From The Santa Fe New Mexican (Scott Wyland) via The Taos News:
U.S. regulators aim to repeal a contentious Trump-era rule that stirred fierce opposition from conservationists and many New Mexico leaders because it removed most of the state’s water from federal protection.
The Environmental Protection Agency’s head said the agency and the Army Corps of Engineers had determined the rule was causing substantial harm to water bodies and pointed to New Mexico and Arizona as among the states most affected.
The current rule, which has spurred a string of lawsuits, only protects waterways that flow year-round or seasonally and connect to another body of water.
It excludes as “ephemeral” storm-generated streams as well as tributaries that don’t flow continuously to another water body – disqualifying most of New Mexico’s waters. Unregulated storm runoff can carry contaminants into rivers used for drinking water, conservationists say.
Water advocates see the announced change as an encouraging move, but warned it will take time to repeal and replace the rule…
After the EPA states its intention to scrap “the dirty water rule” in the Federal Register, a 30-day public comment period will follow and then the agency can work to repeal it, said Rachel Conn, projects director for Taos-based Amigos Bravos.
Establishing a new rule will take considerably more time, Conn said, but in the meantime it’s crucial to get rid of a standard that is leaving most of New Mexico’s waters unprotected…
Conn and other critics of the current rule have worried it would nix the EPA’s oversight of heavily polluted runoff from Los Alamos County into the Río Grande – a prime source of drinking water – and that it might disqualify the Gila River from protection because that waterway runs dry before reaching the Colorado River.
“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” EPA administrator Michael Regan said in a statement.
The lack of protections is especially significant in arid states such as New Mexico and Arizona, where nearly every one of over 1,500 streams has been found to be outside federal jurisdiction, the EPA said in a news release.
Regan said the agency is committed to creating a “durable definition” of U.S. waters based on Supreme Court precedents, learning from past regulations and getting input from a variety of interested parties. The agency also will consider the impacts of climate change, he said…
New Mexico is one of just three states that has no authority from the EPA to regulate discharges of pollution into rivers, streams and lakes under the Clean Water Act, which leaves it at the mercy of whomever is in the White House, Conn said…
If the rule is repealed, the regulations will revert to more stringent ones enacted in 1987, said Charles de Saillan, staff attorney for the New Mexico Environmental Law Center…
Congress should intervene and create well-defined and permanent updates to the Clean Water Act to stop the political seesawing that happens every change of administration, de Saillan said.
Congressional action would be much better than having the U.S. Supreme Court make rulings on it, de Saillan said. The last high court decision on which waters merited federal protection was ambiguous, causing more confusion and legal battles, he said.