NAHB Sues Army Corps of Engineers Over Wetlands Classification

NAHB has joined in a lawsuit with the American Farm Bureau Federation and the United States Sugar Corporation that challenges a U.S. Army Corps of Engineers decision to begin treating certain farm fields as wetlands, affecting both the value of the property and the process for developing or building on it.

American Farm Bureau Federation et al. v. U.S. Army Corps of Engineers resembles a suit brought simultaneously by New Hope Power Company and Okeelanta Corporation. Both suits have been before Judge K. Michael Moore of the U.S. District Court of the Southern District of Florida and challenge the Corps’ recent attempts to improperly change a 17-year-old regulation that provides that land used for agriculture since at least 1985 can no longer be treated as wetlands.

In 1993, the Corps adopted a rule establishing that agricultural lands converted from wetlands prior to 1985 — or “prior converted croplands” — would be excluded from regulation under the Clean Water Act. Therefore, if a farmer decides to utilize land that has been excluded from regulation for some other use or to sell it to a residential or commercial builder, there is no need to get a new jurisdictional determination or go through the Clean Water Act permitting process.

However, in a 2009 memorandum, Corps Director of Civil Works Steven Stockton approved a new standard to regulate these agricultural lands when there is a change in their use. The regulatory uncertainty caused by this action is what prompted the lawsuits from NAHB and other industry groups.

In a recent positive development, this October, Judge Moore ruled in the New Hope Power case that the Corps could not change its policy without going through the usual federal process of giving public notice and offering a set time for comments from stakeholders or other interested parties. However, as yet there is no indication whether the government will appeal this ruling to the U.S. Court of Appeals for the 11th Circuit.