With a federal judge ruling that New Mexico and 12 other states suing the US Environmental Protection Agency don't have to immediately comply with a recently released federal rule, more than 90 percent of the rivers and streams here remain without clear protections aimed at limiting pollution.
In question is the Clean Water Rule, an update designed to bring clarity to the question of which waters are covered by the Clean Water Act, a national landmark environmental law that dates to the 1970s. The court ruling has only muddied the waters for some.
The rule took effect on Aug. 28, yet the 13 states involved in the lawsuit—which include neighboring Colorado, Arizona and Nevada—received an injunction from a North Dakota judge that declares they won't be forced to comply with the new rule until the case is resolved in federal court.
"The federal Clean Water Act…was this groundbreaking piece of legislation," says Rachel Conn, interim director of Taos-based water quality watchdog Amigos Bravos. "It transformed our waters from waters that were burning to waters that are cleaned up."
Prior to the act, which put the first water quality standards in place, multiple rivers had become so contaminated with industrial waste that they caught fire, Ohio's Cuyahoga River perhaps the best known of these. The environmental measures, passed around the same time as the creation of the EPA and the launch of the Safe Drinking Water Act, saw bipartisan support in Congress and were signed into law by President Richard Nixon.
Supreme Court decisions in 2001 and 2006 were tasked with resolving confusions over which waters the Clean Water Act applied to and, incidentally, called into question protections for smaller tributaries, wetlands and intermittent streams, like those frequently found in New Mexico. Nationally, that confusion carried over onto some 60 percent of waterways, potentially affecting the drinking water sources for one in three Americans, according to the EPA.
The EPA was urged to draft new rules clarifying which waters the agency intended to see covered, and the draft of the Clean Water Rule was finalized this May. The rule states that smaller and ephemeral streams and wetlands are to be covered by the Clean Water Act, but excluded groundwater, irrigation ditches, gullies, "rills" and "non-wetland swales."
The lawsuit from objecting states quickly followed.
"EPA and the [US Army Corps of Engineers] forced this rule on the states with minimal state and stakeholder involvement. I am delighted that the court has halted this rule until its serious legal deficiencies can be corrected by the courts," New Mexico Environment Department Secretary Ryan Flynn said in the state-issued press release announcing the injunction. "Regulating a state's most precious resource, water, from Washington, DC, is both ineffective and wrong. Local oversight, local control, and local communication lead to the most effective protection of our arid state's waters, streams, and tributaries."
Ephemeral or intermittent streams Flynn labeled "so-called waters" that would now be "swept under the authority of the EPA and Army Corps."
"A lack of clarity and internal inconsistencies in the new rule will lead to misinterpretation and confusion, making disputes more likely," New Mexico State Engineer Tom Blaine said in a press release. "This lawsuit is necessary to protect the New Mexico State Engineer's exclusive authority to supervise the appropriation and distribution of our State's surface and groundwater."
While waiting for clarity from the courts and the federal agencies, 20 percent of New Mexican species, 24 of which have been identified as in need of conservation, and an estimated 280,000 people continue to depend on those waterways, advocates say.
"Instead of protecting our water, the Martinez Administration is spending precious state resources on gutting environmental protections and pursuing dirty water lawsuits," David Coss, chair of the Rio Grande Chapter of the Sierra Club, said in a press release from Amigos Bravos.
The Clean Water Rule has been challenged as a federal power grab that poses an economic chokehold for developers, who could see changes to their responsibilities for any pollution released from construction sites or wetlands lost under asphalt, but Conn points out it doesn't even fully reinstate the level of protections American waterways had when Ronald Reagan was president—and throughout the economically bustling '80s and '90s. And in addition to preserving the exemptions already written into the CWA, which does not apply, for example, to irrigation ditches, the new rule adds to the list of agricultural exemptions.
Among those expressing confusion and concern over the extent of the new rules are developers, who still don't have answers to issues raised a decade ago by EPA policy on storm water from construction sites and see this new rule just adding to the list of questions.
"The rules look more draconian, but we'll see if they really turn out that way," says Kim Shanahan, chief executive officer of the Santa Fe Area Home Builders Association, which hosted a luncheon last week focused on the Clean Water Rule.
"Enforcement of EPA rules has been kind of spotty, especially out here in the West," he adds. "That doesn't mean that they're not in place, but people's adherence to them has kind of been left up to the individual discretion of builders, quite frankly."
A builder working on a site not clearly defined as one for which the EPA requires a storm water management plan might follow best management practices for preventing dirt from running off from construction sites, employing mesh and mulch-filled tubing as barricades around the site or particularly concerning items like portable toilets and dumpsters, while not completing all the EPA paperwork, Shanahan says. That same builder might drive home down a street like West Alameda, that's adjacent to dirt roads, and see more muddy runoff coming from those unpaved roads than from a construction site and wonder just who it is that needs to protect the water.
Beyond that, builders may have to worry about affecting adjacent water-shaped geographies, now seen as contributing to the federally protected "waters of the United States."
"Every named arroyo in Santa Fe County is considered to be 'waters of the United States,'" he says, and therefore guilty by association with the rivers downstream.
"The new rule talks about if it has a bank or if it has a bed, it's a waterway. Well, a bank…could be six inches, so now we're even talking about arroyitos that could be considered a waterway," Shanahan says.
And could Albuquerque turn around and make demands of Santa Fe and Rio Rancho over what is sent downstream? At this point, with the injunction, he says, it's not even clear how construction should proceed
"That gray area becomes hard for us as an industry to be compliant with," he says.