By Brian Sweeney
Siding with polluters, the U.S. Supreme Court turned back the clock 50 years and gutted Clean Water Act protections for communities, fish, and wildlife. These impacts will be felt by everyone who cares about clean water, healthy communities, and thriving populations of plants and animals, but the consequences will be particularly dire in places like New Mexico where the state’s precious surface water resources will be left virtually unprotected.
Defying legal precedent, the intent of the Clean Water Act, the best available science, and common sense, today the court struck down the well-established test for determining which surface waters are protected under the federal act, replacing it with a test that could exclude many streams and wetlands throughout the western U.S. from federal protection.
“In New Mexico, streams, lakes, and wetlands sustain our state’s culture, traditions, communities, wildlife and ecosystems, and economy, and must be protected,” said Western Environmental Law Center Senior Attorney Tannis Fox. “In Sackett v. EPA, the current results-oriented, activist majority of the Supreme Court has turned the Clean Water Act on its head, gutting federal protections for waters across the nation—but New Mexico and the arid western U.S. will be hardest hit. New Mexico’s Congressional delegation should lead the charge in Congress to restore Clean Water Act protections and the state of New Mexico should move swiftly to establish its own surface water permitting program to protect our state’s streams and wetlands.”
The purpose of the 1972 Clean Water Act is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Until today, courts and the EPA protected waters with a “significant nexus” to regulated waters. Waters regulated under the Clean Water Act generally are perennial rivers and streams, or waters that run continuously. Additional waters formerly protected with a significant nexus to these perennial streams include intermittent and ephemeral streams, waters that do not run continuously, and wetlands. In New Mexico, for example, intermittent and ephemeral streams represent over 93% of all streams in the state. These waters are often connected hydrologically and biologically to downstream perennial streams, and are critical to maintaining the health of these downstream waters by controlling flooding, filtering pollutants, supplying drinking water sources, and providing habitat for aquatic life.
The court, however, threw out the science-based significant nexus test and replaced it with a test that requires wetlands to have a continuous and visible surface connection to protected streams. In addition, the court limited protection to streams upstream of protected waters that are “relatively permanent.” These restrictive tests will exclude from federal protection many streams and wetlands that “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” making the decision especially devastating for arid states like New Mexico.
“Sackett v. EPA is just the latest example of the determination of the conservative majority on our nation’s highest court to overturn established legal precedent, ignore Congressional intent, and undermine the democratic process. Today’s decision is a big win for polluters and a terrible loss for the scarce surface waters of the western U.S. and the communities and ecosystems they support,” said Fox.
Brian Sweeney is Communications Director with Western Environmental Law Center.