Standing in a ditch drier than a saltine, Iowa landowner Dan Ward kicks at parched dirt, searching for answers. “I’m looking for common sense and finding none,” he says. “Who pretends ground is wet when there’s not a drop of water? Who ignores Supreme Court rulings and dares the citizenry to do something? Only federal bureaucrats.”
Ward cannot build a pond on his 420-acre farm property because government officials consider a dry depression that runs half-a-mile across the land, over 100 miles from the nearest navigable river, to be “waters of the United States.”
“We’ve reached a place where our own officials believe they can disregard Supreme Court law,” Ward contends. “What the government is doing on my land is 100% about keeping power.”
Abide or Reject?
Two steps forward, three steps back for U.S. landowners and farmers?
In May 2023, in Sackett v. EPA, the Supreme Court (SCOTUS) announced a 9-0 decision heralding a major reduction in government power by returning the Clean Water Act’s (CWA) reach to its original bounds. In a major rebuke to EPA and Army Corps of Engineers, SCOTUS confined federal control of waters and noted that a water body’s designation should be obvious to the public, i.e., common sense should be in play.
Justice Samuel Alito was specific: “the CWA’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.”
With the SCOTUS decision in stone, did EPA and Army Corps of Engineers—the two governmental arms at the helm of water regulations—abide by the ruling? “No. They broke it immediately,” Ward says. “They ignored it and carried on, right on my property.”
“Off The Rails”
In Decatur County, roughly a quarter mile above the Missouri line, Ward owns 420 acres in central Iowa. His rolling ground features 200 acres of timber, 180 acres of prairie, and 40 acres of row crops laced by ridges and shallow ravines in the heart of world-class whitetail country. “I’m a serious steward of this land and I spend every moment out here trying to increase the health and habitat of my ground.”
The property contains nine tiny ponds that once served as livestock watering holes, each approximately a quarter acre in size. In 2023, Ward set out to build a nine-acre pond: “I wanted a better aquatic habitat for me and my 13 grandkids for fishing purposes and to create another ecosystem out here. From habitat to recreation, I want to improve things and make this place pristine.”
Ward’s pond site crossed 2,800’ of a dry ditch that runs 3,500’ across his land at a width ranging from 3’ to 5’. A quarter mile off Ward’s property line, the dry ditch leads to Caleb Creek, which bleeds into the Weldon River, which flows into the Thompson River, which empties into the Grand River, and later into the Missouri River.
“Basically, I call it a dry ravine or dry depression,” Ward describes. “There’s no water in it unless it rains the same day. Come after the rain and all you’ll find is some isolated puddles. It leads to a creek off my property. The nearest navigable river—the Grand—is over 100 miles away.”
As a career contractor at the helm of a heavy industrial company involved in aluminum and steel rolling mill foundation work, Ward was intent on building the pond correctly from the get-go. He hired a civil engineer to design the pond, engaged a geotechnical company to take soil boring samples, and paid for a wetlands delineation that proved negative.
“I did everything aboveboard, upfront, and followed the rules. I’ve done work for the Corps and have several contracts with them, and I’d never do anything detrimental to the environment. Because of the height of the required pond levee, I filed for a dam permit with the Iowa Department of Natural Resources. They sent my application details to the Corps and that’s when things went off the rails.”
Suddenly, in the eyes of federal officials, Ward’s dry ditch became a fast-flowing “stream,” and his proposed pond had the potential to harm wildlife habitat, disturb historic artifacts, and damage waters of the United States.
$1 Million
Corps officials visited Ward’s property in April 2023—a four-hour stay. “It was ridiculous,” Ward describes. “It had rained recently and there were pools of water in what they claimed was a stream. The Corps was here one time for literally four hours, but that was all they needed to claim jurisdiction. I sent them pictures from all throughout the year, including December, showing a completely dry ditch, but they said it was only because of drought.”
