The 2020 rule weakens or altogether eliminates federal Clean Water Act protections for ephemeral and intermittent streams, which make up nearly all the water in New Mexico. The two Pueblos are jointly represented in this legal action by the UNM Clinical Law Program.
The Pueblos argue, in the lawsuit, that the 2020 rule ignores the U.S. Government’s trust responsibilities to Indian tribes and violates the Administrative Procedure Act and intent of the Clean Water Act. The 2020 rule strips federal protections from a significant proportion of streams and may hamper the Pueblos’ efforts to regulate upstream polluters that affect waters on their lands. The Pueblos joined a list of other challengers to the 2020 rule, including the Navajo Nation and the State of New Mexico.
According to the New Mexico Environment Department, under the 2020 rule, at least 89 percent of the state’s rivers and streams and nearly 40 percent of the state’s wetlands may lose federal regulation and protection from pollution. Although the Biden Administration has signaled that it may seek to repeal the Trump rule, the repeal process will take time, which may leave Pueblo waters unprotected as long as the rule remains in place.
“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.
Clinical law students from UNM’s Southwest Indian Law Clinic (SILC) and Natural Resources and Environmental Law (NREL) Clinic assisted attorneys from the Pueblos in preparing the suit.
“During the last two semesters, I had the opportunity to work with several students dedicated to honoring tribal sovereignty and preserving water resources,” said Jessica Martínez, advanced clinical law student. “I am hopeful that our effort will lead to positive change in the law because water is vital to Pueblo life. Our work serves as a reminder that the government must live up to their obligation and protect water for generations to come.”
School of Law Associate Dean Serge Martinez, who oversees the school’s Clinical Law Program, said the partnership between the Clinical Law Program and the Pueblos in this effort is “a big deal” for the program – and for the school’s student attorneys.
“We are delighted to be able to serve the Pueblos of Jemez and Laguna on this crucial issue through this close collaboration between SILC and NREL,” he said. “The trust and confidence placed in SILC and NREL by the Pueblos of Jemez and Laguna are a testament to the years of outstanding work of our Clinical students and supervisors representing important causes and clients in New Mexico. For our student attorneys, the chance to represent clients on a case of this scope and magnitude while still in law school and to work under the expert supervision of professors in both SILC and NREL is an invaluable learning experience.”
The Clean Water Act requires federal agencies to protect waterways and waterbodies from pollutants, and it includes programs requiring all entities discharging pollutants or adding fill to waters to have permits. The law requires federal agencies to protect “the waters of the United States,” or WOTUS, but it does not define WOTUS.
Until 2019, the EPA and the Corps defined WOTUS broadly, including many streams that do not have water year-round. The Trump Administration’s 2020 rule narrowed the definition to remove protection for most streams that do not run year-round. As such, EPA and the Corps may no longer require permits for pollution or fill into unprotected streams in New Mexico and on Pueblo lands, such as the Rio Puerco.
Critically, however, the Pueblos may no longer be able to regulate waters outside their jurisdictions that affect waters within their jurisdictions. Under the previous rule, the Clean Water Act allowed Indian tribes to establish water quality standards for waters on their lands that EPA would enforce upstream. Now, EPA and the Corps may no longer administer or enforce against violations into unprotected streams — those not deemed to be “waters of the United States” — on and off Pueblo trust lands, leaving the Pueblos at risk of upstream pollution that will flow into their lands after every significant snow and rainfall.
“This is why I came to law school, to fight good fights like this,” said Christopher Hall, third-year law student. “Working with this incredible team of Pueblo leaders, student attorneys, and the faculty attorneys here at UNM Law School to protect our waters is the crowning moment of my law school career.”
UNM School of Law students from the Southwest Indian Law Clinic (SILC) and Natural Resources and Environmental Law (NREL) Clinic drafted the 62-page complaint over the course of two semesters. In addition, students from other clinic sections assisted in preparing the complaint. The Pueblo of Laguna is additionally represented by in-house counsel Kenneth Bobroff, Colleen Adams and James Burson. The Pueblo of Jemez is additionally represented by legal counsel David Yepa. The SILC supervising attorney for the complaint is Professor Samuel Winder, a citizen of the Southern Ute Indian Tribe, a former federal prosecutor and a former tribal attorney for the Southern Ute Indian Tribe. The NREL Clinic efforts were overseen by Professor Gabriel Pacyniak, who previously managed the climate change mitigation program at the Georgetown Climate Center, and Professor Cliff Villa, who served for 22 years as legal counsel for the U.S. Environmental Protection Agency.
“Communities need clean water to survive. This is especially true in New Mexico, where Pueblo communities have so little water to begin with,” said Professor Cliff Villa, NREL clinic supervising attorney. “The Trump rule disregarded science, ignored the law, and placed Pueblo communities in jeopardy. That is why we are prepared to fight on behalf of our Pueblo clients to protect their water resources and their ways of life.”
Celebrating its 50th year, the UNM Clinical Law Program is consistently recognized as one of the top programs in the nation. It is a required component of a legal education at the UNM School of Law. Students represent clients from the community with supervision by law faculty. The Program consists of five sections:
- Community Lawyering Clinic
- Child & Family Justice Clinic
- Economic Justice Clinic
- Natural Resources & Environmental Law Clinic
- Southwest Indian Law Clinic.