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.