However, Sackett v. EPA threw a monkey wrench in the Corps’ jurisdiction on Ward’s acreage. “Suddenly, they told me they might lose jurisdiction based on a big Supreme Court case. Sure enough, after the Sacketts won that case, the Corps told me they couldn’t speak officially yet, but that they no longer had jurisdiction, but I’d have to wait for the final ruling.”
(The Army Corps of Engineers declined Farm Journal questions related to Dan Ward and the Sackett ruling, citing the pending appeal.)
Ward waited, month after month, with the ditch dry. “I kept calling the Corps, wanting an answer. Finally, they said they’d been given additional tools by EPA and they now had jurisdiction again. It’s simple: The Corps was buying time to find a way around the Sackett ruling. They would never ignore the Supreme Court unless they felt they had the power to do so.”
Yet, after the government took jurisdiction of Ward’s property, the Corps didn’t deny him a pond permit—a misleading measure, he contends. Instead, Ward was required to check off a series of regulatory boxes and pay a hefty sum.
“They told me that there was absolutely no permit denial, while meanwhile they tried to wear me down. All I had to do, they said, was go through their process, step by step, which could easily cost in the six-figure range or much higher, and I still wasn’t guaranteed a permit.”
“In my case, the Corps said I had to do a ‘needs assessment’ on why I needed the pond. Then, I was required to do an ‘archeology study’ to make sure no artifacts were disturbed. Then, I had to do a ‘wildlife habitat’ study. Then, I had to come up with a plan to replace the stream somewhere else by building or restoring another stream in equal size or buy stream credits similar to carbon credits. The credits were going to cost me upwards of $1 million.”
Ward had two options: Kill the pond project or seek legal help.
Enter the Pacific Legal Foundation (PLF)—the same law firm that stood before the Supreme Court and won the Sackett ruling in 2023. In a PLF release, attorney Charles Yates spoke bluntly: “The ‘stream’ that the Army Corps claims it has the power to regulate bears more resemblance to a hiking trail than a body of water. The Corps seems to think that observing water trickling on one day, after a large rainstorm, magically transforms this unremarkable groove into a navigable water it can regulate under the Clean Water Act. It’s exactly the kind of thing the Supreme Court sought to end in Sackett, but the Corps hasn’t gotten the message.”
“Shame On All Of Us”
In February 2024, backed by PLF, Ward filed a regulatory appeal with the Corps.
“Sackett made it clear that ‘only those relatively permanent, standing, or continuously flowing bodies of water’ could be regulated,” PLF attorney Sean Radomski says. “However, the Corps is trying to control a dry, unnamed tributary that is about 100 miles from any navigable water. This is quintessential government overreach.”
Almost a year after SCOTUS’ Sackett decision, how many cases like Ward’s are in EPA and Corps crosshairs?
“Mr. Ward’s situation is not in isolation,” Radomski says. “We are seeing more Clean Water Act cases filed that don’t come close to the Sackett test. I’m presently involved in the Eastern District of North Carolina with a similar case on private land. It’s so important to stay involved, because if things continue, Sackett will be a Pyrrhic victory where you win one battle and lose the war. If we don’t stay awake, the government will ignore Sackett.”
Ward’s appeal is currently under Corps review. His case potentially could go into a federal court in the Southern District of Iowa before a neutral judge.
“There’s a point where you fight back or lose everything because power-hungry officials are never satisfied—regardless of what the Constitution says,” Ward concludes. “Over long periods of time they slowly take more power and ignore additional law. Shame on all of us for letting them.”
For more articles from Chris Bennett (cbennett@farmjournal.com or 662-592-1106), see:
Power vs. Privacy: Landowner Sues Game Wardens, Challenges Property Intrusion
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud
Priceless Pistol Found After Decades Lost in Farmhouse Attic
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
Tractorcade: How an Epic Convoy and Legendary Farmer Army Shook Washington, D.C.
Bizarre Mystery of Mummified Coon Dog Solved After 40 Years
