Major Landowner Win - Court Blocks U.S. Army Corps of Engineers Attempt to Extend Jurisdiction Over “Prior Converted” Wetland

November 3, 2010 | Roger McEowen and Erin Herbold

A Florida federal district court has issued an order blocking an attempt by the U.S. Army Corps of Engineers (COE) to expand its powers over “prior converted cropland” under the Clean Water Act (CWA) without first subjecting its rulemaking to the applicable administrative requirements.  In New Hope Power Company, et al. v. United States Army Corps of Engineers, the court invalidated new rules that would have given the COE jurisdiction over prior converted croplands – croplands that were lawfully converted before the enactment of the CWA.  The case has important implications for many landowners.

Overview

The CWA was enacted in 1972 with the primary goal of restoring the nation’s rivers and lakes to a quality which would ensure their use for swimming and recreation, and protect the fish and wildlife that swim and feed in them.  The CWA set two goals:  (1) to eliminate the discharge of pollutants into navigable waters by 1985; and (2) to insure that by 1983 the quality of the nation’s waters would be fit for recreational use and capable of sustaining fish and wildlife.  Those goals were largely achieved by the early 1990s. 

At its core, the CWA eliminates the discharge of any pollutants into the nation’s waters without a permit.  The CWA recognizes two sources of pollution.  Point source pollution is pollution which comes from a clearly discernable discharge point, such as a pipe, a ditch, or a concentrated animal feeding operation.  Under the CWA, point source pollution is the concern of the federal government.  Nonpoint source pollution, while not specifically defined under the CWA, is pollution that comes from a diffused point of discharge, such as fertilizer runoff from on open field.  Control of nonpoint sources is to be handled by the states through enforcement of state water quality standards and area-wide waste management plans.  Under 1977 amendments, irrigation return flows are not considered point sources.

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