Filing 43

CORRECTED ORDER GRANTING IN PART Plaintiffs' Moiton for Preliminary Injunction and for Summary Judgment; DENYING Defendants' Cross-Motion for Summary Judgment. Signed by Judge K. Michael Moore on 9/29/2010. (rg1)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Case No.1 0-22777 -CIV -MOORE/SIMONTON NEW HOPE POWER COMPANY, and OKEELANTA CORPORATION, Plaintiffs, vs. UNITED STATES ARMY CORPS OF ENGINEERS and STEVEN L. STOCKTON, in his official capacity as Director of Civil Works, United States Army Corps of Engineers, Defendants. -------------------------------/ CORRECTED ORDER GRANTING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND FOR SUMMARY JUDGMENT; DENYING DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT l THIS CAUSE came before the Court upon Plaintiffs' Motion for Preliminary Injunction and for Summary Judgment (ECF No. 18) and Defendants' Cross-Motion for Summary Judgment (ECF No. 27). These motions are now fully briefed. UPON CONSIDERATION of the Motions, the Responses, the Replies, the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order. I. BACKGROUND Plaintiffs in this case are Okeelanta Corporation ("Okeelanta"), a Florida sugarcane grower, and New Hope Power Company ("New Hope"), a renewable energy company. In this This Corrected Order includes typographical changes and no substantive changes have been made. 1 action, brought pursuant to the Administrative Procedure Act ("AP A"), Plaintiffs allege that Defendants United States Army Corps of Engineers ("the Corps") and Steven L. Stockton ("Stockton"), the Corps' Director of Civil Works, have improperly extended the Corps' jurisdiction under the Clean Water Act ("CWA") by enacting new legislative rules related to prior converted croplands2 without allowing the required public notice period. Specifically, Plaintiffs allege that Defendants' new rules have improperly extended the Corps' jurisdiction to situations where (1) prior converted croplands are converted to non-agricultural use; and (2) dry lands are maintained using continuous pumping. Under this new rule, wetland determinations are made based on what the property's characteristics would be if the pumping ceased. Therefore, Plaintiffs seek to have the new rules set aside. A. History of the CWA The CWA is a statute which seeks to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. 1251(a). Since 1972, pursuant to section 404 of the CWA, the Corps has regulated the "navigable waters" of the United States. See 33 U.S.C. 1344(a). "Wetlands" are considered "navigable waters" that are defined as "those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." 33 C.F.R. 328.3(b) (emphasis added). In 1977, the Corps released Final Rules that clarified that the phrase "under normal Prior converted croplands are "areas that, prior to December 23, 1985, were drained or otherwise manipulated for the purpose, or having the effect, of making production of a commodity crop possible." 58 Fed. Reg. 45008-01, at 45031 (Aug. 25, 1993). 2 2 circumstances" in the regulation does not refer to properties "that once were wetlands and part of an aquatic system, but which, in the past, have been transformed into dry land for various purposes." 42 Fed. Reg. 37122, 37122 (July 19, 1977). Thus, former wetlands that were altered to dry land before the CWA's passage were exempted from the delineation of ''wetlands.'' In 1986, the Corps released a Regulatory Guidance Letter ("RGL") stating: [I]t is our intent under Section 404 to regulate discharges of dredged or fill material into the aquatic system as it exists and not as it may have existed over a record period of time. The wetland definition is designed to achieve this intent. [] Many areas of wetlands converted in the past to other uses would, if left unattended for a sufficient period of time, revert to wetlands solely through the devices of nature. However, suc

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