December 12, 2012

Press coverage of Smith v. U.S. Army Corps of Engineers

By Damien M. Schiff Senior Attorney

Yesterday, attorneys for Pacific Legal Foundation filed a lawsuit on behalf of Peter and Frankie Smith, New Mexico landowners who have been targeted by the Army Corps of Engineers for alleged violations of the Clean Water Act.  The Smiths’ case has garnered good press this morning with articles from the Albuquerque Journal and the Santa Fe New Mexican.  An official from the Corps is quoted supporting the agency’s assertion of jurisdiction over the Smiths’ dry arroyo.  The official reasons that the arroyo is a “tributary” to a “perennial stream” that itself flows into the Rio Grande, that the latter is home to an endangered fish species, and that the Smiths’ dry arroyo is capable of carrying stormwater downstream, which could reach the Rio Grande.  Of course, as PLF attorney Jennifer Fry points out in the article, this rationale would subject every storm drain and channel in the nation to federal jurisdiction.  The Corps’ breathtakingly broad understanding of its own authority simply cannot be squared with the Act itself or with Supreme Court precedent.  We look forward to making the Smiths’ case in court.

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