TMDL's IN NEW MEXICO: A CASE STUDY IN MANAGING COURT ORDERS, TRIBAL INTERESTS, AND ENDANGERED SPECIES ISSUES IN A DESERT HYDROGRAPH

Like other states, New Mexico is working hard to resolve potentially perplexing issues facing its Total Maximum Daily Load (TMDL) program. A number of issues complicate the state's effort, including: the technical challenges of flow assumptions presented by the arid or semi-arid hydrographic conditions of southwestern water bodies; considerations imposed due to endangered species; special multi-jurisdictional issues raised by the presence of Tribal entities; coordination with review of water quality standards and revisions to the prioritized list of impaired water bodies; and, compliance with a federally enforceable, court ordered timeline. On a practical level, these issues will impact different stakeholders. New Mexico's aggressive timeline for TMDL's is driven by a citizen's suit filed to force their promulgation. The resulting settlement requires TMDL's for all of the state's listed water bodies by 2016. Under the agreements, New Mexico is obligated to finalize over 60 TMDL's within 10 years (2006), and the remainder by 2016. New Mexico's TMDL program has been advancing in coordination with the triennial review of its water quality standards and revisions to its Clean Water Act §303(d) list of impaired water bodies. These processes have not been without controversy. Environmental groups have filed citizen suit notices and actual suits over this process, and the EPA has rejected parts of the State's proposals. The arid, or semiarid environment in New Mexico presents challenges in appropriately assessing stream hydrology for TMDL's. The state is working to address this challenge through technical protocols for calculating critical low flows, and updating stream gauge data.Tribes play an important role in the state's water quality management. New Mexico Tribes and Pueblos exercise jurisdiction over significant stream reaches. In many instances, Tribal water quality standards are much more stringent than state standards. Such jurisdictional matters and differing standards complicate the TMDL process, and its practical application to affected stakeholders. Endangered Species Act (ESA) requirements arguably apply to EPA actions related to New Mexico's TMDL program, such as approval of the 303(d) list. Endangered or threatened species are a determinative factor in how New Mexico prioritizes its 303(d) list. TMDLs will have a real-life impact on New Mexico stakeholders. The form and degree of that impact is the subject of debate. In the Middle Rio Grande, point sources and non-point sources are trying to understand what requirements might result from the recently finalized TMDL for fecal coliforms. NPDES, MS4, and other storm water discharge permit holders in the Middle Rio Grande may soon see stringent BMP requirements or numerical standards in their permits.