New Mexico Supreme Court Upholds Water Sacrifice Zones
March 9, 2018
SANTA FE, N.M.—The New Mexico Supreme Court issued a stunning and puzzling decision in its long-awaited review of the Copper Rule. The case could set precedent for how the State of New Mexico protects water at all industrial sites.
“We are very disappointed with the New Mexico Supreme Court’s decision today to uphold the Martinez Administration’s rule to weaken New Mexico’s Water Quality Act” stated Allyson Siwik, Executive Director of Silver City-based Gila Resources Information Project.
“The Supreme Court has effectively sanctioned the idea of groundwater sacrifice zones in the area of copper mines. In Grant County, we are 100% dependent upon our groundwater aquifer. Allowing Freeport-McMoRan to pollute rather than prevent groundwater contamination threatens our drinking water supply over the long term.”
The Court’s decision was clearly based on prioritizing copper mining in New Mexico, despite the fact – acknowledged by the industry, the New Mexico Environmental Department (NMED), and the Court – that copper mines will “inevitably” pollute large areas of groundwater that will become increasingly important in our arid climate. This is especially important for dealing with new copper mines where the groundwater is still “pristine”, a term used by the Court. The Copper Rule removes all the water beneath the massive area covered by an open pit mine from any Water Quality Act (WQA) standards. Standards would not apply until water pollution reached the so-called “point of compliance”: monitoring wells set up beyond the mine’s operational area, which can cover many square miles.
“This decision does not recognize the importance of protecting the state’s most important resource – clean water,” said Rachel Conn, Projects Director for Amigos Bravos.
“The Court’s idea of ‘strategic containment’ is in direct opposition to the State Water Quality Act’s purpose of preventing and abating water pollution. It is never a good idea to allow polluters to write their own rules. This decision could pave the way for other polluters to demand similar rollbacks in water quality safeguards and allow the federal labs, wastewater treatment plants, dairies, and other industries to pollute under their sites and further risk groundwater pollution of public water supplies.”
In an IPRA request, NMELC staff attorney Jaimie Park discovered a document labeled “Hit List for Regulation Changes” produced by Ground Water Quality Bureau staff at NMED. In the Hit List, the Copper Rule was cited as a model for how to ease the permitting of polluting facilities and reduce opportunities for public participation.
The NMED repeatedly states that the Copper Rule is one of the most stringent in the country. It is much less stringent than the compromise rule first drafted by NMED technical staff with advice provided by the “Copper Rule Advisory Committee” comprised of industry, environmental organizations, and technical experts. That draft was replaced by NMED management with a version pulled directly from Freeport-McMoRan’s comments. Freeport-McMoRan is the world’s largest publicly-owned copper mining company and operates 3 copper mines in southwestern New Mexico, including the nation’s 4th and 5th largest open pit mines. It was discovered later through an Inspection of Public Records Act (IPRA) request that Freeport-McMoRan had written NMED’s 220-page “Statement of Reasons” adopted by the WQCC when it adopted the Copper Rule. NMED had passed the document off as its own.
Rules are also only as effective as their enforcement. NMED uses a process they call “permit amendments”, which are not required to have public notice or public hearings before they are approved, to make supposedly “minor” changes to mining permits. Based on documents collected through many IPRA requests, amendments have been used to approve clearly significant changes to mine operations and the location of polluting units within the mine.
“The Court’s ruling only heightens our determination to protect New Mexico’s groundwater,” said Douglas Meiklejohn, Executive Director of the New Mexico Environmental Law Center, which is representing GRIP and Amigos Bravos in the case.
“We disagree with the Court on the law, and think that the Court has an unrealistic view of how pollution of groundwater spreads. We are very concerned because groundwater is the most precious resource in New Mexico. The Court made clear that it was considering the Copper Rule on its face and not as it is applied in individual mine permits. We intend to monitor situations in which the Rule is applied to determine whether it violates the Water Quality Act or other statutory provisions.”
- The Gila Resources Information Project (GRIP), based in Silver City near the heart of the state’s copper industry, promotes community health by protecting the environment in southwest New Mexico. www.gilaresources.info
- Amigos Bravos, based in Taos, is a statewide water advocacy organization dedicated to protecting and restoring the waters of New Mexico. www.amigosbravos.org
- In 2009, the New Mexico Legislature mandated the WQCC to specify water discharge regulations for the dairy and copper mining industries that would prevent water pollution and protect water quality.
- In 2012, NMED established the “Copper Rule Advisory Committee”, to advise NMED on the proposed Rule. The NMED Secretary (Ryan Flynn) and upper management stripped the proposed regulations of provisions that would protect water quality and public participation.
- In April 2013, the NMED presented its draft water quality rule for copper mines before the Water Quality Control Commission (WQCC). NMELC and its clients, the New Mexico Attorney General, the former NMED Groundwater Bureau Chief, and others opposed the rules because they violate the WQA.
- In September 2013, the WQCC adopted the Copper Rule.
- On October 8, 2013 the NMELC filed a Notice of Appeal in New Mexico Court of Appeals for its clients.
- On April 8, 2015 the Court of Appeals upheld the WQCC’s adoption of the Copper Rule.