED has also created a Surface Water Advisory Panel (SWAP) to provide technical information, practical considerations, and policy perspectives. The SWAP identified key areas where permittees’ and potential permittees’ input will be vital during the formative stages of the New Mexico program, including:

• How regulated waters will be defined
• How to provide clarity to regulated entities and members of the public
• Public engagement and program transparency
• Operational flexibility for specific sectors
• Sustainable funding for the program
• Permitting of discharges of dredged and fill material
• Special challenges of permitting in arid environments

FAQs on the Surface Water Quality Permitting Program can be found here, and stakeholders and invested members of the public can sign up for email updates on the program by emailing a request to swq.pp@env.nm.gov.

Clark Hill supports clients with active NPDES permits and has represented stakeholders participating in State program rulemaking comment periods, hearings, and litigation challenging agency rules and permit terms. Facilities that seek to become permitted dischargers and those who may be impacted by New Mexico’s intended State Permitting Program should engage early in the state’s processes to ensure that their concerns are heard as New Mexico develops its NMPDES program.

If you have questions or would like to discuss, please contact the authors of this article, or any of the Clark Hill EENR team members listed here – Environmental & Natural Resources | Industries & Practices | Clark Hill PLC.

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