Two New Mexico tribes have sued the Environmental Protection Agency (EPA), challenging the revision of federal rules regarding streams and waterways, saying the changes violate responsibility to Native American Tribes.
The Pueblo of Laguna and Pueblo of Jemez are the latest Tribes to confront the decision by the Trump administration’s Navigable Waters Protection Rule (NWPR) that took effect June 22, 2020.
The rule established in 2020 changed federal regulations that define “navigable waters” under the Clean Water Act (CWA). The CWA prohibits discharges of pollutants from point sources to “navigable waters,” also referred to as “waters of the United States” (WOTUS), unless permitted by either the EPA or the Army Corps of Engineers.
The Pueblos argue the 2020 rule ignores the U.S. government’s trust responsibilities to Indian Tribes and violates the Administrative Procedure Act (APA) and intent of the CWA. The Pueblos state the waters are used for irrigation and “high water quality is essential to day-to-day life, as well as cultural and religious practices.” The Pueblos also said the 2020 rule strips protections from ephemeral streams and wetlands, which comprise 79-97 percent of streams in Pueblo of Laguna and 94 percent of streams in the Jemez watershed.
“Water is the lifeblood of the Pueblo community and we are committed to protecting it for Laguna, our neighbors and future generations,” said Marvin Trujillo, Tribal secretary of the Pueblo.
The Pueblo of Laguna is located approximately 10 miles west of Albuquerque, NM, and encompasses 500,000 acres. As of 2020, approximately 4,800 members of the Laguna Pueblo live within the reservation boundaries, and there are about 8,900 total enrolled members. The modern-day Pueblo of Jemez is located approximately 40 miles northwest of Albuquerque, and encompasses more than 89,000 acres. The Pueblo of Jemez is home to more than 3,400 enrolled Tribal members and is historically linked to the Pueblo of Pecos.
According to the lawsuit, the Pueblos are asking for the court to repeal the 2020 Navigable Waters Rule and “return to the post-Rapanos case-by-case application of the ‘significant nexus’ test.” The significant nexus test resulted from the Supreme Court ruling in the case of Rapanos v. the United States. Justice Anthony Kennedy ruled that a wetland or non-navigable water lies within the scope of the CWA’s jurisdiction if it bears a “significant nexus” to a traditional navigable waterway.
According to the EPA, a nexus exists where the “wetland or waterbody, either by itself or in combination with other similar sites, significantly affects the physical, biological, and chemical integrity of the downstream navigable waterway.”
Regan testimony
EPA Administrator Michael Regan testified before the House Appropriations subcommittee in April that the agency would not return to the Obama-era’s broad definition of WOTUS under the CWA.
The Biden administration is reviewing the rule and intends to craft a rule that is “inclusive” and “forward-looking.” Regan told the subcommittee that the agency plans to involve stakeholders from agriculture and environmental communities to “look at the lessons learned and how we can move forward.”
“Learning from the lessons of the past, we don’t have any intention of going back to the original Obama Waters of the U.S. verbatim and we don’t necessarily agree with everything that was in the Trump administration’s version as well,” Regan testified. “We’ve learned lessons from both, we’ve seen complexities in both, and we’ve determined that both rules did not necessarily listen to the will of the people.”
Regan said since his confirmation he has toured the country talking with stakeholders, and concluded the “agriculture community is not monolithic,” with no two farms or ranches the same and “we’ve got to think about what the appropriate way to move forward is.”
In addition to the case by the Pueblos, several lawsuits challenging the Trump administration’s NWPR have been on hold while the Biden administration reviews WOTUS. The Navajo Nation and the state of New Mexico filed a similar case in 2020. Last May, New Mexico Environment Secretary James Kenney warned that NWPR would “devastate New Mexico’s scarce and limited water resources.”
A case in the U.S. District Court for the District of New Mexico filed by the New Mexico Cattle Grower’s Association remains stayed until June 1. The group initially filed the lawsuit in November 2019, challenging the 1986 regulation. A lawsuit in the U.S. District Court for the District of South Carolina filed by environmental groups has been stayed, but the groups filed a motion to lift the stay.
The suit was filed in 2019, asking the court to vacate the NWPR. A pending motion to lift the stay was filed in the U.S. District Court for the District of Colorado after the 10th Circuit ruled against Colorado for halting the implementation of NWPR. — Charles Wallace, WLJ editor
