ELR Citation: ELR 20008
No(s). 89-2905 (4th Cir. Sep 19, 1989)

The court holds that, without further rulemaking, the Corps of Engineers lacks jurisdiction to require a Federal Water Pollution Control Act (FWPCA) §404 permit for development of an isolated wetland. The court holds that a letter on which Corps jurisdiction was based, from the Corps' Deputy Director of Civil Works to all Corps officers, was of a character requiring prior notice and comment under the Administrative Procedures Act (APA). The court holds that a provision in the letter, expanding Corps jurisdiction over navigable waters to include waters used as migratory waterfowl habitat, represented a new material addition to the coverage of the FWPCA, and was not merely an interpretive rule that may be excepted from the requirements of APA §553.

[A dissenting judge would hold that the migratory bird provision is an interpretive rule that is exempt from the notice-and-comment procedures of the APA.]

Counsel for Defendants-Appellants
David Carlisle Shilton, Dirk D. Snel, Michael D. Rowe
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611 Ben Franklin Station, Washington DC 20044
(202) 633-5580

Counsel for Plaintiff-Appellee
Richard R. Nageotte
Nageotte & Borinsky
14908 Jefferson Davis Hwy., Woodbridge VA 22191
(703) 643-2202