A federal judge in Florida has set aside U.S. Army Corps of Engineers (Corps) rules implemented without public notice and comment in violation of the Administrative Procedure Act (APA). New Hope Power Co. v. Corps, No. 10-22777 (S.D. Fla. 9/29/10). According to the court, the rules improperly extended the Corps’ jurisdiction under the Clean Water Act by altering how the agency makes wetlands determinations.

The rules, issued as memoranda by the Corps, would have extended the Corps’ jurisdiction to converted croplands that were shifted to non-agricultural use and where dry lands were maintained using continuous pumping. Before the rules went into effect, “converted cropland that was shifted to non-agricultural use was treated as exempt,” and “continuous pumping to preserve a converted cropland’s state did not impact a property’s entitlement to a prior converted cropland designation.” Cropland had to be “abandoned,” i.e., where crop production ceased and the land reverted to a wetland state, for the Corps to exercise jurisdiction before the memoranda “broadly extended the Corps’ jurisdiction and sharply narrowed the number of exempt prior converted croplands.”  

The Corps claimed that the memoranda were mere policy statements rather than legislative rules and were not subject to notice-and-comment requirements. The court disagreed, holding that the memoranda constituted substantive rules and were procedurally improper because no notice-and-comment procedures were used in promulgating them. The court’s order provides, in part, “[t]he Corps may not, without engaging in rulemaking using appropriate notice-and-comment procedures, determine the existence of wetlands in a manner inconsistent with [the court’s order].”