.News Update 1/16/09

WQCC Affirms New Mexico's Authority To Protect All Groundwater

January 16, 2009

The New Mexico Environment Department won an important case decided on Tuesday, January 13th concerning jurisdiction over groundwater protection in New Mexico. Freeport McMoRan Copper & Gold, formerly Phelps Dodge Mining Corporation, a mining company with several mine locations in New Mexico, challenged the Environment Department's authority to protect groundwater beneath the Tyrone mine site, located near Silver City. Freeport McMoRan appealed the groundwater discharge permit, issued by the Environment Department, to the New Mexico Water Quality Control Commission. Freeport argued that groundwater within the permit boundary of their Tyrone mine site, which occupies several thousand acres, was exempt from state protections as long as offsite groundwater was not affected. The permit has been in litigation since 2002.

The Water Quality Control Commission decided in favor of the Environment Department and the Department's mission to protect all groundwater in New Mexico from contamination. Groundwater is an essential natural resource in New Mexico, where about 90% of the 1.8 million residents rely upon groundwater for drinking water. In many areas throughout the state, groundwater is the sole source of potable water. Yet in many places groundwater aquifers are being "mined," as withdrawal of groundwater for drinking water, for irrigation, and for industrial uses exceeds natural recharge.

Groundwater is defined as water that saturates underground areas, filling the spaces between rocks and soil. The motion of groundwater through the earth is a cleansing process that filters most contaminants naturally. However, when contaminants move through soil faster than the natural filtering process can eliminate or reduce them, groundwater becomes polluted. New Mexico's Water Quality Act of 1967 made sure to specifically protect groundwater, which was not included in the protections afforded by the federal Water Pollution Control Act enacted around the same time, nor does the Clean Water Act cover groundwater today. The New Mexico Water Quality Act gives the state the ability to protect its groundwater and the recent decision reaffirms the authority that the state has to protect groundwater at any site that is regulated by the state, including dairies, national laboratories and mines.

In its decision, the Commission found that the Environment Department had demonstrated by a preponderance of the evidence that the Tyrone mine site is a place where groundwater might be used at present or in the future, within the meaning of the statute. In determining whether groundwater might be used in the future, the Commission ruled that it was appropriate to look at least 100 years into the future. The Commission also ruled that the use or application of controls to restrict access to groundwater and thus conclude that the water will not have a future use is "contrary to the Act."

New Mexico Environment Department Secretary Ron Curry praised the decision and its importance in keeping New Mexico's water safe. "The Commission upheld the Department's longstanding position that in an arid state like New Mexico - where we derive 90 percent of our drinking water from groundwater - all aquifers must be protected. The commission re-established the state's right to protect water quality and all groundwater now and for future generations."

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