Sarah Gilman, left, and Liza Suzanne cross Tesuque Creek while hiking in June. "There are other facilities that are permitted using this exact statutory framework, so this isn't just a Bishop's Lodge-Tesuque issue," said Senate Majority Leader Peter Wirth, D-Santa Fe, of Protect Tesque's petition to the Supreme Court to halt a wastewater permit for the nearby Bishop's Lodge."If the court were to change the statute, it's going to have impacts throughout the state."
L.P. How, back, and Eileen Berry ride their mountain bikes over Tesuque Creek in June. The new leach field at Bishop's Lodge can treat wastewater to a “much better” quality than the facility's aging plant, according to a document prepared by the Environment Department. Treated water will be used for irrigation on the property during parts of the year.
Sarah Gilman, left, and Liza Suzanne cross Tesuque Creek while hiking in June. "There are other facilities that are permitted using this exact statutory framework, so this isn't just a Bishop's Lodge-Tesuque issue," said Senate Majority Leader Peter Wirth, D-Santa Fe, of Protect Tesque's petition to the Supreme Court to halt a wastewater permit for the nearby Bishop's Lodge."If the court were to change the statute, it's going to have impacts throughout the state."
L.P. How, back, and Eileen Berry ride their mountain bikes over Tesuque Creek in June. The new leach field at Bishop's Lodge can treat wastewater to a “much better” quality than the facility's aging plant, according to a document prepared by the Environment Department. Treated water will be used for irrigation on the property during parts of the year.
An organization fighting Bishop Lodge's wastewater plans is petitioning the New Mexico Supreme Court to halt a permit for the luxury resort, posing a legal question that could have implications for other groundwater discharge permits in the state.
It is unclear what action the court will take on Protect Tesuque's petition, but Wednesday it issued an order giving the state Environment Department and Bishop's Lodge until May 19 to file a response. A public hearing on the lodge’s draft permit, requested by members of the Tesuque community, is also scheduled for the week of May 19.
Bishop's Lodge has built an on-site leach field and new treatment plant on its property to discharge treated wastewater. But the plan has drawn sustained pushback from residents concerned about the proximity of the new leach field to Little Tesuque Creek, leading the neighborhood group to challenge the lodge's permit application, which seeks to increase its discharge limits on the property.
The petition, filed recently after a hearing officer rejected Protect Tesuque's challenge to the permit, asks the Environment Department to apply the state’s liquid waste regulations, rather than the ground and surface water protections, arguing the latter are less rigorous than the former.
"Clearly, there is an ongoing dispute over the statutory construction and the way the Environment Department has interpreted the statute for many years," said state Senate Majority Leader Peter Wirth, D-Santa Fe. "I'm encouraged that Protect Tesuque has gone straight to the state Supreme Court and I'm hopeful the court will take the case and provide some direction."
Wirth has an interest in water issues: This year he sponsored Senate Bill 21, now law, which allows for the state to take over administration of National Pollutant Discharge Elimination System permits from the federal Environmental Protection Agency and creates a $50 million fund to clean up sites where contamination is threatening groundwater.
"There are other facilities that are permitted using this exact statutory framework, so this isn't just a Bishop's Lodge-Tesuque issue," Wirth said."If the court were to change the statute, it's going to have impacts throughout the state."
Jorge Armando Estrada, a spokesperson for the state Environment Department, wrote in an email Cabinet Secretary James Kenney was unable to discuss the matter in an interview as it is under litigation.
"The New Mexico Environment Department remains confident in its legal position that Bishop Lodge’s wastewater treatment system is subject to state ground and surface water quality regulations," Estrada wrote. "NMED has consistently found that the facility meets or exceeds all applicable state water quality standards. Due to ongoing litigation, we are unable to comment further at this time.”
All liquid waste discharges are regulated by the state. According to Estrada, discharge of 5,000 gallons or less is regulated under the liquid waste program. But for high-volume dischargers like Bishop’s Lodge, which anticipates receiving and treating up to 30,000 gallons of wastewater per day, ground and surface water protection regulations apply instead, although Protect Tesuque disagrees.
The legal argument from Protect Tesuque involves the testing of Bishop's Lodge's discharge for contaminants: The group's attorney, Thomas Hnasko, argues the Environment Department is applying the 1967 New Mexico Water Quality Act to discharges greater than 5,000 gallons a day, rather than the 1971 Environmental Improvement Act.
"The argument is that the liquid waste regulations deal with the concept of liquid waste in the waste stream by imposing engineering controls, whereas the Water Quality Act does not do that. It just tells you to test for constituents, in this case fluorides and nitrites, nothing else," Hnasko said.
One of the most powerful figures in state politics, Wirth, a lawyer, did not pick a side when asked who he supports in the case.
"I'm waiting to see what the court says," Wirth said. "Again, the state is a party to this matter so I've always been hesitant, as a legislator and as a lawyer who practices, to go jumping into pending lawsuits."
Wirth and state Rep. Andrea Romero, D-Santa Fe, virtually attended a recent community town hall held by Protect Tesuque, while Santa Fe County Commissioner Justin Greene attended in person at Tesuque Elementary School.
"Again, what we could do long term to help with the various efforts for you all to feel safe, that's my critical, number one concern is ensuring that we have these solutions available," Romero said at the meeting.
Greene spoke about the county beginning to study the possibility of a water system project in the region, saying wastewater is an issue across portions of the county lying north of the city. Tesuque area residents are currently on septic systems, Greene has said in the past.
"For our part of Santa Fe County, we've initiated a preliminary engineering report to start studying all of this and allow all of us to abandon our leach fields that are in the valley and do a collective regional wastewater system," Greene said. "... That said, these things don't happen very quickly. This is a large capital project. This would take years and years and years to do."
This comes as the U.S. Bureau of Reclamation continues to oversee the construction of the Pojoaque Basin Regional Water System, which will provide water to communities stretching from Española to Santa Fe. It is the final step in resolving the nearly six-decade-old Aamodt water rights litigation. The case roiled residents north of Santa Fe for decades, and the pipeline, spanning 160 miles, remains controversial.
An old wastewater treatment plant at Bishop’s Lodge, built in the mid-1970s, hasn’t functioned properly for years, leading the owners to pump wastewater into trucks and haul it to the city’s treatment plant — a method that has been described as inefficient and costly.
The new plant can treat wastewater to a “much better” quality, according to a document prepared by the Environment Department. Treated water will be used for irrigation on the property during parts of the year.
Staff writer Alaina Mencinger contributed to this report.
