Laguna and Jemez pueblos are suing the U.S. Environmental Protection Agency to challenge a Trump-era water rule that slashed federal regulations for polluted streams and runoff flowing into rivers such as the Rio Grande.
It’s the latest legal challenge to a rule former EPA Director Andrew Wheeler created to limit the navigable waters that qualify for federal protection.
These include waterways that flow year-round or seasonally and connect to another body of water.
Wheeler’s rule excludes as “ephemeral” storm-generated streams as well as tributaries that don’t flow continuously to another water body. Unregulated storm runoff can carry contaminants into rivers used for drinking water, conservationists say.
The rule’s impact on the two pueblos is serious because these communities depend on clean water not only for daily household use but for agriculture, fishing and ceremonies, said Cliff Villa, associate professor and supervising attorney for the University of New Mexico’s Natural Resources and Environmental Law Clinic.
“Water on the pueblos is used for every imaginable purpose,” Villa said. “Any contamination can interfere with any of those purposes. If you’re not sure your water is clean, would you be willing to expose yourself to it? Would you be willing to expose your children to it?”
Under Villa’s guidance, a group of law students drafted the 65-page complaint with the aim of persuading the federal courts to vacate the rule.
If the rule were vacated, the EPA could go back to the Obama-era Clean Water Rule or turn to a collage of court rulings on water laws, Villa said.
“In any event, it is certainly better than the Trump rule,” he said, which excludes waters from regulation.
EPA spokeswoman Cathy Milbourn said the agency wouldn’t comment on pending litigation. She also declined to comment on the water rule itself.
Rachel Conn, projects director for Amigos Bravos, a Taos-based water advocacy group, said the new lawsuit “is incredibly significant. The tribes of New Mexico are very much impacted.”
Both Villa and Conn are confident the Biden administration eventually will overturn the rule.
But repealing and replacing an EPA policy takes time because such actions must go through a long public process, they said.
The Clean Water Rule took the Trump administration three years to undo, Villa said, and it could take just as long to rescind this rule.
A legal challenge could be much swifter in nullifying a rule that is now leaving waters unprotected, not only in the pueblos but throughout New Mexico, he said.
Laguna Pueblo is downstream from the Grants mining district, which has heavy uranium contamination, Villa said. Stormwater can carry pollutants from the site to the Rio Puerco, a tributary flowing through the pueblo.
It’s a perfect example of why removing federal oversight from polluted storm runoff is a bad idea, he said.
Conn said it’s also important to retain federal pollution permitting of Los Alamos runoff. Tests have shown it contains toxins such as mercury, copper, nickel and cyanide, as well as radiation and polychlorinated biphenyls, commonly known as PCBs.
The state Environment Department has pegged PCBs, a carcinogen, at 14,000 times the level deemed safe for human health in Sandia Canyon and 11,000 times the limit in Los Alamos Canyon.
Storms can wash these contaminants into the Rio Grande, a prime source of drinking water, Conn said.
Amigos Bravos joined two conservation groups last year in filing their own lawsuit challenging what Conn calls “the dirty water rule.” The group also has created a new website, NMWaters.org, which illustrates the importance of federal protections of New Mexico’s limited water resources.
Federal rules are crucial because New Mexico is one of only three states that have no authority to regulate polluted discharges into rivers, streams and lakes under the Clean Water Act, Conn said.
The EPA rule has disproportionately hurt New Mexico because an estimated 90 percent of its waters can be deemed ephemeral, Conn said, which means they are now unregulated.
Those include the Gila and Santa Fe rivers because they have dry stretches and don’t flow continuously to a major waterway, she said. New Mexico’s many basins that don’t directly link to other waters also are disqualified, she said.
Seasonal waters that dry up and recharge during certain times of “a typical year” are protected, but those that flow irregularly are not, Conn said, arguing that creates a blurry line in New Mexico.
“From one year to the other, it could be massively different,” she said. “There’s so much uncertainty about what’s protected and what’s not.”