Court Contests Clean Water Act Regulation

A federal judge ruled against an attempt by the federal government’s U.S. Army Corps of Engineers to summarily extend and expand their federal powers under the Clean Water Act (CWA).


U.S. District Judge K. Michael Moore sided with New Hope Power Company and Okeelanta Corp. who argued the Army Corps had improperly extended their powers by attempting to enact new legislative rules without following proper procedure, including having a public notice period.

Under the Clean Water Act, the Corps has jurisdiction over navigable waters, including wetlands. But, according to current law, “prior converted croplands” are exempt from the Corps’ jurisdiction, because they were lawfully “converted” prior to the enactment of the CWA. In January 2009, the Corps summarily announced that for the first time these lands that had changed to non-agricultural use would now be regulated by the Corps. No notice or comment period accompanied the announcement.

The Court’s decision stems from New Hope Power Company’s plans to eliminate the long-distance hauling of ash by developing an environmentally sound ash monofill on land adjacent to its renewable power plant. Although state and local agencies had completed extensive reviews of the proposed monofill (and have since issued the appropriate permits), the Corps informed New Hope Power that it would apply a new rule to the proposed ash monofill, which would impose new federal barriers that would make the project cost considerably more.

Judge Moore rebuffed the federal agency’s attempt to illegally assert jurisdiction over the prior converted croplands, stating:

[T]here has been a definitive shift in the Corps’ substantive rules regarding what the Corps considers wetlands…. Before the Stockton Rules, prior converted cropland that was shifted to non-agricultural use was treated as exempt. Following the [new] Rules, the opposite was true. …Thus the Stockton Rules broadly extended the Corps’ jurisdiction and sharply narrowed the number of exempt prior converted croplands.

“This is a great victory for Florida against the federal government’s continued attempts to impose burdensome barriers to economic development in these trying times,” said Gaston Cantens, vice president of Florida Crystals Corp., referring to two similar attempts by the EPA to use the Clean Water Act to extend their power beyond their statutory authority and impose drastic regulations on Florida residents.

Both of Florida’s U.S. Senators, Democrat Bill Nelson and Republican George LeMieux, oppose the EPA’s actions and believe the federal government should back off.

A study by the Florida Department of Agriculture and Consumer Services and the University of Florida projects the EPA mandates could cost Florida up to $1.6 billion annually and eliminate 14,500 jobs. A survey of nine Florida water utilities estimated that a household’s sewer rates would increase by $62 per month, or more than $700 per year.

Source: Florida Crystals Corp. news release