Abstract
Nearly ninety percent of New Mexico’s rivers and streams potentially have been removed from federal protection under the Clean Water Act following the United States Supreme Court’s decision in Sackett v. EPA to substantially reduce what qualify as “waters of the United States.” Before this decision, many ephemeral streams, tributaries, and wetlands were protected by the Environmental Protection Agency. Permits are essential to protect not only the environment but landowners as well. The New Mexico Environment Department is in the process of developing its own surface water discharge permitting program, as the EPA’s jurisdiction contracted commensurately with the Supreme Court’s new definition of “waters of the United States.” The New Mexico Environment Department and water conservationists worry that without a permitting process, many bodies of water in New Mexico and the United States would be left unprotected, allowing unregulated discharge of harmful pollutants into waters on which the public relies for drinking water, agriculture, recreation, and ecological stability. But is requiring a permit enough to protect the waters of New Mexico? How would obtaining a permit through the state protect waters in New Mexico from those who, either intentionally or unintentionally, discharge pollutants into waters outside of New Mexico that flow into the state? Does the interpretation of “waters of the United States” in Sackett only apply to wetlands? This Note addresses the local problems created by the Sackett decision and offers possible solutions to the lack of protection for states like New Mexico with dry and arid climates. It proposes that it is not enough for the New Mexico Environment Department to create its own permitting process—to truly protect our most precious resource, Congress needs to correct the Court’s mistake and enact an improved definition of “waters of the United States” in the Clean Water Act itself. Congress cannot continue to ignore the reoccurring problem of the Court’s intrusion into environmental regulation. Leaving the interpretation of the Clean Water Act to the United States Supreme Court has proven to be a critical error. The time to act was decades ago, and the consequences of Congress’s inaction are at New Mexico’s doorstep.
Recommended Citation
Brittany Herrera,
Navigating Murky Waters: Strengthening Water Protections in a Post-Sackett Landscape,
54
N.M. L. Rev.
599
(2024).
Available at:
https://digitalrepository.unm.edu/nmlr/vol54/iss2/12
