New Mexico seeks to withdraw from federal water lawsuit

March 22, 2019

The New Mexico Environment Department wants to withdraw from a lawsuit that challenges a U.S. Environmental Protection Agency rule initiated during the last term of President Barack Obama that significantly increased the amount of surface water subject to federal protections.

However that lawsuit, which New Mexico joined during the administration of Republican Gov. Susana Martinez, might soon become moot.

The administration of President Donald Trump has proposed rescinding the previous administration’s “Waters of the U.S.” rule.

“New Mexicans understand the value of water as a natural and cultural resource,” state Environment Department Secretary James Kenney said in a statement Thursday announcing the plan to drop out of the federal litigation. “Ephemeral streams, wetlands and groundwater are equally as important as the Rio Grande River. All of our state’s precious water resources must be afforded robust legal protections.”

The EPA is accepting public comments on newly proposed changes to the rule through April 15. The state Environment Department is working on comments to submit to the federal agency, the news release said.

Plaintiffs in the suit challenging the 2015 rule include about a dozen2 mostly Western states and several business and agricultural organizations. Earlier this month, Michigan withdrew from the litigation.

The Waters of the U.S. rule was controversial from the start. Congress voted to block it in 2015. Later that year, just hours before the rule was to take effect, a federal judge in North Dakota issued a preliminary injunction to block it in the states involved in the case. That was followed by a ruling from the Cincinnati-based 6th Circuit Court of Appeals that blocked the rule nationwide.

But in January 2018, the U.S. Supreme Court overturned the 6th Circuit Court, ruling the appeals court didn’t have jurisdiction to block the water rule.

New Mexico rivers such as the Rio Grande and the Pecos are fed by small tributaries that much of the time are dry. Before the rule change, industrial activity near those streams — construction, for example — didn’t have to comply with federal regulations for stormwater pollution. Yet a sudden storm could send chemical runoff from a work site rushing down a formerly dry stream and into the river.

A 2014 state Environment Department study of hydrology data found that 93.6 percent of New Mexico’s surface waters are intermittent or ephemeral.