Tuesday, March 28, 2023

The Never-Ending Water War Litigation

What Does Trump’s “Dirty Water War” Mean for New Mexico?


The water war ball bounced back into court when President Biden announced in January, 2021 that the Defense Department and the Environmental Protection Agency would begin a review of Trump’s federal waters definition. Trump’s rule, the Navigable Waters Protection Rule (referred to as the “Dirty Water Rule”), lifted federal jurisdiction over some small streams and ditches and rolled back the 2015 Obama administration’s expansion of water protections. Biden also signed an executive order revoking a 2017 Trump order calling for a review and reversal of the Obama rule. 

The finalization of the Trump administration’s “Dirty Water Rule” severely weakened the Waters of the United States (WOTUS) protections across the nation and represents the greatest challenge to the water rules by any administration since the Clean Water Act passed Congress in 1972 as bipartisan legislation after state’s efforts failed to clean the nation's waters.

New Mexico and the West have multitudes of ephemeral waters that only flow occasionally, depending on rainstorms and snowmelt. The Dirty Water Rule does not acknowledge scientific evidence that shows streams and wetlands are critical to the health of any downstream water bodies and that these ephemeral waters would be severely impacted by Trump's water rule rollback. New Mexico loses protection for the 156,000 stream miles, or 66 percent of the total in the state, that are categorized as ephemeral

As one of three "non-delegated" states, New Mexico waters do not have state protections to fall back on. The state does not have delegated authority from the EPA to regulate discharges of pollution into rivers, streams and lakes. "This means that the EPA administers and issues all of our permits in New Mexico," Bryan Bird, southwest program director for Defenders of Wildlife said. "So that basically means if we don't have federal protection for 90 percent of our water, then there's no protection; the state doesn't protect it." 

In an effort to reverse Trump’s “Dirty Water Rule” litigation, filings abound. State, citizens groups and environmental litigators challenging Trump’s rule say it ignores the original intent of the Clean Water Act and creates confusion and uncertainty about which waters remain protected. 

In May 2020 New Mexico filed a lawsuit with a coalition of 16 states, the City of New York and the District of Columbia asking a federal court to stop Trump’s water rule from going into effect while it awaits a decision in an earlier lawsuit against the rule. Environmental Secretary James Kenney said the Trump rule removes protections for up to 90 percent of rivers and streams in the state.

In June 2020 three New Mexico-based organizations—Amigos Bravos, the New Mexico Acequia Association and Gila Resources Information Project—joined together to appeal the U.S. Environmental Protection Agency and the Army Corps of Engineers' so-called Navigable Water Protection Rule (“2020 Rule”). “The Trump administration has opened the pollution floodgates,” said Rachel Conn, projects director with Amigos Bravos. “This 2020 Dirty Water Rule protects the interests of polluters over the interests of the public who rely on clean water for drinking, agriculture, recreation and cultural values.”

The Trump rule removes automatic protections for interstate waters. The Gila and Rio Costilla are interstate waters, and both of these rivers run dry before meeting up with larger downstream rivers. “It is horrifying that a New Mexico river as important as the Gila is left unprotected by this rule,” said Allyson Siwik, executive director of Gila Resources Information Project. “Irrigators and the growing recreation-based economy of southwestern New Mexico are dependent on clean water flowing in the Gila.”

In March 2021 the Pueblo of Laguna and the Pueblo of Jemez, both New Mexico Native American communities, sued the Environmental Protection Agency over the revision to federal rules regarding waterways, arguing it violates federal responsibilities toward tribes. Court filings state that the pueblo tribes “have resided on lands now within the state of New Mexico since time immemorial, and that waters that flow through their lands are necessary for domestic and agricultural uses and are also essential for cultural and ceremonial practices.” 

On Feb 2, 2021 in a letter to President Biden, Chair of the House Committee on Transportation and Infrastructure Peter DeFazio (D-OR) and Chair of the Subcommittee on Water Resources and Environment Grace F. Napolitano (D-CA) asked President Biden to repeal the Trump administration’s Navigable Waters Protection Rule—The Dirty Water Rule. 

The two chairs told President Biden, “The Trump Dirty Water Rule transfers the costs for protecting the health and safety of our communities from polluters onto working American families. It squanders our Nation’s precious natural resources—including our oceans, rivers, streams and wetlands—to unfettered pollution and destruction.”

Charles de Saillan, staff attorney at the New Mexico Environmental Law Center, said the new federal rule all but nullifies the protections of the Clean Water Act over many streams and wetlands in New Mexico. “It reverses nearly 50 years of interpretation of the Clean Water Act by EPA, the Army Corps of Engineers and the courts. As this regulation is implemented, permits will not be necessary for discharging pollution into many rivers, lakes and streams.” 

According to the New Mexico Environment Department, the Trump water rule change eliminates approximately 40 percent of water pollution permits, as no permit would be needed to release contaminated water into ephemeral streams and wetlands that aren't immediately adjacent to protected waters. This would include permits needed by wastewater treatment plants, hard-rock mines and coal mines. The oil and gas industry has been lobbying for many years to weaken the Clean Water Act to allow for more discharge of oil and gas wastewater (produced water) and stands to reap many benefits from Trump’s water rule changes. 

“We are deeply concerned that many of our streams and rivers would lose protections under the 2020 rule. We rely on clean water to grow crops and raise livestock, to provide locally grown food for families and to support agricultural livelihoods in our communities,” said Paula Garcia, executive director of the New Mexico Acequia Association.


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