EPA proposes removing ephemeral streams from Clean Water Act jurisdiction

Hannah Grover
Farmington Daily Times
A new proposal would remove arroyos from federal jurisdiction under the Clean Water Act.

FARMINGTON — Largo Wash near Blanco is dry most of the year. During monsoon seasons the arroyo resembles a river, one that carries debris into the San Juan River.

The wash is considered one of the longest dry washes in the world, stretching 68 miles from the continental divide to the San Juan River.

A new rule announced Tuesday by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers on Tuesday would remove ephemeral streams like Largo Wash from federal jurisdiction under the Clean Water Act.

This would leave states to regulate discharge into arroyos or other seasonal streams.

The move has been praised by some as a way to return power to the states and remove burdensome regulations. Others say the new rule, which rolls back protections on certain bodies of water, will have severe environmental and health consequences by allowing for increased pollution.

Executive order leads to rule change

The rule came as a result of an executive order signed in 2017 by President Donald Trump directing the EPA and corps of engineers to review the “Waters of the United States” definition that was created in Clean Water Rule of 2015.

The 2015 rule brought ephemeral and intermittent streams, as well as wetlands connected to them or adjacent to them, under the jurisdiction of the Clean Water Act. While the 2015 rule sparked the regulatory rollback, the new proposal would also remove some regulations put in place stretching back to the 1980s.

Amigos Bravos project manager Rachel Conn said Largo Wash would likely have been included in the jurisdiction of the Clean Water Act even before the 2015 rule because it flows into the San Juan River. Amigos Bravos is a river conservation organization based out of New Mexico.

The Glade Arroyo is pictured Friday in Farmington.

Conn said the new proposal could remove Largo Wash from Clean Water Act jurisdiction.

“For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways,” said EPA Acting Administrator Andrew Wheeler in a press release issued Tuesday. “Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

Tuesday’s announcement marked another President Barack Obama-era regulation that Trump’s administration is rolling back.

The EPA and the Army Corps of Engineers will have an informal webcast on Jan. 10 to discuss the rule. Once the rule is published in the Federal Register, there will be a 60-day public comment period.

In a press release from the EPA, American Energy Alliance President Thomas Pyle stated the definition of “waters of the United States” has been historically abused “to increase the size and scope of the federal government and violate the property rights of landowners under the guise of protecting our country’s waterways.”

He said the 2015 definition was so broad it “effectively stretched federal regulatory power to virtually every bit of water in the country.”

In the press release, U.S. Secretary of Agriculture Sonny Perdue stated the “Waters of the United States” rule is regularly pointed to by farmers and ranchers as an egregious rule that impedes the use of their own land and stifles productivity.

“Farmers and ranchers are exceptional stewards of the environment, and states have their own standards as well,” Perdue said. “This welcome action from the EPA and Army Corps will help bring clarity to Clean Water Act regulations and help farmers know where federal jurisdiction begins and ends.”

The Glade Arroyo crosses a road in Farmington during the 2013 monsoon season.

Backlash comes as regulations are rolled back

In a statement released by Deb Haaland, the newly elected congresswoman from New Mexico called Tuesday’s rule “one of the biggest attacks on clean water and the Clean Water Act in its history.”

Conn said the Tuesday announcement has two main changes that will impact New Mexico. These changes are exempting ephemeral or seasonal waterways from the definition of a tributary and requiring wetlands to have surface connections to other bodies of water. These changes could allow pollutants to be discharged into those bodies of water.

She explained that 90 percent of the state's waterways are either ephemeral or intermittent.

According to internal EPA slides obtained by E&E News through a federal records request, only 18 percent of streams in the arid western United States have continuous flow year round. About 35 percent are ephemeral, meaning they only flow as a result of precipitation.

Conn said the state also relies on wetlands to soak up snow melt during the spring runoff. This water is then released slowly over the course of the year.

“A lot of our wetlands are only connected to water bodies through sub-surface flow,” she said.

The rule will be opened to a 60-day comment period, however, Conn said if it does go through New Mexico will need to look at how it can change the state’s regulations to protect the waters that are losing protection.

“First of all, we need to stop this rule,” she said. “This rule is horrible for New Mexico.”

The 2015 Waters of the United States rule has never been implemented in New Mexico. Shortly after it was passed, Gov. Susana Martinez had a lawsuit filed that resulted in a preliminary injunction preventing the rule from being implemented.

“We do not have the benefit of the 2015 Clean Water Rule and now it looks like we’re going from bad to worse,” Conn said.

Hannah Grover covers government for The Daily Times. She can be reached at 505-564-4652 or via email at hgrover@daily-times.com.