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New EPA rule removes Clean Water Act protections for 90% of New Mexico waterways

September 7, 2023
Joanna Zhang, (573) 529-6027, jzhang@wildearthguardians.org
In This Release
#LivingRio, #LivingRivers, #PressStatement, #RioGrande
SANTA FE, N.M.— Last week, the Environmental Protection Agency (EPA) and Department of the Army announced a new rule amending the definition of “waters of the United States” to conform with the May 2023 Supreme Court decision in Sackett v. EPA. Waters of the United States (WOTUS) are waters protected under the 1972 Clean Water Act, and the devastating new rule will remove federal protections from an estimated 63% wetlands and 1.2 million to 4.9 million miles of ephemeral waters across the country.

In New Mexico, an estimated 90% of the state’s waters are ephemeral and intermittent streams. In the absence of Clean Water Act regulations, state protections are more important now than ever for temporary waters and wetlands fed by groundwater rather than surface water. 

“It is essential that New Mexico develop its own water quality permitting program in order to protect vulnerable intermittent waters, as well as wetlands across the state. Protecting these waters of the state is essential to protecting drinking water quality in the Rio Grande, as well as groundwater aquifers that provide drinking water for many New Mexicans across the state,” said Daniel Timmons, wild rivers program director with WildEarth Guardians. 

Developers and water advocates have battled for decades over the definition of WOTUS, which determines the regulatory scope of the Clean Water Act. Based on the recent Sackett v. EPA decision, the Clean Water Act can only apply to wetlands that are 1) adjacent to a WOTUS – that is, “a relatively permanent body of water connected to traditional interstate navigable waters” and 2) have “a continuous surface connection with that water.” 

In the arid Southwest, this new rule is particularly damaging because many streams don’t run year-round, meaning they are not “relatively permanent.” Also, groundwater plays an important role in supplying streams, rivers and wetlands with water, which would not qualify as a “continuous surface connection.” In contrast to the new rule, the prior federal standard protected wetlands if they had a “significant nexus” to major waterways, and that connection could be indirect or ecological in nature.

“The previous standard was much more sound, scientifically speaking,” said Joanna Zhang, wild rivers advocate with WildEarth Guardians. “Water flows aboveground and belowground, and sometimes temporarily, as in the case of ephemeral streams that only flow after precipitation events or intermittent streams that flow for a limited time when supplied by groundwater, which we see across desert landscapes like New Mexico. The new rule leaves many wetlands and inconstant streams vulnerable to discharged pollutants.” 

WildEarth Guardians, like many other conservation and environmental protection groups around the country, is deeply concerned by the impacts the new EPA rule will have on public health, endangered species, and the integrity of waterways and aquatic ecosystems in New Mexico and across the Western states in which we work. 

Rio Grande, New Mexico, WildEarth Guardians photo