Steps Taken to Strengthen Federal and State Clean Water Protections

Steps Taken to Strengthen Federal and State Clean Water Protections

Representative James Oberstar, of Minnesota, brought forward a bill in the U.S. House of Representatives to clarify the jurisdiction of the Clean Water Act. House Bill 2421, or the Clean Water Authority Restoration Act, would ensure that all "waters of the United States" that have been covered by federal protections under the Clean Water Act would retain traditional protection. The bill has been co-sponsored by 157 House members, including New Mexico Representative Tom Udall.

The Clean Water Act, passed in 1972, is the major federal mechanism for protecting our Nation's surface waters. Although a federal law, the Clean Water Act establishes water quality protections by coordinating with each state. In New Mexico, surface water is also protected by the State’s Water Quality Act. By exercising authority under both laws, New Mexico, with EPA approval, establishes water quality standards that protect surface water from unacceptable pollution.

Proponents of the Clean Water Authority Restoration Act say that recent U.S. Supreme Court decisions have eroded the jurisdiction of the Clean Water Act and created uncertainty about its scope. In particular, the definition of surface waters has been interpreted to excluded bodies of water which do not cross state lines and isolated waters which are formed from snowmelt, rainfall and storm water runoff. In New Mexico, this would remove protection from 90% of the miles of streams and all of the closed basins, which constitute 40% of the state’s land area, and playa lakes.

In 2005, the New Mexico Water Quality Control Commission revised New Mexico’s definition of surface water to afford all the State’s waters the same level of protection and ensure New Mexico’s ability to protect water against pollution, despite efforts to weaken the federal Clean Water Act.

However, a consortium of industry, including the New Mexico Mining Association, New Mexico Home Builders Association, New Mexico Oil and Gas Association, New Mexico Cattle Growers Association, New Mexico Wool Growers, Inc., Chino Mines Company and Phelps Dodge Tyrone, Inc., challenged the Commission’s decision in the New Mexico Court of Appeals. The challenge would have effectively carved out a loophole, exposing most of New Mexico’s waters to unregulated dumping of pollutants.

Amigos Bravos, a river conservation organization, organized an alliance with several other groups, including the Gila Resources Information Project, New Mexico Trout, New Mexico Acequia Association, 1000 Friends of New Mexico, and the Sierra Club, to intervene in the lawsuit on behalf of the State. The groups were represented by the Western Environmental Law Center. The New Mexico Court of Appeals recently upheld the State’s right to protect all its surface waters.

Rachel Conn, of Amigos Bravos, said, "Now that we have defended New Mexico's right to protect New Mexico's waters at the state level, we need to ensure that the Federal Clean Water Act is restored to protect all the waters that it historically protected. The Clean Water Authority Restoration Act will fix the problems with the Clean Water Act and ensure that all New Mexico's waters as well as thousands of miles of stream nationwide are protected."

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