New Mexico Tribes Contest Trump Administration Rule Weakening Clean Water Protections

The Pueblo of Laguna and the Pueblo of Jemez filed suit against the United States Environmental Protection Agency (EPA), the Army Corps of Engineers (Corps), and the agencies’ leaders March 26. The civil complaint alleged that a Trump era modification removes federal water pollution protections from streams and waterbodies that the pueblos use to survive in violation of the Clean Water Act (CWA), the Administrative Procedure Act, and the federal trust responsibility toward tribes.

The filing explained that the pueblos, federally recognized tribes, use waters that flow through their lands for domestic and agricultural purposes, as well as cultural and ceremonial practices. They allegedly depend on the cleanliness of these “ephemeral streams” and other water bodies to sustain their populations.

The complaint recounted that in 2017, then-President Donald Trump issued an executive order directing the EPA and the Corps to repeal the CWA’s 2015 definition of “Waters of the United States” (Clean Water Rule) and consider replacing it with a narrower regulation employing the reasoning of former Justice Antonin Scalia’s plurality opinion in a 2006 U.S. Supreme Court case, Rapanos v. United States, 547 U.S. 715 (2006). In 2019, the agencies repealed the Clean Water Rule and, in 2020, replaced it with a much more limited rule that the pueblos claimed disregards established law.

In particular, the pueblos alleged that the repeal and the 2020 Clean Water Rule are “inconsistent with both the CWA’s objective of ‘maintain(ing) the chemical, physical, and biological integrity of the Nation’s waters’ and the Rapanos significant nexus test.” The complaint explained that the repeal and 2020 Clean Water Rule “remove CWA protections from 79% to 97% of stream miles in the Pueblo of Laguna … (and) 94% of stream miles in the Jemez watershed and 87% of stream miles on Jemez Pueblo trust lands.”

Furthermore, the pueblos argued they will alone be charged with implementing water pollution control programs at their own expense. This is an onerous ask, the plaintiffs claimed, because they “do not have the financial or administrative resources or capacity to administer these programs themselves.” In addition, the complaint stated that the pueblos rely on the federal jurisdiction of the CWA for protection from upstream pollution.

The plaintiffs contended that the repeal and 2020 Clean Water Rule create an “imminent risk of the degradation and destruction of the Pueblos’ waters and would harm the Pueblos’ agriculture, as well as cultural and religious practices.” The complaint requested that the court vacate and set aside the repeal and 2020 Clean Water Rule and return to the post-Rapanos case-by-case application of the “significant nexus” test.

The pueblos are represented by the University of New Mexico Law School Clinic, the Pueblo of Laguna by its own counsel, and the Pueblo of Jemez by Van Amberg Rogers Yepa Abeita & Gomez LLP.