From: Melanie Stansbury

Sent: Monday, August 17, 2020 11:53 AM

To: Martha
CC: Patrick McCarthy; Tashjian, Paul; Steve Harris; Adrian Thomas Oglesby; Mely Whiting; Toner Mitchell;
Rachel.conn@gmail.com; lallison@westernlandownersalliance.org; lawrence@westernlandowners.org;
lamorena@lasacequias.org; Stephanie Anne Russo Baca; Tanya Trujillo; Jackie Corday; Jacquelyn; Nina
Carranco; Erickson, Amy; Calman, Judy
Subject: Re: Rio Unidos Monthly Call

[EXTERNAL]

Hi all,

I won’t be able to join util at least 2.

Here is a list of the policy topics and ideas that we’re working on for discussion:

+++

First, let me say, these are big and multiyear projects. I’d like to try to run something in January or maybe a
few somethings. My current thinking is: (1) at least a toe in the door on water quality —even just some small
piece of authorizing legislation, (2) maybe some water-for-nature fixes, (3) a one-stop shop concept enabling
legislation (even as a budget initiative as language for House Bill 2), (4) *maybe* a Joint Resolution for a
constitutional amendment; and maybe (5) an amendment allowing more severance tax funding to flow to the
Tribal Infrastructure Fund or other funds for tribal and rural water projects. I am also mulling the idea of
running a house memorial directing the agencies to develop the 50 year water plan the executive is talking about
with more guidance and initiating a water reform process. I think these 5ish things are ripe for action and low
hanging enough to get juice now.

The other pieces will need some considerable research and development. If we can pull a good package
together by 2022 we might be able to get it on the call for a 30-day session. I am thinking we would title that
larger package a water grid modernization act, which would be the first of its kind in the nation and give people
something to kind wrap their mind around for context. It’s an idea I’m also working on with a federal policy
initiative to tee up for the next federal administration.

There are seven areas where there seems to be a lot of interest:

1. WOTUS and CWA. We’re discussing with NMED an effort to overhaul the state’s jurisdiction and
permitting authority to address gaps in the new WOTUS rule impacting NM’s ability to regulate water quality
and seeking to provide authority for the state to create a permitting system to assume jurisdictional authority
under the CWA.

2. Reforming the Constitution and subsequently water code. This is a long play project—it will take several
years legislatively. Based on our listening sessions and my conversations with the broader legal and judicial
community I think there is support for amending the constitution to strike the requirement that the State
Engineer be a licensed engineer and update definitions for what our lead water manager is, does, and definitions
of waters themselves and beneficial use. We need some good legal research and help with this. The initial step
will be to pass a Joint Resolution in the House and Senate to put it on the ballot, then we’ll have to go to the
public for a vote, and then some process to define the outcome (see the ethics commission process as a
template). Logistically this is a MINIMUM 2 year process because it takes a ballot measure to amend the
constitution and you need the legislature to provide the authority to get on the ballot. Logistically it’s very
difficult to tee up in one year. In reality it may take a few tries to build and pass the resolution and then go to
the polls. I think a straight definitional change on the ballot could be a hard lift (and unruly for the ballot), but a
process like the ethics commission that establishes the criteria for change, strikes some old language (like the
state engineer requirement), and sets up a process for reform might be the way to go and offer an opportunity to
also initiate comprehensive reform of the water code through a bi-partisan commission. I see amending the
constitution as a necessary condition to foster many other structural problems in the code. I think it is doable if
the process is run appropriately.

3. Fixing funding. There is so much to say here. But, the gist is that we need to work with LFC and DFA to
look across all of the water programs, identify their authorizing legislation and appropriations language,
research other models in other states and countries for water infrastructure planning and funding, identify
federal programs NM qualifies for and help to develop some ideas for restructuring and reforming water
funding. I think we’d be looking to examples like the roads program—which is a pretty disciplined system. The
end goal would be to reform, streamline, and increase the accessibility and efficiency of water funding in the
state.

4. Water-for-nature. There is a lot of interest in figuring out how to make it clearer and more streamlined to
maintain in-stream flows. Some work to identify what legislation and tweaks to the law may be needed would
be super helpful. Also, bigger ideas about water for nature very welcome.

5. Tribal and Community water needs. We have a fairly good start on what our rural water needs are based
on a number of assessments. NMED, the Water Foundation, a group at UNM and others have been thinking
about how to resource a more fulsome assessment to inform how we restructure state technical assistance for
communities. On tribal water needs, we’re looking at initiating a series of conversations with Tribes and tribal
organizations on water priorities and needs. We are discussing with IAD and others.

