At the end of last year, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released the final revised definition of the “Waters of the United States” (WOTUS) rule, clarifying which waterbodies are subject to jurisdictional protection under the federal Clean Water Act.
Taos-based water protection group Amigos Bravos said the new rule amplifies the need for the New Mexico Environment Department to create its own, state-level program for issuing surface water discharge permits.
“New Mexico is only one of three states that does not have its own surface water permitting program, meaning New Mexico relies on the EPA to permit point-source discharges and does not have any authority to permit on waterways not classified as a WOTUS,” Amigos Bravos, a Taos-based water protection group said in a press release. “While the new definition aims to reverse uncertainty and restore protections originally intended by the Congress with the Clean Water Act, it disproportionately impacts New Mexico due to its large percentage of ephemeral/intermittent streams and closed basins such as watersheds and streams that do not feed traditional navigable waterways.
“This magnifies the need for New Mexico to create its own surface water permitting program and secure primacy for regulating discharges to the waters in our state,” the Amigos Bravos release added, noting that the Environment Department has started the process of creating such a program, for which it received a special appropriation of $190,000 from the legislature in 2022. The funding, however, was a one-time appropriation.
This year, the department included a $680,000 line item in its budget request to the legislature, which would provide the necessary funding to establish and administer a state-level “surface water discharge program that meets federal requirements to allow NMED to issue permits.”
In a statement to the Taos News, Environment Department Communications Director Matthew Maez said, “The new WOTUS rule reinstates stronger safeguards that had been previously removed, increasing protection of surface water in New Mexico. These changes follow federal administration changes and underscore the urgency for action in developing a surface water discharge permitting program in New Mexico. A program like the one being proposed moves the decision-making process from the federal government to the state, overseen by professionals who best know and understand the value of these resources in New Mexico. The New Mexico Environment Department is committed to the protection of water in our state.”
“We are strongly advocating for NMED’s special appropriation request of $680,000 in their 2023 budget which would directly support the ongoing creation of this program,” Amigos Bravos said in its release. “By continuing to support its development, New Mexico can finally take a leadership role in protecting our surface water quality and remove its reliance on federal policies which continue to fluctuate and do not adequately protect the watersheds of New Mexico.
In a note to legislators included with the fact sheet, Environment Secretary James Kenney said his department is underfunded.
“We have not kept NMED’s budget in pace with state revenues,” Kenney said. “Topics and issues related to pandemics, wildfires, floods, nuclear waste, PFAS, border and tribal issues, and the pursuit of new federal funds, etc. are largely unfunded activities that continue to stress an already stressed workforce and under resourced agency.
“The Environment Department has one of the most complex budgets in state government, [with] over 125 restricted funds spanning four divisions, 16 bureaus and four offices,” Kenney added. “Over 80 percent of this department’s funding sources are for non-discretionary duties related to core functions like permitting and compliance programs.”
The scope of waterbodies protected by the Clean Water Act has fluctuated over the past eight years and was the subject of fierce debate among environmental advocates and business and agricultural communities during the presidential administrations of Barack Obama and Donald Trump. Obama sought to expand the overall type and quantity of waters subject to the federal law, while Trump reduced the scope of the law.
The new rule, which will go into effect 60 days after being published in the Federal Register, marks a return to the uses the pre-2015 WOTUS definition as its foundation aims to correct confusion in jurisdictional protections created by rulings of the agencies and courts in 2015, 2019 and 2020.
The final rule restores essential water protections that were in place prior to 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters, as well as upstream water resources that significantly affect those waters, according to an EPA press release. As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies and downstream communities.
“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” EPA Administrator Michael Regan said in the release. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”
The new WOTUS rule provides jurisdiction over waterbodies that are considered traditional navigable waters (large rivers and lakes used in interstate or foreign commerce), territorial seas (seas that extend 3 miles out from the coast), interstate waters (streams, lakes and wetlands that cross or form part of state boundaries), impoundments (reservoirs), tributaries (branches of waterways that flow into traditional navigable waters, territorial seas, interstate waters, or impoundments of jurisdictional waters and meet either the relatively permanent or significant nexus standards), adjacent wetlands (next to or abutting jurisdictional waters), and additional waters that meet either the relatively permanent or significant nexus standards.
The rule also maintains longstanding activity-based permitting exemptions provided to the agricultural community by the Clean Water Act. There are eight exclusions codified under the new rule which aims to protect economic activities on converted cropland, wastewater treatment systems, ditches, artificially created irrigated areas and lakes and ponds, artificially reflected pools or swimming pools, water-filled depressions, and swales & erosional features.