I spy with my little eye a “water of the United States”

Or so says the United States Army Corps of Engineers about the pictured property.  Can you see the water on this property?  We can’t, which is why we are taking the Corps to court in our newest lawsuit, Smith v. U. S. Army Corps of Engineers.

Here’s the story: PLF clients Peter and Frankie Smith bought 20 acres of property south of Santa Fe, New Mexico, for their retirement.  Prior to purchase, they researched the title to make sure there were no easements or other encumbrances on the land.  They then designed and built their dream home where they now live.  A dry creek bed, known in New Mexico as an “arroyo,” runs across part of their land.  Unfortunately, the prior owner of the property had used the arroyo as a place to dump trash and other debris.  In addition, a lot of trees on the Smith’s property and in the arroyo had died from a bark beetle infestation affecting Southern New Mexico and posed a fire hazard.  Upon retiring, the Smiths had more time on their hands and started to clean up their land.  They removed truckloads of trash from the arroyo and took out the dead trees.

One day, seemingly out of the blue, they received a letter in the mail from the local branch of the U.S. Army Corps of Engineers informing them that they had violated the Clean Water Act by “dredging and filling a water of the United States” without a federal permit.  The Smiths thought at first that there must be some mistake as their property is located in the high desert and remains bone dry, except when it rains.  According to the Corps, the Smiths ran afoul of the law when, during the course of their clean-up efforts, they smoothed out the bottom of the arroyo so they could safely use a truck and tractor to remove the trash and dead trees.  Unbeknownst to the Smiths, one of their neighbors had complained to the Corps about their clean-up activities and had helped facilitate a site inspection.  After that inspection, the Corps issued a “Jurisdictional Determination” asserting that the Smiths’ arroyo is a “water of the United States” for purposes of the Clean Water Act and therefore subject to the Corps’ regulatory control.  The Corps warned the Smiths that their violation of the Clean Water Act would be kept on record and that they would be subject to fines and penalties if they continued their clean-up efforts without obtaining a federal Clean Water Act permit.

Peter Smith got in touch with PLF after reading about our victory in Sackett v. EPA.  We decided to represent the Smiths for a number of reasons.  First, in Sackett, we established that property owners who receive a Clean Water Act “Compliance Order” have the right to challenge that order in court.  We believe that the same principle holds true for property owners who, like the Smiths, receive a Jurisdictional Determination; this case presents the opportunity to raise that argument.

Secondly, the Corps is wrong about having jurisdiction over the Smiths’ property.  When Congress passed the Clean Water Act in 1972, it never intended to give the Corps authority to regulate dry creek beds that only become wet when it rains.  PLF litigated this issue before the U.S. Supreme Court in 2006 in Rapanos v. United States and succeeded in cutting back on an expansive interpretation of the Clean Water Act.  Unfortunately, that victory did not stop the Corps (or the EPA) from pushing the envelope on the scope of its power.  The Smiths’ case presents the opportunity to follow-up on Rapanos and to obtain more meaningful limits on the Corps’ jurisdiction.  If the Corps really does have jurisdiction over the Smiths’ dry arroyo, then no pond, drainage ditch or puddle is immune from the Clean Water Act.  Try as it might, the Corps’ power does not stretch that far.  If we succeed in stopping the Corps from regulating the Smiths’ property, we succeed in cutting back on the agency’s jurisdiction and bringing it into alignment with Congress’ intent and with the Supreme Court’s Rapanos decision.

Finally, challenging the Corps in this case fits within PLF’s broader mission of enforcing constitutional limits on the exercise of government power.  Our federal government, of which the Corps is a subset, is supposed to be a government of enumerated, and therefore, limited powers.  Representing the Smiths is one of the numerous ways that PLF works to enforce that principle in a manner that is tangible and significant.  Thanks to all of our donors who make our work possible and who allow us to represent the Smiths in their fight to simply use and enjoy their property free of federal interference.