Weak Links
To understand these changes, it helps to look to the East Coast, where the 64,000 square-mile Chesapeake Bay watershed touches six states and the District of Columbia. Decades of concerted effort and millions of dollars have helped clean up and protect its network of creeks, streams, rivers and wetlands that flow into the tidal bay.
Experts fear the new rule could undo some of that effort.
Chesapeake Bay wetlands in Maryland. Timothy Pohlhaus / CC BY-NC-ND 2.0
State Safeguards
Those states with stronger state-level environmental laws, however, will be less vulnerable.
California, for example, has enacted state laws that protect all its wetlands and ephemeral streams. That means the clean water rollbacks would be less damaging but it doesn't mean that California is entirely unaffected.
Federal funding that helps support water-quality protections in the state would be lost and just like in the Chesapeake watershed there's concern about waterways that cross into California from other states like Oregon, Arizona and even Colorado.
"Ephemeral streams across the Colorado River Basin states and Oregon contribute significant volumes of water to rivers flowing adjacent to and into California," said George Kostyrko, director of the Office of Communications for California's State Water Resources Control Board. "Millions of Californians and hundreds of thousands of acres of farmland in the Imperial and Coachella valleys depend on Colorado River water that will no longer have minimal federal protections."
Will the feds step in if one state's waters start to cause pollution in another? California officials aren't so sure.
"Generally, the Clean Water Act will still require federal agencies to follow state water laws," Kostyrko said. "We have grave concerns about how the federal administration could push boundaries here, though."
Costly Burden, Bigger Picture
The rule was sold to states as a way to boost their authority and give them more control over how waters within their boundaries are designated.
"All states have their own protections for waters within their borders and many already regulate more broadly than the federal government," EPA Administrator Andrew Wheeler said in a statement announcing the rule.
Unfortunately, that's not true for states like New Mexico.
"The premise that all states are capable of addressing water quality issues in their state is false," officials from the New Mexico Environment Department wrote in their public comments on the rule last year. "Not all states can implement a robust and successful water quality program without significant federal assistance."
Roose said they originally estimated that around 96% of New Mexico's waterways would lose federal protections. Since the final rule has been released, they're re-evaluating it and believe it may be slightly less, but the vast majority of the state's waterways would still fall outside the scope of federal jurisdiction under the new rule.
For a state with the second-worst economy in the United States, that poses some big problems.
New Mexico is already more reliant than most states on the federal government's help implementing Clean Water Act regulations. Under the Act certain programs, like the National Pollution Discharge Elimination System, which issues permits to regulate pollution discharges from large sources like mining operations, municipal sewage-treatment plants and big construction operations, can be relegated to states. But New Mexico is one of just three states where the federal government administers and enforces the program.
With the federal government now relinquishing regulatory authority to huge amounts of New Mexico's waterways, the state will need to find a way to fill those gaping holes to protect water quality a process that won't be easy, cheap or fast.
"If we already had a built-in program for permitting discharges to our surface waters, then we might be able to pick up that regulatory permitting slack with existing state and rules, like some other states are planning to do," said Roose.
She says the state will do all it can to leverage its groundwater program and other regulations as it begins to work with the legislature to find funding and build capacity for a new regulatory program. It's a process that would take a minimum of three to four years at best, she estimates.
Barring legal challenges that result in an injunction, the rule would be implemented in just a few months.
That means that for years some drinking-water sources will be more at risk, and so will wildlife. In New Mexico this includes imperiled species such as the Gila trout, Chiricahua leopard frog, Jemez salamander, Rio Grande silvery minnow and yellow-billed cuckoo.
A yellow-billed cuckoo in the Gila National Forest, N.M. Bettina Arrigoni / CC BY 2.0
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