Ephemeral Stream in the Cruces Basin in northern New Mexico. Photo: Jim O’Donnell
The Sackett v EPA US Supreme Court ruling removed protections for the majority of wetlands and streams in New Mexico. Fortunately, state lawmakers passed SB21 in the 2025 legislative session to establish a state-led surface water quality permitting program to safeguard New Mexico waters that lost federal protection from polluting sources.
The constantly changing federal water protections over the past decade has disproportionately impacted New Mexico due to its large percentage of ephemeral/intermittent streams and closed basins (watersheds that do not feed traditional navigable waterways). As one of just three states that did not have a state surface water quality program, he Sackett v EPA ruling on May 25, 2023, left New Mexico without any regulatory authority to manage existing discharges from the wastewater treatment plants, mines, federal facilities, and other polluters that currently discharge into these smaller New Mexico streams.
The Sackett ruling increased vulnerability for ephemeral and intermittent streams (96% of New Mexico’s streams according to the New Mexico Environment Department) and wetlands, which together provide critical wildlife habitat, as well as water sources for drinking water, irrigation, and recreation opportunities.
Was Your Watershed Impacted by the 2023 Sackett v EPA ruling?
Click here to explore an interactive map showing New Mexico waters under threat.
Click here to explore an interactive map that details disturbance activities in New Mexico’s rivers feauring data on 404 permits (dredge and fill permits) and NPDES permits (permits that allow discharges into rivers and streams) and highlights how these locations correspond to water quality impairments. You can also view water quality information based on legislative districts.
Thanks to the Environmental Policy Innovation Center (EPIC), for the development of the wetland water quality map.
A State-led Surface Water Quality Program is a Critical First Step in Safeguarding New Mexico Waters.
Blue areas are unprotected streams and rivers. Click the map for more info.
A surface water quality permitting program will remove the regulatory uncertainty created by unreliable federal protections and secure primacy for regulating discharges to the waters in our state. The people and communities who rely on these waters know best how to protect our state’s waters. Decisions should be made based on the best available data and mapping.
A comprehensive state surface water permitting program will protect both New Mexico’s streams and wetlands, as well as additional resources to protect them in the near-term.
Community voices are needed to help the New Mexico Environment Department draft rules to implement SB21
Communities across New Mexico have a crucial role to play to ensure the protection as the state established a state-led surface water quality permitting program. Critical considerations to ensure the protection of our surface waters must:
- Further develop language that specifically protects all Tribal water quality standards from upstream pollution.
- Include clear and consistent thresholds for when a discharge must be regulated by an individual permit instead of a general permit. These thresholds must protect our more vulnerable and special waterways and ensure that complex projects get proper oversight.
- Include the requirement of avoidance and minimization of impacts as permit conditions for both individual and general permits
- Develop and share program costs and funding options with the public, including how equity will be recognized. We suggest an approach that utilizes reduced costs for wastewater treatment, particularly in small communities, that honors the public good these services provide.
The New Mexico Environment Department is requesting public comment to help them draft the rules to set up New Mexico’s program to both take over permitting for both federally protected waters, as well as those that have lost federal protection.
There are three ways to submit comments by Tuesday, October 28, 2025:
- Use the Public Comment Portal.
- Send your comments to the State Permitting Program via email to swq.pp@env.nm.gov
- Send written comments to the Surface Water Quality Bureau, ATTN: State Permitting Program, P.O. Box 5469, Santa Fe, NM, 87502.
If you’d like to deep deeper into important language considerations for a state surface water permitting program, click this link for: Talking Points for NM Surface Water Quality Permitting Program.
Resources (Click the bold-faced text to open a PDF in a new tab)
- US Supreme Court Sides with Polluters press release
- Protect NM Waters fact sheet