Does Dry Desert Land Fall under the Clean Water Act?

The Army Corps of Engineers can regulate a dry creek bed in the desert under the 'wetland' regulations of the Clean Water Act?

"After retiring, Frankie and I started to clean up our land. We were shocked when one day we received a ‘Notice of Violation’ in the mail from the U.S. Army Corps of Engineers accusing us of violating the Clean Water Act by conducting unpermitted work in a ‘water of the United States.’”

He explained: “Given that we live in the high desert of New Mexico and the arroyo – like the rest of our property – is bone dry, we thought there was some mistake. We were really taken aback by the arrogance of the agency which didn’t even bother to call us or knock on our door.

“And we still can’t believe that the federal government can control what we do in our own backyard under the Clean Water Act when there is no water on our property! The real problem for us now is that we’re afraid to continue our cleanup and maintenance efforts because the Corps told us that we will be considered ‘knowing violators’ subject to civil and criminal liability if we do any more work without obtaining a permit.”

Smith said the lawsuit was launched “because we think the federal government has wrongfully trampled on our right to use and enjoy our property.”

“We don’t believe Congress ever intended to give the Corps power to regulate dry creek beds like ours and we want to help put an end to the Corps’ ridiculous interpretation of ‘waters of the United States."

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