ELR Citation: ELR 20259
No(s). 10-22777 (S.D. Fla. Sep 28, 2010)

A district court held that the U.S. Army Corps of Engineers improperly extended its jurisdiction under the CWA by enacting new legislative rules related to prior converted croplands without allowing the required public notice-and-comment period under the APA. A power company that operates its facility on a prior converted wetland argued that the new rules improperly extended the Corps' jurisdiction to situations where prior converted croplands are converted to non-agricultural use and dry lands are maintained using continuous pumping. The Corps argued that the rules are mere policy statements that are not subject to notice-and-comment requirements. But in the present action, there has been a definite shift in the Corps' substantive rules regarding what the Corps considers wetlands. Before the rules were enacted, prior converted cropland that was shifted to nonagricultural use was treated as exempt. Under the new rules, the opposite is true. Similarly, prior to the rules, continuous pumping to preserve a converted cropland's state did not impact a property's entitlement to a prior converted cropland designation. Following the rules, the opposite is true. As a result, the rules broadly extend the Corps' jurisdiction and sharply narrow the number of exempt prior converted croplands. The rules also break from the plain language of the Wetlands Delineation Manual, which is by its terms binding on the field offices. For these and other reasons, the new rules constitute new legislative and substantive rules and create a binding norm. Therefore, the rules were procedurally improper because no notice-and-comment procedures were used and they must be set aside.