http://www.eswr.com/?p=139

Did you have anything to do with this Johnny .

Whatever your perspective is on this issue, don't worry! Nothing more will happen at the federal level until at least November 3rd. And then, with a few hundred pages of words, it will be made perfectly clear. The end result is another economic stimilus package. The lumber and paper industry will benefit, there will be lots of legal and consulting opportunities, and the govt. will hire more regulators to keep up with the paper trail.

The Corps' Jacksonville District in Florida issued guidelines about "normal circumstances" and "prior converted wetlands" which were subsequently adopted as offical policy nationally (Stockton Rules). The Corps enforced these guidelines when it performed jurisdictional determinations that erroneously captured non-jurisdictional waters. The land owners sued and the Court overturned the Stockton Rules because the Corps failed to follow the rule making procedures of the Administrative Procedures Act which requires public notice and comment along with other formal procedures such as cost and benefit analysis.

The current Rapanos Guidance memorandum along with most of its supporting documents are also "guidelines" and not official regulations (see footnote 17 of Rapanos Guidance memo). After the SWANCC decision in 2001, the agencies decided that the official rule-making process is too burdensome so instead they have issued "guidance documents, memos, letters, and technical manuals" to implement and enforce wetlands regulations, and expand jurisdiction.

The overturn of the Stockton Rules demonstrates that jurisdictional determinations, permits, and enforcement actions which are based on unofficial guidance documents can be successfully challenged in court. It is far better to avoid legal action and get a correct jurisdictional determination up front, but the the Stockton Rules demonstrate that this is not always possible.

Land owners and wetlands practioners alike should demand that only applicable statutes, official regulations, and relevant case law are used to determine CWA jurisdiction. Guidance documents that have no binding legal authority should not be used to determine jurisdiction.

This message has been edited. Last edited by: Johnny Stevens,

It may be of interest to those of you who are CWA court case junkies that in this case, while on face value it was an APA rule making issue, it’s underlying issue was actually who can designate a wetland is a PCC the use of atypical situations to claiming or declining jurisdiction after the PCC designation is lost. Pay no attention to the fact that the site in question was never designated as a PCC by the NRCS, and thus subject to CWA jurisdiction regardless.
This leaves several big questions that must be answered by a court, legislative action, or rulemaking. Does a site need to officially be designated as PCC to be exempt from CWA and who has the authority to designate PCC? This court indirectly decided that an official PCC designation is not needed for the site to be considered exempt for CWA. In addition, it infers that the Corps stating in their corresponded that it was PCC is legally sufficient to be treated as PCC. I highly doubt the NRCS will acquiesce designation of PCC to the Corps and it is even more unlikely that any agency will agree that just because you manipulate a wetland for agriculture purposes, it is PCC.

Fear not , I am sure we will see a rulemaking effort ( after the election of course ) about who can designate PCC, does a change in use removing land from agricultural use strip that designation from the land , and can atypical situation criteria be used on lands striped of their PCC designation.

quote:

PCC

I just glanced at this thread and thought it might be useful to others to tag some of the undefined abbreviations like PCC. Here is a link that does a good job of defining that.

http://www.ecy.wa.gov/programs/sea/wetlands/pcc.html

An important fact to note is that the vast majority of original wetlands in the US have been lost to agriculture, far more than to urban developement, mineral developement or other factors.

Now, what is APA?

I am also curious about how the refarming of wetland area that was previously farmed but abandoned will be dealt with.