Water Quality Protections Advance in New Mexico

In 2023, the United State Supreme Court ruled on the Sackett decision, which drastically narrowed the scope of the federal Clean Water Act and left many waters that were previously covered by the Clean Water Act in the hands of the states. This meant that for certain waters no longer protected federally, permits for discharging pollutants and construction activities in waterways now fall under state jurisdiction (if a state chooses to manage the water quality of its federally-unprotected waterways).  

This decision particularly impacted New Mexico for two reasons: first, the new definition of federally controlled waters only includes about 4% of New Mexico’s waters, leaving 96% unprotected. And second, because most waterways were previously protected by the Clean Water Act, New Mexico did not have a state program in place to permit discharges into waterways. Without a new state program, and without the federal government’s management, nearly all of New Mexico’s waterways would be without protection. Anyone would be able to dump anything they wanted into a wetland without any need for a permit or oversight.  

Thankfully, in 2025 the New Mexico state legislature recognized this risk and passed Senate Bill 21, which created and authorized a state-level discharge permitting program and directed the Water Quality Control Commission (WQCC) to pass regulations to implement it.  

This June, the WQCC held a ten-day hearing to consider a draft rule outlining the program, the levels of different pollutants that may be discharged into different kinds of waterways, and possible amendments to the agency’s initial proposal.  

Audubon joined a small coalition focused on adding some specific additional wildlife protections to the proposed rule. Among other things, we asked that for waterways supporting at-risk species, the New Mexico Environment Department be required to consult with the Department of Wildlife before issuing discharge permits.  

Jon Hayes, Executive Director for Audubon Southwest, served as the expert witness for those requests. For approximately four hours he talked to the Commission about wildlife and wildlife management in New Mexico, and the importance of wetlands and other ephemeral waters for at-risk species.  

We also sent an action alert to our New Mexico membership asking for petition signatures to support the changes we were advocating for. We are proud that more than 400 New Mexicans signed on, and we were able to report that to the Commission.  

The process is paused for now, as testimony has concluded. The Commission will deliberate in November, with the publication of the final rule scheduled for December. We will keep our membership informed of any new developments. Hopefully the final rule will not only set strong standards for pollution discharge into streams and other small waterways, but also specifically include protections for declining wildlife in playas and wetlands.