State at odds with feds over stream rule

James Fenton

FARMINGTON — As the U.S. Office of Surface Mining Reclamation and Enforcement is in the final stages of updating a more than three-decades-old rule aimed at protecting waterways from coal mine pollution, state officials have complained about the input process over the proposed rule changes.

Secretary F. David Martin — head of New Mexico's Energy, Minerals and Natural Resources Department — voiced his complaints to OSMRE in a Feb. 20 letter, withdrawing the state of New Mexico as a cooperating agency from official participation in the rule update process.

The Animas River flows is seen near County Road 350 on Wednesday in Flora Vista.

Martin said that over the course of the multiyear draft process that informs the rule changes, OSMRE did not provide agencies with a reasonable amount of time to provide input on the rule's draft environmental impact statement. Martin also expressed concerns over the "quality, completeness and accuracy" of the EIS, as well as additional opportunities to provide comments on the statement.

"Unfortunately, the absence of meaningful opportunities for EMNRD to participate in the EIS process has frustrated the purpose of the MOU and has undermined NMNRD’s status as a cooperating agency," Martin wrote in the letter.

A letter from OSMRE Director Joseph Pizarchik in response to Martin's letter in February arrived Oct. 16, eight months later. In it, Pizarchik asked that Martin reconsider the state's withdrawal as a participating agency.

"OSMRE has worked diligently to consider and incorporate your agency’s comments and those of other cooperating agencies as it prepared the draft EIS that was released to the public in July 2015. As you review (it), we hope that you recognize your agency’s prior, valuable contributions to the document," Pizarchik wrote.

The proposed stream rule, Pizarchik said in a phone interview, will include new advances in science and would better protect streams, fish and wildlife. The regulations would better mitigate the impacts of surface coal mining operations, giving mine operators with "a regulatory framework to avoid water pollution and the long-term costs associated with water treatment." Among its changes, the proposed rule would also add more monitoring requirements to companies to allow for timely detection of impacts to water quality.

Pizarchik praised the Gov. Susana Martinez and the state for its "collaborative partnership," but, according to Michael Lonergan, spokesman for the governor, that sentiment is largely one sided.

"It’s unfortunate that OSMRE is mischaracterizing the situation," Lonergan said in an email on Friday. "The letter EMNRD received from OSMRE today shows that the director’s claim is regrettably false. New Mexico would like to participate in a process that is truly a partnership, and we stand ready to do so. That would require OSMRE to be more receptive and give states more time to provide constructive feedback."

The public comment period on the proposed rule, draft EIS, and draft regulatory impact analysis closes Oct. 26.

Public input can be sent to the OSMRE by going to

James Fenton is the business editor of The Daily Times. He can be reached at 505-564-4621.