Cattle growers group upset with Clean Water Act rules

Association says some of 1986 regulations, which have been readopted on interim bases, exceed EPA’s power

The New Mexico Cattle Growers Association has launched a fresh attack in a decadeslong legal battle over which of the country’s waterways should be regulated by the Environmental Protection Agency under the Clean Water Act.

The Pacific Legal Foundation filed a lawsuit this week in federal District Court against the EPA and the U.S. Army Corps of Engineers protesting the EPA’s recent repeal of Clean Water Act regulations imposed in 2015 and interim readoption of rules codified in 1986.

The repeal — which was announced about a month ago but became official when it was published Tuesday — is part of a two-step process the EPA has undertaken during the Trump administration that calls for wiping out the 2015 regulations and replacing them with new ones.

The proposed new regulations aren’t in place yet and there is no firm timeline for their adoption.

“The timetable keeps slipping for them,” Pacific Legal Foundation attorney Anthony Francois said. “Not long ago we heard they would be finalized by this December. … Then I heard it might be March or April.”

In the meantime, rules written in 1986 would be in effect.

That’s a problem for the Cattle Growers Association, which says in its lawsuit that some of the 1986 rules and definitions — particularly the definition of what constitutes “navigable waters” for the purposes of regulation — exceed the EPA’s

authority and were deemed invalid by the Supreme Court more than a decade ago.

Caren Cowan, the association’s executive director, said the 1986 rules contain language that make all waterways including “intermittent and ephemeral” wetlands and those that border larger “navigable waters” subject to regulation.

Reverting back to those rules, she said, would be onerous for association members because it would force them to spend time and money obtaining permits for even simple modifications to insignificant waterways such as arroyos or so called “prairie potholes” where water only collects once or twice a year.

For example, she said under the 1986 rules, a rancher who wanted to slow the water to prevent erosion in a flooding stream on his property by placing a tree trunk in the current would need a permit.

Cowan said cattle growers were also among those who had pushed back against the 2015 regulations, which were just repealed, for the same reason — the regulation of small waterways.

“We haven’t necessarily been happy with any of the versions,” she said, adding that living in legal limbo while the rules are refined is hard for association members, which is why the group filed the lawsuit to protect them from what could be coming.

“We don’t really know what [the new rules] are going to say,” Francois said. “But all of the different versions, even the ones the Trump administration has circulated for comment … have this flaw in them that they include the ephemeral and intermittent drainages, that goes beyond the scope of the Clean Water Act.”

The lawsuit asks the court to find numerous definitions in the 1986 rules invalid — something the Supreme Court already did in part in 2001 and 2006 rulings — and to prevent the EPA from enforcing regulations that rely on those definitions.

“The EPA does and should continue to regulate discharges to lakes and rivers people would easily recognize as such. But on these more attenuated areas, they are exceeding their authority,” Francois said.

Rachel Conn, projects director for the statewide water conservation organization Amigos Bravos, disputed the idea that the waterways subject to regulation under the 1986 and 2015 rules are insignificant.

According to the state Environment Department, Conn said, about 96 percent of New Mexico’s waterways could be at risk for unregulated pollution if the 1986 rules are abandoned and the proposed new rules are adopted.

And these are no prairie potholes. “The 2019 rule would very likely strip

Clean Water Act protections for the majority of the Santa Fe River,” Conn said, adding that Tijeras Creek in the Albuquerque area, the Rio Fernando de Taos, the Costilla Creek and the Gila River would also be at risk.

“Many of these rivers dry up before they reach the Rio Grande, and the Rio Grande is a traditional ‘navigable water,’ ” Conn said. “Under the 2015 rule, all these waters would be protected. Under the proposed rule, they would all lose coverage. It’s a quagmire.

“New Mexico is disproportionately impacted by this because it has so many smaller waterways whose jurisdiction is in question. The 2015 rules provided clarity about which of those waters would be protected. Without them, the state has regulatory uncertainty and the risk of more pollution in its waters.”

Conn said the repeal of the 2015 regulations was a huge step backward, and she too is worried about what could be coming down the pike.

Americans should care about this because before the Clean Water Act was in place “our rivers were actually on fire,” she said. “They were burning from petro-chemical pollution. We don’t want to go back to a time when our rivers were literally on fire.”

A spokesman for the U.S. Army Corps of Engineers declined to comment on the lawsuit. Representatives for the EPA did not respond to requests for comment.