By Susan Montoya Bryan
New Mexico regulators listened to testimony Thursday from an environmental group that wants more protections than what state officials are proposing for headwater streams, lakes and wetlands across the state, while critics continued to hold out hope for intervention from the state's highest court.
The New Mexico Supreme Court cleared the way for the hearing to begin in Santa Fe earlier this week. But an attorney for the New Mexico Cattle Growers' Association said the court has yet to issue a final ruling on whether the state Environment Department's petition to designate the streams and lakes in a dozen wilderness areas as "outstanding national resource waters" meets regulations.
The court struck down a temporary restraining order so the hearing could begin, but it also requested the ranchers' group to file a response by Sept. 24.
Dan Dolan, an Albuquerque attorney who represents the group, told The Associated Press during a break in the hearing that he hopes the court's action means it will take a closer look at the state's proposal.
"It has been a moving target. They've changed it three separate times," Dolan said, adding that the public has not been given an adequate chance to comment on the latest version of the petition.
Supporters said they don't expect the court to interrupt the ongoing proceedings.
"I highly doubt that the Supreme Court would condone an attempt by a disgruntled party to silence the public's right to speak out in favor of clean water before an agency has even reached a decision. That would be quite the injustice," said Erik Schlenker-Goodrich of the Western Environmental Law Center.
The Richardson administration began pushing an outstanding waters designation in 2008. It would protect streams, lakes and wetlands by prohibiting any activities that would degrade water quality.
The first plan called for protecting all waters — even those that flow intermittently — in wilderness and roadless areas around the state. That was scaled back after concerns were raised during 11 public meetings and after state lawmakers came out in opposition.
More changes were made after a second round of public meetings last fall, and it wasn't until May that the state presented its final petition to the Water Quality Control Commission.
State officials testified this week that they have tried to address the public's concerns — including those of the ranchers' group and some water associations — and that development of the petition has been the most extensive public participation process the department has under taken for any water quality initiative.
Sen. Phil Griego, D-San Jose, accused the department of going against the Legislature's intention by proceeding with the petition. More public meetings need to be held and the commission, which is appointed by the governor, should not be making decisions that have the potential to impact so many of the state's residents, he said.
"That's not right. The Legislature is the one that's empowered to do that type of stuff," Griego said.
The group WildEarth Guardians asked the commission Thursday to go beyond what the state was proposing and approve an amendment that would add 450,000 acres of adjacent roadless areas to the outstanding waters designation. The group contends those lands are also ecologically important.
The state's petition calls for designating as outstanding about 700 miles of rivers and streams, 29 lakes and more than 4,900 acres of wetlands in a dozen wilderness areas. The amendment would add another 800 miles of waterways.
Critics argued that the proposal is already too broad and that waters should be considered on an individual basis.
Dolan was also concerned about a letter sent to the commission by U.S. Forest Service regional officials days before the hearing said it was changing its position and would not be opposing the petition after all. The agency — which would be responsible for managing the headwaters under an outstanding designation — earlier questioned the accuracy of the state's maps and lack of water quality data for many of the nominated waters.
The Forest Service declined to immediately comment on the letter.
Dolan said ranchers and others who have Forest Service permits need to know how the agency plans to implement management practices in wilderness areas before an outstanding waters designation is approved.
"The cattle growers are not saying that we don't believe ONRW has value. What we're really saying is that we don't believe interjecting the U.S. Forest Service in this process makes a lot of sense," he said. "This could have a critical impact on a lot of livelihoods."