March 1, 2017

Trump orders review of Clean Water Rule

Laura Paskus

When the Santa Fe River flows in the springtime, the New Mexico Department of Game and Fish stocks trout for an annual fishing derby.

On Tuesday, President Donald Trump brought a relatively obscure but important water rule to national attention. Trump signed an executive order directing the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers to review the “Clean Water Rule” also known as the Waters of the U.S. Rule.

Trump’s order does not overturn the rule, which was already under a court injunction thanks to a lawsuit from 13 states, including New Mexico. Instead, it orders a final review of the rule, which will likely take years.

The Clean Water Rule was finalized in 2015 as a way to clarify confusion over parts of the Clean Water Act, which was signed into law by President Richard Nixon in 1972. The rule applies to navigable waterways and their tributaries.

Under the rule, a tributary doesn’t need to be a continuously flowing body of water. But it must have flowing water—marked by a bed, bank and high water mark—to warrant protection. The rule, for example, does not regulate ditches, puddles or farm ponds.

On the EPA’s website, the rule is described as protecting the nation’s “regional water treasures”:

Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.

The Clean Water Rule ensured that tributaries to New Mexico’s rivers were protected, Amigos Bravos Project Director Rachel Conn explained. New Mexico’s five navigable rivers are the Rio Grande, Canadian, Pecos, Gila and San Juan. Some of the tributaries include the Santa Fe River, Rio Hondo, Red River and Rio Pueblo.

Laura Paskus

Santa Fe River

Conn noted that 93.6 percent of New Mexico’s tributaries are ephemeral or intermittent, which means the rule would have restored Clean Water Act protections to many of those waters.

In a statement, U.S. Rep. Steve Pearce, the lone Republican in the delegation, praised Trump’s executive order.

“Today’s Executive Order is a step in the right direction to reign in the EPA and cut the government red tape that is hurting landowners and job growth in New Mexico,” read the statement. “The WOTUS Rule allows Washington bureaucrats to regulate small streams and natural and manmade ditches across lands owned by farmers, ranchers, and small businesses.”

Pearce also claimed that if implemented, the rule will “drive up costs for New Mexico landowners and will cost thousands of jobs.”

Trump’s executive order is titled, “Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the ‘Waters of the United States’ rule.”

As soon as the rule was finalized in 2015, a coalition of 13 states sued to stop its implementation. The Sixth Circuit Court of Appeals in Ohio delayed the rule from going into effect as the litigation proceeded.

The two agencies in New Mexico that joined the suit were the New Mexico Environment Department and the Office of the State Engineer.

At the time of the court’s injunction in October 2015, then-Secretary of the Environment Department, Ryan Flynn, praised the decision in a statement.

“Now, with a nationwide stay, all 50 states’ regulatory agencies will no longer face the cost and uncertainty created by preparing for implementation of a new rule that awaits judicial determination of its legality, and which may never come to pass,” Flynn said.