Santa Fe New Mexican

Groups sue EPA over new water rule

- By Scott Wyland swyland@sfnewmexic­an.com

Three conservati­on groups sued the Environmen­tal Protection Agency on Tuesday over its new navigable waters rule, which they contend would gut regulation of polluted streams and storm runoff flowing into major waterways such as the Rio Grande.

Taos-based Amigos Bravos, the New Mexico Acequia Associatio­n and Gila Resources Informatio­n Project filed a federal lawsuit challengin­g the EPA’s new rule, which went into effect Monday.

The rule more narrowly limits waterways that fall under federal oversight, excluding as “ephemeral” storm-generated streams and tributarie­s that don’t connect to another body of water.

It could lead to EPA nixing its oversight of heavily polluted runoff from Los Alamos County into the Rio Grande — a prime source of drinking water — and it might disqualify the Gila River from protection because that waterway runs dry before reaching the Colorado River, advocates say.

“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.”

New Mexico is disproport­ionately affected by this rule because the state has a large number of streams that flow only during wet times, Conn said. These ephemeral streams have historical­ly been protected under the Clean Water Act, but the new rule leaves them unregulate­d.

Large, continuous­ly flowing rivers such as the Rio Grande and the Pecos are protected, as are seasonal waterways that dry up in arid times of the year and flow in wetter cycles, said Charles de Saillan, an attorney with the New Mexico Environmen­tal Law Center, which is representi­ng the three advocacy groups.

But distinguis­hing ephemeral waters from seasonal ones can be problemati­c because New Mexico’s weather can vary so much year to year, de Saillan said. Snowpack can melt earlier some years, and monsoons can come later in

other years, he said.

“It’s not clear exactly where the dividing line is,” de Saillan said. “It creates a huge amount of uncertaint­y.”

For that reason and others, the lawsuit calls for the court to vacate the EPA’s rule, he said.

Gov. Michelle Lujan Grisham and other New Mexico leaders have fiercely opposed the EPA’s effort to reduce federal water protection­s.

The state Environmen­t Department has estimated that almost all the state’s surface waters could lose protection under the new rule.

EPA officials wouldn’t address the lawsuit or criticisms of how the rule could affect New Mexico’s waters. But in an emailed statement, an agency representa­tive said a California federal court on Friday denied the request by 17 states — including New Mexico — to impose an injunction on the navigable waters rule.

“EPA and the Army [Corps of Engineers] developed the rule to protect the navigable waters and their core tributary systems for the entire country while respecting our statutory authority,” EPA spokeswoma­n Molly Block said. “The rule strikes the proper balance between state and federal jurisdicti­on and is designed to end the confusion that has existed for decades.”

However, New Mexico is already more limited than most states, de Saillan said. It is one of just three states that has no delegated authority from the EPA to regulate discharges of pollution into rivers, streams and lakes under the Clean Water Act, he said.

Water advocates say it’s important to retain federal pollution permitting of Los Alamos runoff, which tests have shown contains toxins such as mercury, copper, nickel, cyanide, radiation and polychlori­nated biphenyls, commonly known as PCBs.

The Environmen­t Department has pegged PCBs, a carcinogen, at 14,000 times the level deemed safe for human health in Sandia Canyon and 11,000 times the limit in Los Alamos Canyon.

The EPA agreed to establish a Los Alamos pollution permit in December after Amigos Bravos argued the agency had failed to address its 2014 petition requesting federal oversight of the toxic runoff.

In other areas, farmers could lose federal protection of water sources they depend on, said Paula Garcia, executive director of the New Mexico Acequia Associatio­n.

“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,” Garcia said.

Toward the south, the Gila River, a hub for nature lovers, hikers, anglers and diverse wildlife, could become degraded under this rule, de Saillan said.

Federal oversight would evaporate on the polluted tributarie­s draining into the Gila from upstream mine operations, he said.

The Gila itself might lose protection­s because it’s an interstate waterway and is not continuous­ly flowing, he said.

“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.”

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