6. Ground Water and Climate Change. I am aware that there are a number of legal research and drafting
activities going on around ground water protection and consideration of climate change as both conjoined and
separate projects, especially in light of several court decisions. I’m still wrapping my mind around these pieces
and not sure where they fit. If folks have thoughts and feedback, please let me know. Some folks have posed
the idea of passing a more comprehensive groundwater code. This feels like an important idea, but still is in
need of some serious scoping and thought. On climate change, I am of the mind that all of our water
administration and planning must inherently consider climate change, but obviously it does not currently do
so. I am all ears about how to integrate this into statute in a way that can get enacted and meaningfully benefit
the ways we do what we do.

7. Water Conservation and Efficiency. By water conservation, what I mean are programs and incentives to
reduce water use and allow saved water to remain in rivers. Our municipalities are doing pretty good on
conservation. And, there’re some cool pilot projects going in the middle and lower Rio Grande — but it would
be good to think about whether there might be some ways to create, modify, and expand statutes and/or
programs to promote statewide conservation, banking, and reallocation. For example, in the work I did on the
Yakima, we created a federal conservation program wherein the public benefit from public money being spent
on conservation projects on farms and irrigation districts, was a certain percentage of water saved being
required to remain instream.

On Aug 14, 2020, at 9:59 AM, Martha S. Cooper <mschumann@TNC.ORG> wrote:

Hello Folks,

I’m looking forward to a productive call on Monday. Please come prepared to share your thoughts about
how RU works on policy: each individually? Each in small sub-groups? Is everyone coming together to
share a handful of priorities even a possibility? We will also look at Melanie’s ambitious ideas and see
what resonates with people.

Also: please review the attached documents before August 21st, when they will finalized. We have one
other document that a few of us are working on related to wildlife, which is on a slightly longer timeline,
but will need to be reviewed and finalized no later than Sept. 11th.

Agenda:

Policy discussion / Judy et al.

Water Planning / Patrick

Funders Update Prep / Martha et al.

TNC Indigenous People, Land & Communities (IPLC) framework / Martha

Updates

Thanks,

Martha

Below is the invite to our monthly meetings using zoom. Please note, you do not have to use zoom. You can just use
the phone numbers (i-phone or other phone) below if you are not on-line.

Join from PC, Mac, Linux, iOS or Android: https://tnc.zoom.us/j/184893006

Or iPhone one-tap :
US: +16468769923,,184893006# or +16699006833,,184893006#
Or Telephone:
Dial(for higher quality, dial a number based on your current location):
US: +1 646 876 9923 or +1 669 900 6833
Meeting ID: 184 893 006
International numbers available: https://zoom.us/u/abbTntzcvr

Or Skype for Business (Lync):

https://tnc.zoom.us/skype/184893006

<Mail Attachment.ics><Rios Unidos Investment Opportuniteis 7.23.20.docx><Rios Unidos

Investment Spreadsheet 6.18.20.xlsx>
From: Melanie Stansbury
Sent: Tuesday, August 18, 2020 1:51 PM
To: Martha
CC: Patrick McCarthy; Tashjian, Paul; Steve Harris; Adrian Thomas Oglesby; Mely Whiting; Toner Mitchell;
Rachel.conn@gmail.com; lallison@westernlandownersalliance.org; lawrence@westernlandowners.org;
lamorena@lasacequias.org; Stephanie Anne Russo Baca; Tanya Trujillo; Jackie Corday; Jacquelyn; Nina
Carranco; Erickson, Amy; Calman, Judy
Subject: Re: Rio Unidos Monthly Call

[EXTERNAL]

Hi All,

Thanks so much for inviting me to the meeting yesterday. A quick report-out: the baby lizard that strayed into
my house during our chat made it back outside safe and sound. :-)

I very much look forward to your water-for-nature and conservation (and other) policy ideas! We’ll be doing a
policy workshop in the next couple of weeks. You all will be on the invite list!

Also, I am doing some work with WCS, and they are working on a riparian strategy that dovetails very nicely
with Rios Unidos work. If you all are open to it, I would love to introduce their lead Kina Murphy a riparian
ecologist and planner to meet you all and discuss opportunities for collaboration.

Thanks all!

Melanie

On Aug 14, 2020, at 9:59 AM, Martha S. Cooper <mschumann@TNC.ORG> wrote:

Hello Folks,

I’m looking forward to a productive call on Monday. Please come prepared to share your thoughts about
how RU works on policy: each individually? Each in small sub-groups? Is everyone coming together to
share a handful of priorities even a possibility? We will also look at Melanie’s ambitious ideas and see
what resonates with people.

Also: please review the attached documents before August 21st, when they will finalized. We have one
other document that a few of us are working on related to wildlife, which is on a slightly longer timeline,
but will need to be reviewed and finalized no later than Sept. 11th.

