As the impacts of the U.S. Supreme Court’s Sackett decision of 2023 unfold, New Mexico water advocates are pushing for increased protections of waterways that are no longer protected under the Clean Water Act.

Advocates from groups like Trout Unlimited and Amigos Bravo partnered with EcoFlight to help a group of legislators get a better picture of the landscape and how many waterways lost their protections due to the Sackett decision.

The plane flew over areas like the Caja del Rio, Valles Caldera National Preserve and parts of the Jemez River watershed.

Dan Roper with Trout Unlimited said that the Jemez River watershed is a “great place to think about the risks to our water resources right now.”

He said, since the Sackett decision, there are a lot of questions about what level of protections are in place for streams, rivers and wetlands in that watershed. Those waterways include rivers like the San Antonio Creek and the Rio Guadalupe that run year long and are popular places for anglers to fish. Some of the rivers and streams even originate in the Valles Caldera National Preserve.

“We don’t know if they’re protected,” Roper said.

One reason that New Mexico’s waters are at risk due to the court ruling is because the state is one of three that do not have their own surface water permitting program.

Another reason is the arid nature of New Mexico. The Sackett decision ruled that the Clean Water Act does not apply to waterways and wetlands that aren’t adjacent to a navigable water or are not perennial.

That places areas like New Mexico that have a lot of ephemeral and intermittent streams and wetlands at risk, despite the fact that those waterways are critical to ensuring clean drinking water and irrigation water.

Some of the threats to waters in New Mexico include road building, development, mining, oil and gas extraction and even forest management, Roper said.

He said that some of the modeling that has been done following the Sackett decision has led to concerns that many of the streams no longer have the level of protections that they once did.

“If they aren’t protected by the feds, they don’t have protections right now,” Roper said.

The streams around Los Alamos National Laboratory, for example, may not be protected by the Clean Water Act, according to a map provided by Trout Unlimited. These waterways have documented pollution including mercury, cyanide, selenium and other metals, according to a state report. 

Since Sackett, there have been questions about who, if anyone, has the authority to regulate discharges of pollutants from Los Alamos National Laboratory into the ephemeral streams that are often dry.

Tannis Fox with the Western Environmental Law Center said one thing that New Mexico can do in light of the Sackett decision is to get statutory and regulatory authority over discharges that are currently regulated by the federal government. That includes discharges from industrial sources and wastewater treatment plants. Currently, those are permitted by the U.S. Environmental Protection Agency and certified by the New Mexico Environment Department to satisfy the state’s water quality standards.

New Mexico has taken steps to begin a surface water permitting program and the initial program rollout could occur in 2027.

The state also joined the America the Beautiful Freshwater Challenge, which aims to reconnect wetlands and waterways.

Some of the streams that lost their protections, like the San Antonio Creek do flow year round, but go dry before reaching a larger waterway that is within the EPA’s jurisdiction. Because of that, the Sackett decision may have left them unprotected.

Fox said it is uncertain if protections could be restored through efforts to keep water in a waterway that currently goes dry before its confluence with a larger river.

“A little bit of this still is up to interpretation of the courts of the Supreme Court’s decision,” she said.

Fox said the Supreme Court ruled that, in order to be protected, rivers like the Rio Grande and San Juan have to flow “relatively permanently;” however, the justices did not define what that means and did not provide any guidance in determining what streams remain under the EPA’s jurisdiction.

“When we’re talking about streams at risk, we are looking at these waters that potentially do not run permanently, that are potentially at risk, which is a wide swath of waters in New Mexico,” she said.

While the U.S. Congress could change the Clean Water Act to ensure all waterways are protected, Fox said there is not the political will to do so at this time.

That leaves a patchwork of protections that change from state to state despite the fact that waterways cross state lines.

While Fox hopes that New Mexico will take robust measures to ensure its waters are protected, she said not all the states in the arid west will make those efforts. One reason that the Clean Water Act was needed in the first place was that state efforts were not adequate to protect the waterways, she said.

“It’s important from a national perspective, that you not have a patchwork of protection of rivers and streams, but that you have protection throughout the nation,” Fox said. “And so, the Supreme Court, in my view, has really taken us back 50 years.”

Fortunately for New Mexico, many of the waters crossing into the state are coming from Colorado, which, Fox said, is also looking at “beefing up” surface water and wetland programs.

Roper said that, when it comes to water, everything’s connected.

“When we talk about the health of our watersheds, it’s our perennial streams…it’s our ephemeral drainage, a lot of those are arroyos,” he said. “But everything’s connected. Everyone lives downstream. So we really need to take a watershed approach to those issues.”