Source: Albuquerque Journal, December 13, 2012
Posted on: http://envfpn.advisen.com
Peter and Francoise Smith just wanted to clean up the 20 acres they purchased 19 miles southwest of Santa Fe in 2005 and settle into retirement in the dream home they’ve built.
To their surprise, that put them at odds with the federal government.
All because they cleared some debris out of an arroyo behind their home, off N.M. 14.
“People dumped garbage down there, and there was a beetle infestation that took out a lot of the pinon,” Peter Smith said, adding that the estimated 600 dead trees presented a fire hazard. “The salt cedar was getting to the point it was so thick you couldn’t walk through it. So I cleaned up as much as I could and tried to maintain it with a tractor and a Bush Hog.”
Then one day they got a certified letter from the U.S. Army Corps of Engineers telling them that they violated the Clean Water Act because the cleanup they did on about 150 yards of the arroyo was done without a permit.
“We were shocked,” Peter Smith said of the Notice of Violation they received in June 2011. “We thought there was some mistake.”
So Smith composed a letter in response, explaining the work he had done, why he had done it and expressing his dismay that the arroyo that ran behind his house was considered by the Corps as “a water of the United States.”
“Regarding your questions regarding jurisdictional waters on your property,” the Corps’ response read, “we have only made a jurisdictional determination that Gallina Arroyo is a water of the United States, based upon our view of available aerial photographs, maps and our observations from adjacent property.”
The letter goes on to say that the Corps doesn’t plan to take any further action against the Smiths, but if they planned to continue their cleanup they would need to acquire a permit. If they didn’t, they could face “legal action, including applicable penalties and fines,” the letter said.
Instead, the Smiths initiated legal action.
Jurisdictional debates
On Tuesday, attorneys with the Pacific Legal Foundation, by its own description a donor-supported, nonprofit legal watchdog organization that litigates for limited government property rights and a balanced approach to environmental regulations, filed a lawsuit in U.S. District Court in Santa Fe against the Corps on the Smiths’ behalf.
Jennifer Fry, an attorney with the Sacramento, Calif.-based foundation, said the case could prove precedent-setting.
“We’re aiming to stop federal regulators from becoming a national zoning board with unlimited control over land use, from coast to coast,” she said. “They (the Corps) must be subject to court review when they make a jurisdictional determination that someone’s property is covered by the Clean Water Act.”
Fry said one precedent-setting issue might be whether the Smiths, or anyone else, has a right to take the Corps to court.
Another issue is the type of property over which the Corps has jurisdiction and its burden of proof in declaring jurisdiction.
The Smiths say the arroyo is dry all year, except for two or three times when there’s a heavy rain. Even then, water flows for only about a half-hour after a storm.
“If this is what the Clean Water Act means, then anyone’s drainage ditch is subject to federal authority,” Fry said. “We don’t think Congress ever intended to give (the Corps) that kind of authority.”
Significant streams
The Corps asserts that a “significant nexus” exists between the Gallina Arroyo and the Rio Grande, roughly 25 miles away.
“Basically, it discharges, eventually, into the Rio Grande,” said William Oberle, project manager with the Corps’ Albuquerque District regulatory division. “It’s a tributary, to make it simple.”
Oberle said the arroyo connects with several streams, including Galisteo Creek, a perennial stream that flows into the Rio Grande, a Traditional Navigable Water.
That term is used to define federal jurisdiction under the Clean Water Act.
The Corps contends that nitrates from fertilizers and other household chemicals would likely be present in the Gallina Arroyo.
“The Federally-endangered Rio Grande silvery minnow is present within the Rio Grande near the confluence of Galisteo Creek and the Rio Grande,” the report reads, adding that pollutants could wash down from the arroyo and harm such critters.
“It wouldn’t happen overnight,” Oberle said of the pollutants. “But sooner or later, it’ll get down to the river.”
Even if there’s no water in it?
“Most arroyos don’t (have water), but when they run, they run hard,” Oberle said. “We’re in the middle of a drought. But that doesn’t mean that if we get 3 inches of rain that wouldn’t do some damage.”
Oberle said the Smiths’ actions may have violated county codes, as well.
“They essentially removed part of the flood plain,” he said. “They leveled it from bank to bank and took all the vegetation out of it down to the bare dirt.”
Oberle said the Smiths had an opportunity to appeal the Corps’ jurisdictional determination but declined.
“When you appeal, who do you appeal to? Them,” Peter Smith said.
Watchdog takes case
While researching case law involving the Clean Water Act in the past year, Smith came across a recent U.S. Supreme Court case, Sackett v. EPA, in which an Idaho couple won a challenge to a federal wetlands compliance order.
The Pacific Legal Foundation represented the Sacketts, so Smith checked out the foundation’s website and filled out an online application form.
To his surprise, PLF contacted them and offered to represent them free of charge.
“I’m grateful to them,” Smith said. “For me to try to sue the government, with as many lawyers as they have, I couldn’t do it.”
Fry, the PLF attorney, said the Smiths’ case was picked because the U.S. 10th Circuit hasn’t ruled on the issue yet, so there is potential to set precedent. And they think the Smiths have a good case.
“We think this is one of the most egregious examples of the Corps abusing their powers,” she said. “The fact that they make this jurisdictional determination is outrageous.”
Fry said the arroyo that runs across the Smiths’ property doesn’t fit the Supreme Court’s tests for a water of the United States subject to federal oversight.
“If the federal government can tell the Smiths what they can and can’t do on their own land, by twisting the Clean Water Act and essentially using a divining rod to conjure a ‘water body’ out of dry soil, then no property owner, anywhere, is safe from federal intrusion,” she said.