Feds say dry creek bed is not a “water of the United States” after all

March 08, 2013 | By JENNIFER THOMPSON

In a surprising move, the U.S. Army Corps of Engineers did an about face in the lawsuit PLF filed on behalf of Santa Fe property owners Peter and Frankie Smith.  As our initial press release, blog post, and video explained, the Smiths ran afoul of the Feds when they cleaned up trash, dead trees and other debris from a dry creek bed or “arroyo” that runs across their land.  The Corps said the Smiths violated the Clean Water Act for doing that maintenance work without a Corps-issued permit because their arroyo was a “water of the United States” subject to the Corps’ regulatory authority.

The Smiths’ lawsuit challenged the lack of evidence for the Corps’ assertion of jurisdiction.  The Corps’ theory—that activities undertaken in the Smiths’ arroyo could harm a federally-endangered silvery minnow living 25 miles away in the Rio Grande—was not supported by any evidence.  Rather than respond to PLF’s lawsuit, the Corps recognized that it made a mistake and admitted that it had no data whatsoever to support jurisdiction.  It dissolved the Jurisdictional Determination (JD) at issue—the official document asserting jurisdiction—and issued a new JD in which it states:

Based upon the lack of evidence in the record of a physical, chemical or biological connection, a significant nexus with the TNW [Traditional Navigable Water] Rio Grande cannot be identified and the Gallina Arroyo is determined to be non-jurisdictional under Section 404 of the Clean Water Act.

As a result, the Corps has no authority to regulate the arroyo and Peter and Frankie can continue their maintenance work on their property without fear of federal reprisal.

That is significant not just for the Smiths, but for all property owners in this country.  The Corps’ concession—before even reaching the courthouse—that there was no evidence to support its theory of jurisdiction is an admission that it never had jurisdiction in the first place.  And while it may be sad that it took a lawsuit to get the Corps to recognize its error, this victory will undoubtedly have wide-ranging consequences.  By refusing to surrender to the unlawful exercise of jurisdiction over their property, the Smiths have held the Corps to the standard of the law.  The Corps cannot simply label a person’s dry property a “water of the United States,” on its own say so; it must follow the law.  And when property owners like the Smiths hold the agency to that standard, it helps to curb this type of regulatory abuse.  It also emboldens others to stand up to government infringements of property rights.  Because the Smiths fought back against the government and won, they have paved the way for others to do the same.  Thanks to Peter and Frankie for their courage and for showing the rest of us that it is possible to beat the Feds at their own game.