Feds Run Amok With Arroyo Over-Regulation

To paraphrase, the arroyo to hell is paved with good intentions, illegally dumped garbage, dead trees and underbrush. Just ask Peter and FranÃ§oise 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.

The Corps asserts that a “significant nexus” exists between the Gallina Arroyo and the Rio Grande, roughly 25 miles away.

“Basically, it discharges, eventually, into the Rio Grande,” said William Oberle, project manager with the Corps’ Albuquerque District regulatory division. “It’s a tributary, to make it simple.”

Using that as a criterion for having jurisdiction over private property, anyone who has rain fall on his property could be a target. - Tom

Several years ago our city (in an attempt to curtail flooding in the congested areas of the city that were built in the flood plain) attempted to institute a water tax on farm land per square foot. They spent $50,000 for a study from the local U that claimed at rain falling on undeveloped land (not paved, nor bearing any building) caused flooding.

It took a near riot to get the Aldermen to vote that report down. Instead, they got a federal grant to fix the drainage in the parts of town that habitually flood and are raising properties above the flood level.

But, those crazy notions never die. I’m sure it will come up again.

It’s a over-interpretation of the Clean Water Act regulations.

For example, a city or community discharging treated wastewater into a dry arroyo is required to obtain an EPA NPDES permit even if the water does not reach a flowing surface water body. And, of course, to get that permit the state of New Mexico will add on all sorts of additional monitoring requirements as set for in the Water Quality Control Commission Surface Water Regulations (e.g. ammonia, chlorine residual, etc.). An example is the City of Santa Fe which discharges to the Santa Fe River (dry below the city’s reservoirs except during high storm runoff).

To avoid that, many communities make use of total retention ponds and re-use/sell the water for park watering/crop irrigation. The absurdity is that any wastewater discharged to a dry arroyo first has to be chlorinated (to kill the microbial bugs) then de-chlorinated to protect any critters that have taken up residence in the formerly dry arroyo that is now wet!

In the oil patch, when a company has a spill, the required spill report to the state agency has a section that asks: “Was a watercourse reached?” If “yes” a whole set of additional information is required and maybe notification to the Coast Guard’s National Response Center even if the spill doesn’t reach an actual body of water.

The Corps of Engineers comes into the picture when you want to do any construction in a water course such a building a highway bridge over a river. This requires a permit from them and of course protests by environmental groups can easily cause delays especially if the bridge might impact a wetland.

Again it gets sticky when the state DOT wants to widen an existing highway and reconstruct bridges or culverts over dry arroyos which require cut and fill. I don’t know how that is handled.

Bottom line is that current regulations cover all water courses (dry included) as a “water of the US” though the original enabling legislation referred to them as “navigable waters.” It’s way past the time for the courts to put a stop to such overreaching of the feds and hopefully this lawsuit will accomplish that.

Use this link:

Thank you.

This is yet another example of regulatory creep and is perhaps the scariest sign of intrusive government. The key thought is that no government bureaucrat ever got a pat on the back for NOT going the extra mile in enforcing the SPIRIT of the regulations! When a government official errs on the side of caution, it means that a citizen and their rights just got squeezed.

Now we are getting ObamaCare and Frank-Dodd financial behemoths which are littered with open ended request for regulations. Anybody know when the next rocket to Alpha-Centauri leaves?

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