Trump-era water rule thrown out

Environmentalists say federal judge’s decision ‘great news for clean water in New Mexico’

A federal judge has struck down a Trump-era rule that removed federal protections from nearly all of New Mexico’s waters, a court decision that environmentalists said was vital while the Biden administration works through a lengthy process to create a new water rule.

U.S. District Court Judge Rosemary Marquez on Monday wrote the Trump rule contained serious errors and, echoing conservationists’ concerns, argued it would cause “serious environmental harm” to the nation’s waterways if left in place.

Known as the navigable waters rule, it only protected waterways that flow year-round or seasonally and connect to another body of water.

That excluded as “ephemeral” an estimated 90 percent of New Mexico’s waterways and also didn’t regulate runoff that could carry pollutants to rivers used for drinking water.

“It’s great news for clean water in New Mexico,” said Rachel Conn, project director for Taosbased Amigos Bravos, a water advocacy group.

The judge’s decision vacates the Trump rule immediately, and it can be restored only if a higher court overrules this judge on appeal, said Charles de Saillan, staff attorney for the New Mexico Environmental Law Center.

The decision is significant because the judge went beyond the White House request to have the Trump rule kicked back to the U.S. Environmental Protection Agency to change, de Saillan said. The judged opted to both remand and vacate the rule, he said.

“They got more than they asked for,” de Saillan said.

Farming, ranching and manufacturing groups backed the Trump rule’s narrower federal protections, arguing the more stringent Obama-era rules were cumbersome and that states should do most of the regulating.

A cattle ranching representative wrote in an email the decision was disappointing.

“The Trump rule was an improvement over the previous version,” wrote Randell Major, president of the New Mexico Cattle Growers Association. “Over the years, EPA has changed the definition of navigable waters to increase its regulatory authority at the expense of property owners’ rights.”

Government, he added, should not be in the business of micromanaging America’s farmers and ranchers. Still, New Mexico is one of three states that have no authority to regulate discharges from industry under the Clean Water Act.

“The talking points of the folks pushing for this weakening of federal clean water protections don’t apply in New Mexico because we don’t have state rules in place that will regulate discharges into surface water,” Conn said.

The main concern of most states about Trump’s “dirty water rule” was that it slashed protections for dredge-and-fill projects in waterways, Conn said. New Mexico had to contend with its waters being unprotected from dredging and polluted runoff, she said.

The judge ruled on a lawsuit brought by six Native American tribes against the EPA and U.S. Army Corps of Engineers, which oversees major dredging throughout the country. The tribes accused the two agencies of enacting a rule that failed to protect their waters.

In New Mexico, the Jemez and Laguna pueblos also sued the EPA for similar reasons and with the hope of nullifying a rule that could take the Biden administration two or three years to replace before facing almost certain litigation that could further delay it.

New Mexico’s state and federal leaders also condemned the Trump rule. Gov. Michelle Lujan Grisham called the rule a disaster for the state’s waterways and cheered the new EPA administrator’s decision to repeal and replace it.

Now that the rule has been thrown out, the EPA can focus on drafting new regulations for waterways, said Janette Brimmer, senior attorney for Earthjustice.

“Thousands and thousands of water bodies now will regain protection under the Clean Water Act that lost it under the dirty water rule,” Brimmer said.

In the meantime, regulations will revert to those established in 1986 but with the addition of two U.S. Supreme Court rulings on federally protected waters, Brimmer said. These rules offer considerably more water protections than the Trump rule, she said.

Ultimately, New Mexico must gain greater authority to regulate surface water to protect lakes and standalone basins not covered under federal rules, Conn said. Until then, the EPA must come up with a rule that safeguards waterways and can withstand legal challenges, she said.

“It needs to be reliable and strong,” Conn said.