Attorney General New Mexico

New Mexico joins multistate coalition asking for preliminary injunction on Clean Water rule

By |

New Mexico joined Tuesday a coalition of 16 states, the City of New York and the District of Columbia that are asking a federal court to stop the U.S. Environmental Protection Agency’s new clean water rule from going into effect while it awaits a decision in an earlier lawsuit against the rule. 

Attorney General Hector Balderas joined the coalition in filing a lawsuit May 1 against the Trump Administration in the federal Northern California District Court over the EPA’s recently finalized changes to the “Waters of the U.S.” definitions in the Clean Water Act regulations. 

The definition greatly narrows the types of waterways, streams and wetlands that are afforded federal protection under the act. The New Mexico Environment Department estimates the new rule would remove protections for 89 percent of the state’s streams and half of its wetlands. RELATED: Ranchers, conservation groups unhappy with the new clean water rule, but for different reasons

The rule is slated to take effect in June, spurring the multistate coalition to ask for a preliminary injunction that asks that the rule be enjoined until the court makes a decision on the coalition’s lawsuit “in order to prevent widespread harm to national water quality and to avoid disruption to state and local water pollution control programs,” according to a statement issued by the AG’s office. 

In a separate statement, New Mexico Environment Department Secretary James Kenney said NMED will do “whatever it takes to prevail in protecting our most precious resource.”

“We will not allow a rule to take effect this summer that will devastate New Mexico’s scarce and limited water resources,” Kenney said. NMED submitted comments on the rule in April, arguing that the new rule is “not based on hydrologic science” and “does not account for the impacts of climate change on the hydrologic cycle,” and said the new rule is not protective of public health or the environment.

Clean Water Act

Ranchers, conservation groups unhappy with the new clean water rule, but for different reasons

By |

The Donald Trump administration only finalized its new clean water rule a few days ago and the regulation is already being challenged in federal court by ranchers, conservation groups and state governments. 

The conservation-focused New Mexico Wilderness Alliance joined a coalition of conservation groups that allege the new rule goes too far in gutting protections for many streams and wetlands in New Mexico and across the country. 

The New Mexico Cattle Growers Association, on the other hand, also filed a lawsuit against the administration, arguing that the new rule doesn’t go far enough in rolling back those protections. 

RELATED: EPA rolls back water protections for seasonal rivers and streams

Ephemeral and intermittent waters make up the meat of the rule change and its challenges. Previous versions of the clean water rule included ephemeral and intermittent streams, which only flow in response to precipitation events such as torrential rains or snowpack melt. The Trump administration’s version of the rule removes protections for all ephemeral streams and some intermittent waterways and wetlands. For New Mexico’s landscape, those terms define up to 90 percent of the state’s surface water. 

“It’s a bold step by the EPA to do this,” Tony Francois, senior attorney at the Pacific Legal Foundation, and who is representing the Cattle Growers Association, told NM Political Report. “They’re in for a lot of controversy and criticism for doing it.” 

A history lesson in defining WOTUS

The Clean Water Act’s regulations have been controversial since day one, mostly because the federal government has had a hard time delineating which waters should and should not be regulated at the federal level, as determined by the regulatory definition of “waters of the United States,” also known as WOTUS. 

Due to ambiguity in the original 1986 clean water rule, the EPA and the Army Corps of Engineers used their own interpretations of the term for years in their respective regulatory roles. In 2001 and 2006, the Supreme Court weighed in on the definition in two separate decisions, but no clear majority opinion emerged from those cases. 

“Those [regulations] were very expansive, they basically regulated all tributaries, without any qualifications, and that included ephemeral tributaries, basically any place where water would drain where it rained,” Francois said. 

Under former President Barack Obama’s administration, the EPA and the Army Corps of Engineers proposed a new rule in 2015 that attempted to clarify its boundaries using the “significant nexus” test, an idea proposed by U.S. Supreme Court Justice John Kennedy in the 2006 case.

Clean Water Act

EPA rolls back water protections for seasonal rivers and streams

By |

The EPA has repealed a portion of the Clean Water Act that expanded protections for smaller water systems across the U.S. EPA Administrator Andrew Wheeler and Department of the Army Assistant Secretary of the Army for Civil Works R.D. James announced the repeal at an event at the National Association of Manufacturers headquarters in Washington D.C. Monday. 

The Obama-era 2015 rule defines “waters of the United States” (WOTUS) to include isolated waterways and wetlands, as well as seasonal streams and rivers that flow only part of the year. The definition was broadly supported by environmental groups as a recognition of the complexity of water systems across the U.S. but drew criticism from industry and land stakeholders for creating uncertainty around which waters are federally regulated and which are not. 

