Rachel Conn, Amigos Bravos Deputy Director
With Trump Dirty Water Rule thrown out, better state, federal safeguards needed
Many uncertainties surrounding the definition of “Waters of the U.S.” have plagued the regulatory landscape since 2001 and ultimately resulted in the Trump-era Navigable Waters Protection Rule. Also known as the “Dirty Water Rule,” the Trump administration’s rule has impacted New Mexico more than any other state in the nation. This is due to a combination of factors, including the high percentage of New Mexico’s waters that don’t flow year-round; the large portion of New Mexico’s waters that are found in closed basins such as the Mimbres, Tularosa, and Sacramento basins; and the fact that New Mexico is one of just three states that doesn’t have a state surfacewater-discharge program.
Due to federal interpretations of Supreme Court rulings, streams that don’t flow year-round and waters within closed basins no longer fall under federal protections. Without a state program in place to fill in the gaps left by these shrinking federal protections, New Mexico’s waters have been vulnerable to unregulated dumping of pollution.
Several weeks ago, a federal judge threw out Trump’s Dirty Water Rule, ruling that it could cause serious environmental harm and was legally and scientifically flawed. This is great news for New Mexico’s waterways and will restore Clean Water Act protections for many, but not all, of New Mexico’s rivers, streams, and wetlands.
The Biden administration is now moving forward with drafting a new water-protection rule. Clean-water advocates in New Mexico are calling for the administration to adopt a robust and durable rule that is rooted in science. In order to protect New Mexico’s rivers, streams, and wetlands, a new rule must include ephemeral waters (waters that don’t flow year-round); respect traditional agriculture; recognize the connections between groundwater and surface water; address tribal priorities; and be applicable for arid conditions.
We have now seen two decades of shifting and unpredictable federal clean-water protections, and New Mexico continues to suffer disproportionately, leaving at times over 90% of our waterways unprotected and vulnerable. Even with the new court ruling, New Mexico’s closed basins and many of our wetlands and playa lakes are still not federally protected, underlining the need for New Mexico to implement a state program to control the discharge of pollution into our surface waters. As a state, we should not be held at the whim of ever shifting federal priorities. We need to move quickly to implement and adequately fund a state surface-water discharge program to protect our water resources.
Featured image by Jim O’Donnell. The Río Fernando de Taos, among the high percentage of New Mexico surfacewater that went unprotected after Trump’s Dirty Water Rule went into effect. These waters will still be vulnerable to dumping until robust state and federal rules are passed