3. Attempt to extend jurisdiction over “prior converted” wetland (New Hope Power Company, et al. v. United States Army Corps of Engineers)

“This has been important in parts of the country for many years, particularly since ‘Swampbuster’ rules came into play in the 1985 farm bill. But we also have CWA rules that involve prior converted wetlands – and that was the issue in this case.

“If you’d converted wetland to cropland prior to the effective date of the farm bill, then you’re in the clear. You get a ‘prior converted’ status and you do what you want on that land: farm it, develop it.

“Well, the Army Corps of Engineers (ACE) and the EPA have concurrent jurisdiction over many issues with respect to wetlands.

“In this case, out of Florida, a tract of land was used before 1985. It was converted and previously used to grow sugarcane. In 1993, the ACE designated the property as ‘prior converted wetland’ and told the plaintiff it didn’t need to get a CWA permit to build a plant. They were putting up a renewable-energy facility on part of that land. (The plaintiff) then wanted to put in an ash monofill – a land-fill for waste for waste produced at the facility…

“The ACE promulgated some internal rules -- didn’t publish them for notice and comment in the Federal Register – and kind of changed their position regarding prior converted wetland. Then, they told the renewable energy plant they were in violation of the CWA.

“The plant sued saying ‘you can’t change the rules without making them public and complying with the Administrative Procedure Act.’ The court agreed and struck those rules down as invalid.

“It’s a big case for paring back by what’s seen by many as over-reaching by the ACE.”

2.  Supreme Court denies review in Clean Water Act case (The Cotton Council of America, et al. v. United States Environmental Protection Agency)

The issue in this one is: if you’re using pesticides in compliance with the Federal Insecticide Fungicide Rodenticide Act (FIFRA), are you exempt from the CWA permitting requirements? The CWA requires you get a permit before you discharge a pollutant into navigable waters of the United States.

“Well, if you have run-off of pesticides that were applied consistent with FIFRA, and they run-off into navigable water are you subject to the CWA requirements?”

“The trial court said there was. The CWA clearly covers a discharge of a pollutant from a point source. But pesticide residue is something that occurs after a discharge occurs.

“Federal courts are all over the board on this. Some have ruled pesticides applied consistent with FIFRA aren’t chemical waste – in other words, they aren’t pollutants so you don’t have to get a CWA permit. But some courts have reached that conclusion only when the pesticide leaves no residue.

“A lot of people in agriculture hoped a rehearing would be granted in this case. … And, if necessary, the U.S. Supreme Court would agree to hear the case and clarify the different outcomes in the lower courts.

“But the full 6th Circuit declined to rehear the case in early 2010 and, later in the year, the Supreme Court refuse to take it. So, there’s still some uncertainty.”