High court ruling on waterways is bad news

Few things are more precious to New Mexicans than clean water, something our increasingly arid state needs in abundance. That’s why a U.S. Supreme Court ruling last week further weakening the Environmental Protection Agency’s authority is a matter of concern.

In a 5-4 decision, the high court rolled back the EPA’s ability to restrict real estate developers, farmers and others from adversely affecting wetlands near rivers, lakes and streams.

While the impact might be even greater in wetter parts of the country with more of those features, it gives us plenty of reason to worry.

One reason the ruling is bad news for New Mexico is we’re one of three states that does not have its own permitting program for surface water quality, the kind of regulatory authority needed to help prevent industries and development projects from endangering drinking water, streams and irrigation channels.

The ruling came in a clash over what Congress intended in 1972 when an overwhelming bipartisan majority passed the Clean Water Act, which regulators have used to make our nation’s waters far cleaner.

For decades, courts agreed Congress meant to extend the law’s protection of “U.S. waters” beyond traditional navigable waters to include the wetlands, intermittent streams and other tributaries that feed into rivers and lakes.

However, the high court’s conservative majority has now decreed that the various kinds of pollution require a permit only if discharged into waters that are “relatively permanent, standing or continuously flowing bodies of water.”

While science says water can move between a protected body of water and an adjacent area even if the two are not joined by a surface connection, the court majority ruled that doesn’t matter under its interpretation of the Clean Water Act.

Justice Samuel Alito’s opinion relied on a dictionary definition. But Justice Brett Kavanaugh sided with the minority in saying Congress had a more ambitious intent when passing the landmark law.

Justice Elena Kagan, who was also outvoted in the court’s previous ruling limiting the EPA’s ability to fight climate change, said the majority again has appointed itself the “national decision maker on environmental policy.”

Industry groups including The Fertilizer Institute and the American Farm Bureau Federation praised the ruling. But that contrasted with many local reactions.

In New Mexico, Brian Sweeney with Western Environmental Law Center said, “intermittent and ephemeral streams represent over 93% of all streams in the state. These waters are often connected hydrologically and biologically to downstream perennial streams, and are critical to maintaining the health of these downstream waters by controlling flooding, filtering pollutants, supplying drinking water sources and providing habitat for aquatic life.”

As might be expected, Gov. Michelle Lujan Grisham was “appalled” by the court decision. She issued a statement saying her administration would immediately begin identifying “any regulatory gaps that we can fill at the state level.”

We’ll see where that goes.

The ruling also didn’t sit well with U.S. Sen. Martin Heinrich, D-N.M. “Our state’s surface waters are already scarce and threatened,” he said. “We cannot afford to lose protections of those waters.”

We are among those who would like to see our congressional delegation take the lead in working to restore federal protections.

We have no expectation that would be an easy task in the current Congress.