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Editorial: Feds Run Amok With Arroyo Over-Regulation

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To paraphrase, the arroyo to hell is paved with good intentions, illegally dumped garbage, dead trees and underbrush. Just ask Peter and Françoise Smith. They had the audacity to clear debris out of the arroyo on their property behind their home, off N.M. 14 southwest of Santa Fe.

Peter Smith says “people dumped garbage down there, and there was a beetle infestation that took out a lot of the piñon.” He says the estimated 600 dead trees presented a fire hazard and the non-native “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.”

Then the Army Corps of Engineers schooled him on the power of the U.S. government. It sent a certified letter saying the Smiths violated the Clean Water Act because the 150-yard cleanup was done without a permit.

When Peter Smith tried to explain his actions, the Corps responded “Gallina Arroyo is a water of the United States” — though it is dry year-round save for the rare rain storm — and if the Smiths persisted, they would need to get a permit or face “legal action, including applicable penalties and fines.”

That’s courtesy of a federal government that has posted nearly 6,000 new regulations in the last three months, according to regulations.gov. Think about that the next time you’re tempted to put litter in its place.

Instead the Smiths contacted the nonprofit Pacific Legal Foundation, which sued the Corps in U.S. District Court in Santa Fe on the Smiths’ behalf.

Foundation attorney Jennifer Fry says the case could set precedents on whether someone can take the Corps to court, what type of property the Corps has jurisdiction over and what its burden of proof is for declaring that jurisdiction.

She raises the very reasonable question of how a high-and-dry desert arroyo is a water of the United States, and adds “we’re aiming to stop federal regulators from becoming a national zoning board with unlimited control over land use, from coast to coast. They must be subject to court review when they make a jurisdictional determination that someone’s property is covered by the Clean Water Act.”

Because apparently they can not make a common-sense determination that landowners should pick up garbage and debris on their own property.

This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.

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