Agenda:

Policy discussion / Judy et al.

Water Planning / Patrick

Funders Update Prep / Martha et al.

 TNC Indigenous People, Land & Communities (IPLC) framework / Martha

Updates

Thanks,

Martha

Below is the invite to our monthly meetings using zoom. Please note, you do not have to use zoom. You can just use
the phone numbers (i-phone or other phone) below if you are not on-line.

Join from PC, Mac, Linux, iOS or Android: https://tnc.zoom.us/j/184893006

Or iPhone one-tap :
US: +16468769923,,184893006# or +16699006833,,184893006#
Or Telephone:
Dial(for higher quality, dial a number based on your current location):
US: +1 646 876 9923 or +1 669 900 6833
Meeting ID: 184 893 006
International numbers available: https://zoom.us/u/abbTntzcvr

Or Skype for Business (Lync):

https://tnc.zoom.us/skype/184893006

<Mail Attachment.ics><Rios Unidos Investment Opportuniteis 7.23.20.docx><Rios Unidos

Investment Spreadsheet 6.18.20.xlsx>
From: Stephanie Anne Russo Baca
Sent: Monday, August 31, 2020 4:00 PM
To: Stansbury, Melanie
Subject: Re: Water Leg Meeting Wed 12-1
Attachments: The County of Maui decision confirms the meaning of the Clean Water Act—and the English
language.pdf

Melanie,

I look forward to joining you this Wednesday. I also wanted to share with you this article from today from the
ABA regarding the CWA and the Maui decision in April of this year. I thought it might be useful for future
discussions.

Thanks!

Stephanie

From: Stansbury, Melanie <Melanie.Stansbury@nmlegis.gov>

Sent: Sunday, August 30, 2020 11:10 PM
To: Melanie Stansbury <melaniestansbury@yahoo.com>
Subject: Water Leg Meeting Wed 12-1

[EXTERNAL]
Hi all,

We will be holding our next monthly water policy modernization meeting this Wednesday 9/2 from 12-1pm. The purpose of
these meetings is to discuss and work on legislative ideas to modernize New Mexico’s approaches to water management.

Please join us and feel free to invite others. This week we will do a focused deep dive on policy ideas under three interrelated
topics: Water-for-nature, Water Conservation and Efficiency, Ground Water and Climate Change.

Please come prepared with policy and legislative ideas on these topics to discuss.

We will continue our Deep Dives over the coming weeks on the following topics as well. Stay tuned for these:
-Water Quality (CWA, WOTUS, Agency programs)
-Water Infrastructure planning and funding and One-Stop Shop Technical Assistance Concepts
-Modernizing water authorities in the State Constitution and water code
-Tribal water needs and collaborative opportunities

Meeting info:

Topic: Water Policy Workgroup Meeting

Time: Sep 2, 2020 12:00 PM Mountain Time (US and Canada)

Join Zoom Meeting

https://us02web.zoom.us/j/88295716989?pwd=bk5YejE5VTlTb0tRNDRZZ1hIdEVzZz09

Meeting ID: 882 9571 6989

Passcode: 166131

Talk to you then!

Melanie
8/31/2020 The County of Maui decision confirms the meaning of the Clean Water Act—and the English language

August 31, 2020

The County of Maui decision confirms the

meaning of the Clean Water Act—and the
English language
Shannon M. Arata, Michelle B. Nowlin, and Stephen E. Roady

Share this:

 
On April 23, 2020, in the much-anticipated County of Maui v. Hawaii Wildlife Fund decision, the
U.S. Supreme Court ruled that the Clean Water Act (CWA or Act) requires polluters to obtain
permits whenever their discharges are the “functional equivalent” of direct discharges into the
navigable waters of the United States. County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (Apr.
23, 2020) This ruling confirmed that physically distancing point source pollution discharges from
navigable waters does not automatically preclude permitting agencies from requiring CWA
National Pollutant Discharge Elimination System (NPDES) permits for those discharges. The
decision protects the nation’s waters by carefully following the plain language of the Act.

What happened?

The County of Maui (County) operates a wastewater treatment facility that processes
approximately four million gallons of sewage per day The facility filters and disinfects the sewage
and then pumps the resulting effluent into four injection wells that empty into the groundwater
table. The effluent mixes with groundwater and travels for about one-half mile to the Pacific
Ocean. Government tracer-dye studies confirmed that the effluent emerges at several points along
a near shore coral reef Despite some treatment, the effluent contains high levels of nutrients and
other contaminants that an NPDES permit typically would regulate. Those contaminants have
degraded the reef’s ecosystem.

