In May of this year, the Supreme Court sided with big polluters in its decision in Sackett v. EPA, rolling back decades of protections for our waterways under the Clean Water Act.
At issue in the Sackett case is the definition of waters of the United States (WOTUS), or those protected under the Clean Water Act. The decision removed protections for wetlands across the country, except in limited circumstances. It also throws into question the status of intermittent/ephemeral waterways and closed basins, which make up over 90% of New Mexico’s waters.
New Mexico’s Waters Threatened Once Again
Unfortunately, this isn’t the first time in recent years that the status of these waters has been left undefined due to federal changes in the definition of WOTUS. The 2020 Dirty Water Rule radically re-interpreted the Clean Water Act, excluding from protection streams that flow only during wet times of year. Because so many of New Mexico’s waterways are ephemeral, this ruling disproportionately affected New Mexico. Although the Dirty Water Rule was replaced in late 2022 with a rule from the Biden administration that largely restored previous clean water protections, the decision in Sackett upends that and continues a pattern of undermining the protection of New Mexico’s waterways.
It has never been clearer that the decisions of which waterways to protect must be kept right here in New Mexico by the people and communities who know and depend on these precious life sources. This past legislative session, New Mexico Wild successfully advocated for a $680,000 appropriation for the NM Environment Department (NMED) to begin the process of standing up its own surface water quality permitting program, keeping those important decisions within the state. Currently, New Mexico is one of only three states that leaves these permits in the hands of the Environmental Protection Agency (EPA).
Public Comment Period
NMED has released a survey to help understand New Mexicans’ viewpoints on this important issue. Please use your voice to speak up for our state’s streams and waterways today! The survey will close August 15th and we have included some talking points to help get you started below. You can also reach out to New Mexico Wild’s Senior Water Policy Analyst, Tricia Snyder (tricia@nmwild.org) with questions.
We suggest highlighting the following points in your comments:
- The Sackett decision has increased the urgency and NMED must move quickly to get a surface water permitting program set up.
- The back and forth over definitions of the waters of the US and changes in federal protections makes it clear that decisions on protecting New Mexico’s waterways must stay here in New Mexico.
- This back and forth has provided regulatory uncertainty for New Mexico’s businesses and economies and clarity is needed.
- It is estimated that over half of the vertebrate species known to occur in the state utilize aquatic and riparian habitats at some point over the course of their life cycle and this number jumps to over 80% when looking at only “sensitive and specially classified” vertebrate species, we must ensure these important habitats are protected.
- At the core of the Sackett decision is wetlands protections: it is clear that in addition to getting this surface water quality permitting program up and running as quickly as possible, we also need to investigate other opportunities to ensure our wetlands are protected for future generations.
