According to the New Mexico State Wetland Summary, we used to have about a million acres of wetlands. We have lost 52%. Now only 0.6% of our land base is wetland. In our high desert communities those remaining should be considered our crown jewels. They have always been vulnerable, but with the new Supreme Court ruling, Sackett vs U.S. EPA, what few protections most of our fragile drought-prone wetlands had have been lost.
This politically motivated decision, which disregards any scientific understanding of wetland habitats, decimated many of the protections available under the Clean Water Act by revoking protections from wetlands that lack a “continuous surface water connection to larger streams, lakes and rivers. As Rachel Conn of New Mexico’s Amigos Bravos said, “we don’t really know how much protection we have lost, but the Supreme Court rule puts 93% of our rivers and streams at risk — it is uncertain whether they will have protection.” That is because some 93% of New Mexico’s waterways are intermittent, including many of our ephemeral arroyos, cienegas, effluent-dependent streams, playa lakes and other man-made reservoirs, waterway and canals. The court did not interpret the law, as is its duty; instead it rewrote the law to serve special interests.
The effect on New Mexico will be devastating. We have the law that could be used to protect our wetlands, but we do not have an enforcement mechanism. Our state constitution says, “the appropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.” We do require permits for certain groundwater discharges, but we do not have a permitting system for surface water, including wetlands. Instead we have regulated our wetlands through the authority provided by the Clean Water Act and regulatory authority provided by the U.S. Army Corp of Engineers permitting process.
Even the Rio Grande runs dry in certain areas at times. Until we get regulations in place, many of our remaining wetlands and waterways are vulnerable to the rapacious actions of developers, ranchers and miners. We simply cannot let our few remaining wetlands be drained and filled.
To make matters worse, polluters may no longer need to have a permit to discharge hazardous materials into many of our watersheds. The N.M. Environment Department reports that our state has some 121 individual dischargers, including Los Alamos National Laboratory. As of April, according to Danielle Prokop of Source NM, there were 3,955 permittees. Twenty-three are for feedlots; most are for storm water discharge permits.
And since some large infrastructure projects like pipelines will no longer need Clean Water Act permits or environmental reviews, states may no longer be able to object even if proposed projects will harm our waterways and water users.
It is very clear this ruling puts us all at great risk. This issue is magnified by climate change and the resultant droughts and aridification we face. As NMED Department Secretary James Kenny said, “The U.S. The Supreme Court’s decision amounts to cultural appropriation for New Mexico residents and tribal members, stripping us of our connections to our most precious natural resource. This comes at a time when climate change demands even greater protection of ephemeral streams, wetlands and groundwater. While this decision is devastating to water-starved Western states, we will not be deterred from our mission to protect water for current and future generations.” And, as the governor said, “In a desert state like ours and because of a drying climate, all of our state’s precious water resources must be afforded robust legal protections.”
But it is not that easy. It takes legislative and administrative action, money and EPA approval. John Roderick, NMED Water Protection director, told the state Water and Natural Resources Committee in June that to get surface water permitting in place may take up to six years at current budget levels. We need to mandate a faster process and give it a budget priority. Six years is too long. And let’s not pretend this can get done in a 30-day session. We need a special session to tackle this issue and to address other long-deferred environmental matters. And we need immediate action on stop-gap measures until new regulations can take effect. How about some creative thinking? Can we regulate our surface water and wetlands under any current authority? We were caught unprepared. We need to act like it’s the emergency it is.
Published on July 10, 2023, in the Albuquerque Journal.
© Judith Polich. All Rights Reserved. May be republished with author’s written consent and proper attribution.