New Mexico couple sues Army Corps of Engineers

Posted on December 24, 2012


United States Army Corps of Engineers Logo

United States Army Corps of Engineers Logo

A Santa Fe, New Mexico couple is suing the U.S. Army Corps of Engineers for whether or not the group has jurisdiction over the water on their land.

Peter and Francoise Smith built their dream retirement home on 20 acres in 2005. At that time, a small arroyo running across the property was in a terrible state, Mr. Smith told the Albuquerque Journal. So he decided to do something about it.

“People dumped garbage down there, and there was a beetle infestation that took out a lot of the piñon,” he 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 they received a certified letter from the U.S. Army Corps of Engineers, warning that they were in violation of the 1972 federal Clean Water Act for “filling a water of the United States” (Santa Fe New Mexican). The Corps claimed the Gallina Arroyo has a “significant nexus” with the Rio Grande, which is about 25 miles away.

No further action would be taken, the letter continued, but the Smiths would need to apply for a permit if they wished to keep maintaining the arroyo.

But Mr. Smith said water rarely flows through the Gallina Arroyo at all.

“The main point is that it is not the waters of the United States,” Mr. Smith told the Santa Fe New Mexican. “It would be different if it was a flowing river going through there, but the thing is dry.”

So instead of going through the arduous and costly process of obtaining a permit, the Smiths decided to take legal action. They filed a lawsuit on Tuesday, Dec. 11, and will represented by the Pacific Legal Foundation–a nonprofit watchdog that litigates for property rights and limited government.

Jennifer Fry, an attorney with the Sacramento, California-based legal group, said she hopes that this case will set a precedent.

“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, in a quote on The Republic. “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.”

This isn’t the first time the U.S. Army Corps of Engineers has been accused of improperly flexing their muscles. Since the Corp’s jurisdiction over waterways was limited by a 2007 Supreme Court case, it has been the target of numerous lawsuits.