The second déjà vu item has to do with a couple of U.S. Supreme Court cases that may have great relevance to the implementation of our freshly minted CAOs. Each case is being brought before SCOTUS by the Pacific Legal Foundation (PLF). PLF has a great record before the Supreme Court (6 won out of 7 argued), most recently winning a wetland case for the Sacketts of Priest Lake, Idaho.
These SCOTUS cases are déjà vu items because, in both cases, the narratives of know-it-all government overreach have become all-too-familiar. One case is Koontz vs. St. Johns River Water Management District. In that case, the Water Management District conditioned a development permit for Koontz that would have required him to place a conservation easement over his land and perform mitigation off-site by restoring properties not owned by Koontz and miles away from his property. When Koontz refused the permit conditions, the Water District denied his development permit. Oral arguments for this extraction case are scheduled for January 15, 2013.
The other SCOTUS case is potentially even more relevant to our CAOs, and it attempts to do for Corps of Engineers' jurisdictional determinations what the Sackett case did for EPA administrative rulings. Translation: can the government declare any piece of property "waters of the United States" (i.e., a wetland or stream) simply because they say so, without offering any proof that there is relatively permanent water on the property?
Peter and Francois Smith live in the high desert of New Mexico without any surface water on their property. Nevertheless, they were ordered by the U.S. Army Corps of Engineers to stop cleaning up their land because they were dredging and filling "waters of the United States" and impacting the Rio Grande River, which lies 25 miles away. Although the Smiths live in the desert, the logic used by the regulatory agencies in that case is nearly identical to arguments we have heard in San Juan County (and surrounding counties too such as Island and Whatcom County).
For more on the Smith case, watch the following video or read the linked article.