Congress threatens to roll back water protections
Appeal would impact Rio Costilla, New Mexico wetlands and streams
Despite an impassioned plea from U.S. Rep. Melanie Stansbury, who represents New Mexico’s 1st congressional district, the U.S. House of Representatives voted earlier this month to appeal the U.S. Environmental Protection Agency’s most recent guidance on pollution discharge and waterway restoration under federal law.
According to Rachel Conn, deputy director of Amigos Bravos, a Taos-based environmental advocacy organization, a rollback of the Biden rule would mean as much as 96 percent of New Mexico’s surface waters would no longer qualify for pollution protections, including the Rio Costilla in Taos County.
“The Rio Costilla is where many of the county’s youth learn to fish; it supports our local economy, and is where many fly fishing guides take customers, which supports our local economy,” Conn said. “But it dries up for several miles before it flows into the Rio Grande. So, under the Trump rule, rivers like the Rio Costilla — without a permanent connection to a definitely-protected river like the Rio Grande or the San Juan or Chama — weren’t protected.
“The Rio Costilla was traditionally protected in a number of ways,” Conn added. “One, it’s a relatively-permanent tributary or meets the [federal] significant nexus test; and, two, it’s an interstate river that flows in Colorado and New Mexico. The Biden rule restores protections to interstate waterways and to non-permanently flowing waters.”
The rule, which was promulgated under the Joe Biden presidential administration, extends protections under the 1972 federal Clean Water Act to wetlands and seasonal or ephemeral streams by including them in a basic definition of water bodies. A version of the rule instated during the early days of the Donald Trump presidential administration eliminated such streams and wetlands from the definition of what constitutes “the waters of the United States,” colloquially known as WOTUS.
Dozens of organizations representing a variety of agricultural, extractive and other industries tried to block the Biden rule earlier this year by filing suit in federal court, asserting in a civil complaint that “the rule imposes impossible — and unpredictable — burdens on land owners, users, and purchasers,” and “requires them to assess not only their own land, but also vast expanses of land beyond their own holdings, using multiple vaguely defined connections to potentially remote features, in an effort to determine if their land is regulated under the Clean Water Act.”
There was an outcry among many farmers, ranchers and mining industry groups when the Barack Obama presidential administration tightened WOTUS pollution rules on wetlands and ephemeral waterways in 2015.
The U.S. Senate is expected to take up the measure soon. If it passes the Senate, President Joe Biden said he will veto the resolution, according to a statement issued by the White House Office of Management and Budget earlier this month.
The Biden-era final rule’s definition of WOTUS sets the bounds for what activities are regulated by the federal government under the Clean Water Act. The rule provides rules of the road that guide infrastructure projects, economic investments and agricultural activities while protecting water quality.
The rule would return longstanding 1986 regulations with appropriate updates, exclusions and streamlining clarifications. This pre-2015 approach to the WOTUS definition “provides regulatory certainty and reflects the agencies’ long experience, the best available science, and extensive stakeholder engagement,” according to Amigos Bravos.
“New Mexico has been in the crosshairs of dirty water actions by the federal government for far too long,” Conn said in a statement earlier this month. “Water here in New Mexico is too precious to risk unregulated dumping of pollution. It is time that we as a state step up to protect our own waters.”
Conn pointed to the Pajarito Plateau, the volcanic formation on which Los Alamos National Labs sits, and which features drainages between several finger mesas that flow into the Rio Grande during snowmelt or rain events, as an example of the benefits of regulation under the Biden rule.
“Many of these streams are ephemeral, and under the Trump rule they were specifically out,” she told the Taos News this week. “There are hundreds of discharge points from historic dumping and lab activity — and they weren’t regulated under the Trump rule. The Biden rule sets up a process for ensuring most of those discharges are regulated.
All three New Mexico members of the House voted against the appeal earlier this month.
“In New Mexico, water is life, water is sacred, water is culture; water is sacred to everything that we do and everything that we are,” Stansbury said in her remarks before the House vote. “For years, our state and our communities have ridden the roller coaster of regulatory rollbacks on the Clean Water Act. But I never could have imagined that, in the year 2023, we’d be voting on a bill to gut the rule that protects our streams and rivers.”
In a statement to the Taos News, U.S. Sen. Martin Heinrich called the appeal “wildly misguided.”
“This Republican resolution is wildly misguided and would dangerously undermine vital protections under the Clean Water Act for almost all of the rivers, streams and wetlands in New Mexico,” Heinrich said. “If we roll back enforcement of the Clean Water Act or restrict the definition of ‘Waters of the United States,’ impacted freshwater resources in New Mexico that nurture our crops and provide access to safe drinking water simply would not have any other protections to fall back on.”
New Mexico is one of only three states that is not authorized by the EPA to administer the federal National Pollutant Discharge Elimination System program.
“Our surface waters are currently at the mercy of changing federal regulations and guidelines,” a spokesperson for New Mexico Environment Secretary James Kenney said in a statement to the Taos News. “Development and implementation of a state surface water permitting system, including state authorization from the EPA to issue discharge permits, would move the decisionmaking process from the federal government to the state, where it can be overseen by professionals who best know and understand the value of water in New Mexico.
“A state surface water permitting program will also allow protection of additional ‘surface waters of the state’ that fall outside the definition of waters of the United States, including arid wetlands like playa lakes and surface waters within closed basins like the Mimbres Basin and Tularosa Basin,” the department spokesperson said.
Major tributaries to the Rio Grande, such as the Santa Fe River and the Rio Puerco, could lose environmental protections if the rule is rolled back, as could entire watersheds such as the Upper Gila–San Francisco Watershed and the Rio Fernando and Rio Pueblo watersheds in North Central New Mexico.
State legislators included a $680,000 appropriation to fund the New Mexico Environment Department’s development of a stateadministered surface water discharge permitting program in House Bill 2, the state budget, and the clawback date for a $250,000 appropriation to the nascent program was extended. House Bill 2 is currently awaiting Gov. Michelle Lujan Grisham’s review — she has statutory veto power over line items in the budget bill — and signature.