Sewage spill fine still tied up in Texas courts

A fight over a $1.2 million fine from New Mexico to a Texas water utility’s 2021 sewage spill is stalled in Texas federal district court, attorneys told Water Quality Control Commissioners on Tuesday.

The 14-person regulatory board under the New Mexico Environment Department administers permits for pollution in the state and handles any appeals for permits or penalties issued by state agencies.

Attorneys on all sides of the dispute requested the board wait for the Western District of Texas court to resolve a motion to dismiss and other jurisdictional issues between El Paso Water Utility and New Mexico’s environmental agency, before putting it back on an agenda for the monthly administrative meetings.

In August 2021, flooding burst a series of sewer mains in El Paso. The city’s utility officials said the only option was to pump what amounted to 1.1 billion gallons of untreated waste into the Rio Grande riverbed in Texas, just outside of Sunland Park. The pumping of an average daily 10 million gallons continued over several months until installation of replacement lines finished.

On El Paso’s west side, the Rio Grande crosses between the Texas and New Mexico state line multiple times.

In June 2022, six months after the flow of sewage stopped, the New Mexico Environment Department issued the $1.2 million fine to El Paso Water Utility for failing to report the spill to the agency and violating state water quality laws since the spill crossed into New Mexico.

The utility sued the state agency in December. In the lawsuit, it claimed that New Mexico did not have power to fine a Texas entity for a spill in Texas, and that federal officials and the Texas environmental agency are the only appropriate authorities.

The groups have traded challenges in court, with no ruling yet from judges on the arguments. NMED filed a motion to dismiss the lawsuit in March, which has had rounds of responses and replies between the utility and state agency.

“We’re stuck until the court acts on that motion,” said Andrew Knight, the staff attorney representing New Mexico in the lawsuit. He recommends an indefinite pause on the issue until the Texas court acts.

Thomas Hnsako, a Santa Fe attorney on the team representing El Paso Water, concurred with Knight in his comments to the board, adding that the administrative process must wait until the court rules on the jurisdictional issues.

Steven Weller, an attorney for the utility based in Austin, Texas, told the committee that if the lawsuit is dismissed in Texas, the utility would refile in the federal district New Mexico court.

“We’re moving the case forward as quickly as we can,” Weller said.