On June 15, 2011, Peter Smith received a certified letter from the US Army Corps of Engineers informing him that he was guilty of an “unauthorized use of water of the United States,” violating Section 301(a) of the Clean Water Act, as he had no permit to alter a streambed and “discharge dredged material.”
A recently retired surveyor, in 2005 Peter and his wife, Francois, bought 20 acres of land 19 miles southwest of Santa Fe, New Mexico, to build their retirement home. The property was once part of the Eaves Movie Ranch, where many famous western films and TV series were filmed including The Cheyenne Social Club, Chisum, Easy Rider and Young Guns II. On one part of the property there re the remains of a false mine shaft, in another there is what’s left of an old cabin, presumably both formerly used in movie sets.
Running through Smith’s property is a 200-yard-long shallow ravine, part of the Gallina Arroyo. Arroyos are dry washes that every so often when there is a strong rainfall, may carry a stream of water which usually is a trickle for a few minutes, but every few years there could be a flash flood. Technically an “arroyo” in New Mexico is “a watercourse that conducts an intermittent or ephemeral flow, providing primary drainage for an area of land of 40 acres (160,000 square meters) or larger; or a watercourse which would be expected to flow in excess of one hundred cubic feet per second as the result of a 100-year stormevent.”
When the Smiths bought their property, in the middle of the arroyo were some eroded ruts 2-3 feet deep and 2-3 feet wide. Otherwise, the arroyo, which 10-25 yards wide, was choked with rabbitbrush, an invasive shrub called salt cedar, and there was considerable trash in the arroyo.
“People had dumped garbage down there, and there was a beetle infestation that took out a lot of the piñon, maybe 600 trees,” Peter Smith said. “The salt cedar was getting to the point it was so thick you couldn’t walk through it. The arroyo was a fire hazard. So I cleaned up as much as I could with a tractor and a Bush Hog. The eroded ruts in the arroyo threatened to flip over my tractor when I wanted to get in there, so I smoothed the ruts over,” he said. “The work took about two weeks.”
When the Corps letter arrived, the Smiths had no idea what was going on. No one had called or contacted them in person. He felt not only had his property been improved, but he had done a favor for the neighborhood.
Nonetheless, the Corps said that Smith had interfered with a “significant nexus,” and therefore he was guilty of breaking a law.Thus began a series of exchanges of letters between Smith and the US Army Corps of Engineers, which to date is over an inch thick. From these, Peter learned that the 1972 Clean Water Act bars the discharge of pollutants into “navigable waters.” Although the Gallina arroyo only holds any water a few times a year at best, it is considered a “significant nexus,” in recent interpretation of the Clean Water Act, and it is a “water of the United States” because it ultimately drains into the Rio Grande, although the Rio Grande is about 25 miles away. Note: the Gallina Arroyo feeds into other arroyos along the way, including the San Marcos Arroyo, which in places is used by motorists as a road.
The closest stream that could receive water from the Gallina Arroyo, is the Galisteo River, normally 2-3 feet wide. It flows (barely most of the time) 15 miles to the Galisteo Dam, a huge flood control reservoir that’s currently dry. There is no flood gate in the reservoir. The dam just impedes the flow of water “downstream.” Another five miles of dry wash and the wash passes under I-25. Then it’s another 15 miles of dry wash to the Rio Grande. To give you a feel of just how arid this area, is Kathryn Bigelow used an area in the San Marcos Arroyo to depict the arid high desert in Afghanistan in her acclaimed film Zero Dark Thirty.
In another letter to Smith, the Corps says that sediment from his stretch of the Gallina Arroyo could have a negative effect on the river, home to the endangered Rio Grande silvery minnow, and removal of vegetation mightalso increase concentrations of toxic nitrates from fertilizers (there is no farming in the area, it’s far too dry.).
Peter wrote back and asked just what constitutes “water of the United States?” The Corps replied that water that flows in any watercourse that has a bed and banks is “water of the United States.” This could mean a ditch or less. He asked what water is not “water of the United States.” The Corps responded that the only water that is not “water of the United States” is the rain that falls on the roof.
At this point Peter did not know what he could do. The Corps had told him to cease and desist from any more alterations; otherwise he would be subject to fines and other penalties. Could he hoe in his garden? Or construct a ditch?
Peter wondered whether he could restore the arroyo to its original condition. The Corps vetoed that option, however, writing, “restoration of the arroyo channel to its original condition is not practicable (sp).”