In 2010, the U.S. Environmental Protection Agency (EPA) informed the County that its effluent
appeared to be discharging into the Pacific and harming the ecosystem. After unsuccessful
negotiations with the County to halt or modify its discharges, environmental groups sued, alleging
that an NPDES permit was required for discharges into the ocean via groundwater.

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8/31/2020 The County of Maui decision confirms the meaning of the Clean Water Act—and the English language

Differing interpretations of the CWA’s plain language

CWA section 301 prohibits point sources from discharging pollutants to navigable waters without
an NPDES permit. Section 502 defines “discharge of a pollutant” as “any addition of any pollutant
to navigable waters from any point source.” Section 502 defines “pollutant” to include “sewage” and
“municipal waste,” and “point source” as “any discernible, confined and discrete conveyance,
including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure . . . from
which pollutants are or may be discharged.”

Respondents and numerous amici (including 37 law professors) argued that the words “to” and
“from” should be interpreted per their ordinary dictionary meanings, and, therefore, concluded
that the County was adding pollutants to a navigable water from a point source by intentionally
pumping effluent into injection wells that connect with groundwater, which then flows into the
ocean. Legislative history and Supreme Court precedent supported this conclusion. As Justice
Antonin Scalia explained in Rapanos v. United States, 547 U.S. 715 (2006), the CWA “does not forbid
the ‘addition of any pollutant directly to navigable waters from any point source,’ but rather the
‘addition of any pollutant to navigable waters.’” 547 U.S. 715, 742 43 (2006). Until April 2019, EPA
agreed.

Nonetheless, the County argued that the meanings of “to” and “from” were ambiguous and that
“discharge of a pollutant” should be read as “any addition of any pollutant directly to navigable
waters from any point source.” Ignoring 40 years of contrary regulatory practice (as well as Justice
Scalia’s admonition), the County argued that failing to read the word “directly” into the statute
would mean that septic tanks located many miles from navigable waters could in theory require
NPDES permits.

But the County’s interpretation meant that any distance between a point source discharge and
navigable waters—be it a millimeter or many miles—precluded NPDES regulation. Under its
theory, no permit was required if a discharge touched groundwater. Therefore, a polluter could
avoid the Act simply by terminating its discharge pipe just short of any navigable water—allowing
pollutants to travel through groundwater, soil, or even the air—before polluting those waters.

The Court thus found itself facing substantially differing interpretations of the Act: the County’s
interpretation that would readily enable avoidance of the Act’s permitting program, or the
Respondents’ interpretation that could, per the County, require NPDES permits for de minimis
sources located any distance away from navigable waters whose pollutants eventually reached

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8/31/2020 The County of Maui decision confirms the meaning of the Clean Water Act—and the English language

those waters The justices, therefore, focused on the question whether the word “from” could be
given a reasonable, commonsense spatial and temporal limit.

The ruling

In a ruling that navigated deftly between the competing interpretations, the Court ruled 6 3 in
favor of the Respondents, agreeing with their reading of the CWA’s plain language and holding that
a permit is required “when there is a direct discharge from a point source into navigable waters or
when there is the functional equivalent of a direct discharge” The Court offered seven factors to
assist regulators in determining whether an indirect discharge is the functional equivalent of a
direct discharge. The Court advised that distance and time are the key factors for permitting
decisions, suggesting that a permit may not be required when a discharge must travel fifty miles
over many years to reach navigable waters

What does it mean?

Put simply, the CWA’s point source discharge provisions retain their force Had the County
prevailed, the Court would have undone decades of regulatory precedent and created a massive
and easily exploitable loophole to avoid CWA regulation. More broadly, the County of Maui
decision supports the proposition that words matter and the public can rely on a statute’s plain
language

Equally important, this decision does not affect groundwater regulation The Court, parties, and
amici all noted that Congress explicitly excluded groundwater standards from the CWA’s purview
and that upholding the CWA’s integrity does not require infringing upon the states’ traditional
regulatory authority.

What’s next?

More litigation, and potentially cleaner water. The Court acknowledged that permitting agencies
now must interpret “functional equivalent of a direct discharge” and implement that
understanding in their own permitting decisions. By extension, dissatisfied parties will have to
challenge agency decisions in court. The U.S. District Court for the District of Hawaii will decide
the County of Maui case on remand. A similar case, Upstate Forever v. Kinder Morgan Ener y
Partners, L.P., has been remanded to the U S Court of Appeals for the Fourth Circuit The lower
courts likely will provide initial guidance on how to implement the County of Maui decision.

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Authors
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American Bar Association |

/content/aba-cms-dotorg/en/groups/environment_energy_resources/publications/trends/2020-2021/september-october-2020/the-county-of-
maui

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