WOTUS rule offers certainty, but little clarity for New Mexico waters

The impacts from the landmark case are trickling down, but concerns for vulnerable wetlands grow

By: - September 6, 2023 5:05 am
Rio Grande water stored in Elephant Butte and Caballo resevoirs is released downstream to southern New Mexico and Texas on June 1, 2022.

Rio Grande water stored in Elephant Butte and Caballo resevoirs is released downstream to southern New Mexico and Texas on June 1, 2022. Rollbacks on federal water and wetland protections may have an outsized impact in arid states like New Mexico, experts said. (Photo by Diana Cervantes by Source NM)

Federal environmental officials modified their rules last week to comply with a Supreme Court decision brought down in May.

Meanwhile, state officials are waiting for more guidance from federal agencies around New Mexico’s waters and will continue the push for funding for a state permitting program in the upcoming legislative session.

Under the new rule issued by the Environmental Protection Agency, the legal definition of waters of the United States, and adjoining wetlands was pared down, following the ruling in Sackett v. EPA in May.

The rule changes will restrict protections for waters and wetlands. The rule went into effect immediately, without a public comment period.

Sackett v. EPA

The U.S. Supreme Court ruled on May 25 in the case Sackett vs. EPA that the federal government overreached its authority. This stemmed from a dispute over infilling a wetland area to build a house with Idaho couple Chantell and Michael Sackett.. The court agreed 9-0 to send the case back to the lower courts. But the justices had a 5-4 split, with the majority limiting the definition of what wetlands could be protected.

In the majority opinion, Justice Samuel Alito wrote that the wetlands must be “indistinguishably” part of waters already protected by the Clean Waters Act. Those have been defined by other cases to include “relatively permanent, standing or continuously flowing bodies” – think streams, oceans, rivers and lakes.

This is the third overhaul of federal agency rules on “waters of the United States,” across three presidential administrations.

The Clean Water Act, passed in 1972, created a system requiring anyone dumping pollutants – such as livestock waste, or infill from construction and industrial runoff – into “waters of the United States” to seek a permit.

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Often, the EPA delegates this authority to state agencies, but New Mexico is one of three states without a state-run permitting program.

New Mexico, and other arid states, are vulnerable to losing protections under the new rule, said Shelly Lemon, the bureau chief at the Surface Water Quality Bureau for the New Mexico Environment Department.

“Without a state program, we’re going to have very few waters that fit this description anymore, that are protected under the Clean Water Act,” Lemon said.

In a statement, EPA Region 6 – which oversees areas including New Mexico – did not provide specifics for when meetings with tribal governments and state agencies would occur, only saying they would happen this fall.

“With this rule, the agencies are updating their regulations to provide much-needed clarity and certainty to the public, state and tribal co-regulators, the regulated community, and federal agency partners,” said Joe Robledo, a spokesperson for EPA Region 6. “The agencies are also committed to addressing other issues that may arise outside the scope of this limited rule.”

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More information

The Environmental Protection Agency and U.S. Army Corps will hold identical public webinars on Sept. 12, Sept. 13 and Sept. 20 to provide updates on the definition.

The Sept. 12 webinar is full, as of Tuesday. You can register online at https://www.epa.gov/wotus/amendments-2023-rule for the Sept. 13 or Sept. 20 events.

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New rules, new questions

Limiting which waters are defined as “waters of the United States,” based on permanency may remove protections for waters that only run part of the time.

New Mexico environment officials estimate 93% of New Mexico’s streams and rivers are seasonal, or only running when there’s heavy rain, according to a 2019 comment to the EPA.

The comment named “localized monsoonal downpours, ephemeral arroyos, cienegas, effluent-dependent streams, playa lakes, and other man-made reservoirs, waterways,” and canals in that category.

Lemon said it’s unclear how the EPA and the U.S. Army Corps of Engineers are going to interpret ‘relatively permanent,’ requirements.

“Does that mean [a river] would need to run 99% of the time, or 75% of the time to be permanent?” Lemon posed, “Hopefully, the guidance that they come out with will provide a little more clarity.”

New federal water pollution rule draws mixed reaction

The other rollback may impact wetlands – like the Bosque del Apache, for example. The rule removed a test for determining a protected wetland called the “significant nexus” test, established in an earlier Supreme Court case.

That test meant a wetland was protected if the water body influenced the “chemical, physical and biological makeup” of downstream waters.

Now, wetland must also have “a continuous surface connection” which would make it difficult to determine where one body of water begins and ends. Connections in groundwater don’t count.

“If there are structures or mounds that prevent that surface connection, then it’s not an adjacent wetland,” Lemon said.

Unless Congress amends the Clean Water Act, the Sackett v. EPA decision remains the law, Lemon said.

“There is opportunity with the federal government to change this, but we have to have cooperation at the federal level to do that,” she said. “And I don’t see that happening right now.”

National conservation organizations estimated that millions of acres of wetlands across the country will lose protection under the new rules. It’s unclear how much of that will be in New Mexico.

“We don’t have any hard, cold estimates yet,but it’s looking like a very substantial number of wetlands in New Mexico will no longer be protected,” said Tannis Fox, the senior attorney at the Western Environmental Law Center.

Fox said the state could take actions to mitigate the lost federal protections.

“Putting some kind of stopgap or interim measures in place to protect wetlands is really critical,” Fox said. “Because wetlands without a continuous surface water connection to waters of the U.S. are really left, high and dry,”

What about a state program?

New Mexico’s definition of waters of the state is more expensive than the narrowed federal regulations, but would require years of work, and millions of dollars.

In order to run a program, the state legislature would need to pass a resolution. The state would then seek input from New Mexicans and tribes, author new rules for its pollution authority board for adoption, and then seek EPA approval.

New Mexico Environment Department Secretary James Kenney told Source NM in an earlier interview that the agency hopes to author rules for the program by December 2025, based on current funding and staff.

He said more lawsuits over regulations would delay the process for building out the program.

A program would require 40 to 45 more staff, and cost between $6 million to $7 million to operate.

In the past two years, Lemons said the state legislature has granted money towards working on a program, including nearly $700,000 from the last session.

“We’re gonna have to keep going back each legislative session as we move through this program development, because we don’t have a program yet set up to establish fees to pay for the program,” Lemon said. “We will be asking for continued support.”

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Danielle Prokop
Danielle Prokop

Danielle Prokop covers the environment and local government in Southern New Mexico for Source NM. Her coverage has delved into climate crisis on the Rio Grande, water litigation and health impacts from pollution. She is based in Las Cruces, New Mexico.

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