Not knowing what to do, Peter began an Internet search, and came across the Pacific Legal Foundation (PLF), a non-profit watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations. PLF has a place on its website for a person to write 100 words or less to describe their problem to see if the foundation would be interested in representing them. Peter described his problem, sent it and to his surprise, he got a reply saying that PLF would be, and attorney Jennifer Fry was assigned to the Smith’s case.
“We’re aiming to stop federal regulators from becoming a national zoning board with unlimited control over land use, from coast to coast,” says Fry. “This case could also set a precedent by affirming that property owners have the right to their day in court, and Clean Water Act regulators aren’t a law unto themselves. They must be subject to court review when they make a ‘jurisdictional determination’ that someone’s property is covered by the Clean Water Act.”
The Smith lawsuit follows up on PLF’s 2012 victory in Sackett v. EPA, where the U.S. Supreme Court held, unanimously, that Idaho residents Mike and Chantell Sackett–and by extension, all property owners–have a right to bring a court challenge to a federal “wetlands compliance order.” The Smith case, then, argues that property owners may seek court review if the federal government designates their land as subject to the Clean Water Act.
Fry told me that the Smiths’ problems can be traced to a 2006 U.S. Supreme Court case, Rapanos et. al. vs the United States, which limits the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers over waterways.
The Rapanos case involved four Michigan wetlands lying near ditches or man-made drains that eventually empty into traditional navigable waters. The Sixth Circuit found federal jurisdiction based on the sites’ hydrologic connections to the nearby ditches or drains, or to more remote navigable waters. So this was appealed all the way to the Supreme Court.
Justice Scalia, joined by The Chief Justice, Justice Thomas, and Justice Alito, concluded that: the phrase “the waters of the United States” includes only those relatively permanent, standing or continuously flowing bodies of water “forming geographic features” that are described in ordinary parlance as “streams,” “oceans, rivers, and lakes.”However, an opposing opinion written by Justice Kennedy concluded that the Sixth Circuit correctly recognized that a water or wetland constitutes “navigable waters” under the Act if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made. And he added that the Corps can regulate waters to prohibit acts that can affect the chemistry, physical nature, and biological integrity of navigational waters. The Kennedy opinion, then is responsible for the “significant nexus” concept that got the Smiths in hot water.
Arroyos are common in the high desert of New Mexico where there is less than 10” of rainfall a year. The soil is a loose, dry blend of sand, clay and silt. Clouds of dust are common, especially during the spring when strong winds are common. Any place where there is not underlying sandstone bedrock, and there is not a juniper tree, small gullies form when it does rain in the summer “monsoons” when 75% of the annual rainfall occurs.
Standing beside the arroyo, I asked Peter what plans he had for his now famous arroyo. “Maybe I could start a marina,” he quipped.
Back at the house in his pile of correspondence from the Corps, Peter showed me a survey letter asking if he had received “satisfactory service” from the Corps. He has not filled that one out and returned it yet.
Driving back from the Smiths’, I began to wonder whether every roadside ditch was a “significant nexus.” Then I recalled that another arroyo, Arroyo de los Angeles, crossed a paved road nearby. At that crossing, there is no bridge, but there are “Watch for Water” warning signs approaching the crossing. On one side of the road, a landowner has a barbed wire fence across the arroyo, and he has built a Gabian Wall of rocks covered with chain link fence, to deflect the occasional flow of the arroyo and prevent erosion. Does he need a permit to protect his land? If the US Army Corps of Engineers decided to track down every way that the arroyos of New Mexico have been influenced by people, it would probably be a good idea because it could bring many, many government jobs to New Mexico.
When I got home, I looked up salt cedar or tamarix. Research has shown that large dense stands of salt cedar consume more water than equivalent stands of native cottonwoods. Salt cedar also disrupts the structure and stability of native plant communities and degrades native wildlife habitat, by outcompeting and replacing native plant species, salinizing soils, monopolizing limited sources of moisture, and increasing the frequency, intensity and effect of fires and floods.
Peter Smith had done a good deed and been penalized for it.
So, the next time you hear rain falling on the roof, know that rain on the roof is not yet “water of the United States,” but you might want to look out the window to see where the gutters are directing the rainwater because you just might be committing a crime.
Update 3/11/2013: The PLF put out a press release on 3/8/2013 announcing that federal officials have decided to withdraw their classification of the Smiths’ property as a “water of the United States,” a victory for the couple. The PLF has correspondingly withdrawn their lawsuit. Read the full release here.
Images courtesy James Swan