Has anyone had a case where property once filled under a valid ACOE permit, and after the permit expired, the ACOE deliberately indicated a permittee was NOT required to obtain a new permit for a "change in project purpose"?

Does anyone know of a legal case that was adjudicated on this point one way or another?
Thanks.

Give us some more details. If the property was filled under a valid permit and used as permitted, then the filled area is no longer wetland. No permit would be required to change use. Or, if there is still jurisdiction, it would be too difficult to prove that the Corps would not bother with it.

Andrew,

To summarize, the property was originally permitted to be filled for agriculture and was filled. Over the past 10-15 years the agriculture has become more tenuous (NAFTA, location, growing conditions, fertilizer/pesticide costs). We want to change the use from agriculture to mining (limestone) because market conditions are making another use imperative.

The property is bermed to contain its water regardless of the activity or rain event.

Your question and my question is whether or not the Corps retains jurisdiction over the property after the wetlands have been filled (under a valid permit)and mitigated for; and if anyone has dispostive documentation/instances whereby the Corps either indicated they lose jurisdication after filling; or has any one challenged the Corps on trying to get a new permit for a change in project purpose, and what were the outcomes of any of the above?.

Right now, they are insisting we submit for a new permit to change the land use (even though it is supposed to be left to local jurisdiction which was obtained) but they are using "project purpose" as a way to retain changes in land use and demanding a new permit be sought. What they are essentially saying is that only agriculture is permitted, and all the underlying zoning uses are not available unless the Corps provides a permit to do so. Given the difficulty of the original permitting and the time the Corps deliberates over a permit, by the time a new permit is obtained, the financial carry is likely insurmountable and the viability of the next use is dramatically impaired, leaving us potentially without any land use at all (and certainly during the interims).

Was the original permit a Corp permit, or a department of Agriculture permit? I am not familiar with Ag rules, but I believe the corps does retain jurisdiction if it was an ag permit.

It was a Corp permit, not a Ag permit.

What were the exact terms of the original permit application? Since you are changing the land use that the property was originally permitted for, I would think that its going to require a new permit, unless future land use changes were stipulated in the original permit.

Here is a link to Nationwide permit NW40 Agricultural Activities
http://www.spk.usace.army.mil//organizations/cespk-co/r.../nwp/2007/nwp-40.pdf

And here is a link to Mining Activities NW44
http://www.spk.usace.army.mil//organizations/cespk-co/r.../nwp/2007/nwp-44.pdf

It might be as simple as sending in a letter of change, but the expiration of the Ag permit is going to complicate the process.

Steve,
I noticed that you are located in Miami, Florida and this explains much of your problem. Under the US Constitution, the Corps is not authorized to regulate land use within the states, but over the years the Corps has slowly expanded its wetlands regulatory program to regulate land use.

In Florida, wetlands are regulated by the Corps, state agencies, and local governments, and there is much overlap, duplication, and inefficiency in the permitting process.

In Florida, California, New York, and other liberal eco-extremist states, the state and municipal agencies cooperate and support the Corps' land use regulation, and are incorporated into this regulatory process. Other states such as Texas and Mississippi strongly oppose the Corps' land-use regulation and as a result the Corps is limited to regulating only wetlands in these states. This is why your experience in Florida is not uniform throughout the nation.

Land-use regulation by the Corps stalls the permit process and introduces numerous legal conflicts, and is one of the factors that drives the never ending litigation which makes wetlands law unintelligible and has subsequently forced the EPA and Corps to curtail enforcement.

Thanks Johnny and Tommy
You are correct in that they have "waded" into land use and it seems there is no bright line (if there was such a thing with the Corps) determination to segregate land use vs project purpose.
What I was hoping for was some court cases or dispositive cases with the ACOE in which indicate JD is lost after filling utilizing a valid permit.
Thanks,
Steve