Army Corp of Engineers Deem Dry Desert Wash to be ‘Water of the United States’

Having spent most of my life in the deserts of Arizona I’m all too familiar with the Army Corps of Engineers.

A number of years ago the Army Corps of Engineers convinced the Apache Indians on the San Carlos Indian Reservation to remove all the large cottonwood trees along a major section of the San Carlos River. They told the Indians that it would give them more land to farm. A number of range experts told the Army Corps of Engineers that removing the cottonwood trees would make the land subject to more flooding and erosion and advised against the project.

But the Army Corps of Engineers thought they knew best and proceeded to remove the cottonwood trees from several miles of river bed. Several years later every spring rain and snowmelt in the mountains ran down through the San Carlos River bed, destroying all of the farmland in its path. The same amount of water had run years previously and then did little damage because of the natural barriers and ground protection the large cottonwood trees and other shrub presented.

In addition to destroying the farmland along the river channel, the Army Corps of Engineers also destroyed one of the best dove nesting areas in the state. In the years that followed, the population of dove in the area of the San Carlos River plummeted.

Another example of the brilliance of the Army Corps of Engineers, was a lot closer to home. They constructed a large earthen flood diversion dyke that ran for number of miles across the desert east of Mesa, Arizona. The dyke was built to keep a large number of homes and future homes from being damaged by strong run off from monsoon rains. However, when the Army Corps of Engineers built the dyke it was obvious to everyone but them that all the water would run in one direction, around the end of the dyke and flood out all the homes in that area. The Army Corps of Engineers said they knew what they were doing and ignored the advice of everyone around. The rains came, the floodwaters came, and flowed around the end of the dyke and destroyed several hundred homes just as everyone had tried to warn them.

Twenty to thirty years later, the Army Corps of Engineers still remains clueless as testified in the example from the Santa Fe, New Mexico. Peter and Frankie Smith purchased 20 acres of land outside of Santa Fe in hopes of building their dream home to retire to and live happily ever after. As is typical in any desert landscape there are dry washes and stream beds that cross their land.

In one dry streambed they found lots of trash which they spent time cleaning up and hauling away. As they picked up the discarded tin cans, wine bottles and other items they also smoothed off the bottom of the desert wash and cleaned it up to make it look nice.

That’s when the big bad Army Corps of Engineers moved in and told them that wash was a ‘water of the United States’ and that their cleaning and smoothing of the wash constituted illegal dredging and pollution flow problems that could affect the Rio Grande River, some 25 miles away. By having the wash declared a water of the United States the Smiths were now subject to the rules and regulations of the Clean Water Act, which they were now in violation of according to the Army Corps of Engineers.

Not knowing where to turn, the Smiths ended up seeking the help of the Pacific Legal Foundation. The PCF then filed suit against the Army Corps of Engineers on behalf of the Smiths claiming that the actions of the Army Corps of Engineers has violated the constitutional rights they have as property owners and that they have overreached their jurisdiction in trying to take over property rights from private citizens.

Jennifer Fry, attorney for the Pacific Legal Foundation commented on the lawsuit saying:

“Federal officials claim regulatory power over the Smiths and their property, but the law says otherwise.  By labeling a dry creek bed as a jurisdictional water body, regulators are thumbing their noses at common sense and the Supreme Court.  The Smiths’ arroyo simply doesn’t fit the Supreme Court’s tests for being a ‘water body’ subject to federal oversight and control.  If the federal government can tell the Smiths what they can and can’t do on their own land, by twisting the Clean Water Act and essentially using a divining rod to conjure a ‘water body’ out of dry soil, then no property owner, anywhere, is safe from federal intrusion.”

“We’re aiming to stop federal regulators from becoming a national zoning board with unlimited control over land use, from coast to coast.  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 Pacific Legal Foundation won a similar suit earlier this year against the Environmental Protection Agency, involving Mike and Chantell Sackett. This case, which went before the United States Supreme Court, won the right of property owners to challenge government wetlands compliance orders. The high court ruled in favor of the Sacketts.

In the case of the Smiths versus the Army Corps of Engineers they hope to win the rights for private citizens to challenge unfair government orders and restrictions covered by the Clean Water Act. Even though I doubt it will happen, I would hope that this case would finally bring some sense to the Army Corps of Engineers and then bring an end to a long line of illogical and harmful actions.