A federal District Court judge in Florida has issued an order prohibiting the Army Corps of Engineers from expanding the Corps’ authority under the Clean Water Act without first going through the appropriate administrative procedures.

In New Hope Power Co. v. U.S. Army Corps of Engineers, 2010WL3834991 (S.D. Fla. September 29, 2010), District Judge K. Michael Moore struck down the Corps’ recent rulemaking that purported to expand the Corps’ authority to regulate wetlands. Under the Clean Water Act (“CWA”), the Corps is charged with regulating the “navigable waters” of the United States, including wetlands. Although the Corps has issued rules, guidance, and a Wetlands Manual describing how it makes wetlands determinations, courts have had a notoriously difficult time determining what exactly is considered a wetland under the CWA. 

At issue in New Hope Power is a recent change in policy adopted by the Corp expanding the Corps’ definition of wetlands, and thus expanding the Corps’ regulatory authority. Prior to 2009, the Corps’ stated policy was that “prior converted cropland” – that is, land that was drained for agricultural purposes prior to 1985 – was not a wetland. However, in January 2009, the Corps released an Issue Paper and a subsequent Affirming Memorandum (together called the “Stockton Rules”) announcing for the first time that prior converted cropland would no longer be exempt from wetlands regulation.

New Hope Power operates a renewable energy facility on land previously used to farm sugarcane. The Corps had previously told New Hope Power that it did not require a CWA permit because the property was a prior converted cropland, but in 2009, after issuing the Stockton Rules, the Corps notified the company that any subsequent construction without a CWA permit would constitute a violation of federal laws. New Hope Power brought suit seeking an injunction, claiming the Stockton Rules violated the Administrative Procedure Act.  The court agreed.

The court found that there had been a “definitive shift in the Corps’ substantive rules regarding what the Corps considers wetlands.” New Hope Power, 2010WL3834991, at *8. Under the Stockton Rules, the Corps had inappropriately “broadly extended the Corps’ jurisdiction and sharply narrowed the number of exempt prior converted croplands.” Id. The expansion was improper because the Corps did not go through the appropriate procedural steps necessary to change administrative regulations, including publication of the proposed changes in the Federal Register and allowing for a notice and comment period. Id. at *9. By failing to abide by the proper procedures, the Corps improperly overstepped its authority. In a victory for New Hope Power, the court set aside the Stockton Rules in their entirety.

For more information on regulated wetlands, contact Heidi Trimarco or any member of Taft’s environmental practice group.