Communities in New Mexico and across the western half of the U.S. rely on waterways that flow intermittently after rain or snow to support wildlife habitats and drinking water sources. The 2015 rule extended pollution protections to those types of water systems, which often feed into larger rivers, lakes and other water systems. Ninety-three percent of New Mexico’s waterways are “ephemeral,” meaning they do not flow consistently throughout the year. RELATED: Revised Clean Water Rule leaves out most of NM’s waterways

Wheeler described the 2015 rule as an “egregious power grab” and said its repeal is part of a wider policy shift for regulating water at the agency. “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide,” Wheeler said in a statement.

Clean Water Act

Revised Clean Water Rule leaves out most of NM’s waterways

By |

Rachel Conn was in a state wetlands meeting Tuesday when she heard the news: The Trump administration had released its revised Clean Water Rule. For Conn, who has been working on issues related to the rule for more than 15 years, it was another twist in a legal and administrative saga that could leave most of New Mexico’s streams and wetlands without clean water protections. Under the new rule issued Tuesday, almost 60 percent of the waterways and wetlands nationwide would no longer be protected under the Clean Water Act. The new rule says streams that flow only in response to snowmelt or rainfall—“ephemeral” streams—would not be protected. It also questions removing protections from “intermittent” streams, or those that have a baseflow from groundwater recharge, but may not run above-ground throughout the entire year.

American Civil Liberties Union Regional Center for Border rights

Federal politics unite unlikely coalitions at the border

By |

The last two years of the Trump administration have been challenging for both environmental and immigrant advocacy groups at the border. Renewed calls to build a $25 billion wall that would cut through important wildlife habitat for species like the jaguar and the Mexican gray wolf, combined with the impacts of ramped-up militarization in border communities, have increasingly united conservationists and social justice activists. This newfound collaboration is especially strong in Las Cruces, in southern New Mexico. This story originally appeared at High Country News and is reprinted with permission. Here, in the Borderlands, groups like the faith-based organization NMCAFé and the American Civil Liberties Union Regional Center for Border Rights have long worked on immigration reform and fought for immigrant rights at detention facilities.

Clean Water Act

EPA’s waters and jobs, plus climate change and Cape Town’s dwindling water supplies

By |

This week, the U.S. Environmental Protection Agency announced that along with the U.S. Army Corps of Engineers, finalized the “Waters of the United States” applicability date. Last March, President Donald Trump directed the agencies to review the “Clean Water Rule” also known as the Waters of the U.S. Rule, which was finalized in 2015 as a way to clarify confusion over parts of the Clean Water Act. 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.

Scott Pruitt

What it’s like inside the Trump administration’s regulatory rollback at the EPA

By |

Betsy Southerland knew something was wrong the moment she walked into her office at the Environmental Protection Agency. It was 8 a.m. on a Thursday in April and already, her team was waiting at her door, computer printouts in hand. For months, staffers in the Office of Water had been in help-desk mode, fielding calls from states implementing a federal rule that set new limits on water-borne pollution released by coal-fired power plants. The rule on what is known as “effluent” had been hammered out over a decade of scientific study and intense negotiations involving utility companies, White House officials and environmental advocates. The EPA had checked and rechecked its calculations to make sure the benefits of the proposed change outweighed the cost to the economy.

Environment

Trump orders review of Clean Water Rule

By |

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.

Environment

The launch of our new environment beat

By |

After more than a decade of freelancing for magazines, newspapers and radio, I’m settling down. Beginning this month, readers of NM Political Report will start seeing more news stories about water, environmental justice, public lands, wildlife, nuclear waste, climate change and energy. As much as I have loved working with different editors and teams over the years, I am relieved that NM Political Report has decided it needs to be covering statewide environmental issues regularly. During a time when issues like climate change, water and environmental regulations have become increasingly important, newspapers nationwide have cut their science and environment beats. On top of that, strapped newsrooms often don’t have the resources—or the subscribers—to justify covering issues that are so important to rural communities.

Featured

Obama admin finalizes sweeping water protection rule

By |

The Environmental Protection Agency and the U.S. Army Corps of Engineers finalized a rule that environmental groups say restores protections to streams and headwaters while Republicans called it another example of President Barack Obama’s executive overreach. Obama said that the action will help protect streams, lakes and other smaller bodies of water with connections to rivers and larger bodies of water that are already covered by the Clean Water Act. “This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” Obama said in a statement released on Tuesday. “My Administration has made historic commitments to clean water, from restoring iconic watersheds like the Chesapeake Bay and the Great Lakes to preserving more than a thousand miles of rivers and other waters for future generations,” he continued. Essentially the Waters of the United States rule, as it is known, formalizes what the Clean Water Act means for “navigable waters.”