Landowners’ lawsuit prompts Army Corps to cede authority over arroyo

Peter Smith is shown at the arroyo that runs across his property near N.M. 14 south of Santa Fe. New Mexican file photo

A Santa Fe County couple dropped their lawsuit against the U.S. Army Corps of Engineers on Friday after the agency agreed to withdraw its designation of a dry arroyo across their property as a federal waterway.

Peter and Frankie Smith own 20 acres near N.M. 14 south of Santa Fe. Peter Smith said in 2011 he “smoothed out” ruts into a dry arroyo on the property to get his tractor down into it so he could clean out trash, salt cedar and dead trees.

However, the Army Corps of Engineers told him he couldn’t do such work without a permit because the arroyo was a “water of the United States” and regulated by the 1972 Clean Water Act.

The agency asserted that the arroyo, when flowing, could carry water to the Rio Grande. Removing some of the vegetation in the arroyo could allow contaminants to wash down into the river, officials said.

The Smiths sued last year, claiming the agency had incorrectly and inaccurately labeled the arroyo as a federal waterway. The agency subsequently dropped the label.

“I think they are aware they made a mistake,” said Jennifer Fry, attorney for the Pacific Legal Foundation, which represented the Smiths in the dispute.

Beth Pitrolo, an attorney with the Army Corps of Engineers, confirmed staff had reassessed the arroyo and decided it did not fall within the agency’s jurisdiction under the Clean Water Act. She said a new hydrology report and clarification from the regional division about how to assess arroyos led to the decision.

In 2006, the U.S. Supreme Court clarified the federal government’s authority under the federal Clean Water Act, Fry said. Known as the Rapanos case, the lawsuit involved four Michigan wetlands near ditches.

The Clean Water Act is intended to help federal agencies protect wetlands, rivers, streams, lakes and other waterways from contamination or obstruction. Decisions in several lawsuits filed over the Clean Water Act have restricted the definitions of protected waters.

Smith found a little humor in the situation involving his property. “The feds magically turned my property into water front, and then took it away again,” he said.

Contact Staci Matlock at 505-986-3055 or smatlock@sfnewmexican.com. Follow her on Twitter @stacimatlock.

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