September 29, 2010

Farmers dodge a bullet!

By Farmers dodge a bullet!

Author: Reed Hopper

For decades, the Corps of Engineers has exempted from federal regulation so called prior converted croplands.  These are wetlands that have been put to agricultural use prior to 1986.  In 1993, the Corps issued a formal rulemaking that stated these wetlands would continue to be exempt from federal regulation unless the wetlands were abandoned and the area regained its wetland features.  According to the Corps, there are over 53 million acres of prior converted croplands throughout the country.  That's equivalent to half the land mass of the State of California.  Thousands of landowners have relied on this exemption for years.  But in 2009, the Corps issued a letter changing everything.  For the first time, the Corps claimed it would regulate any prior converted cropland that changed use from agricultural to nonagricultural use regardless of whether it had been abandoned or regained its wetlands features. Okeelanta Corp. (a Florida sugarcane grower) and New Hope Power Company (a renewable energy company) promptly challenged the new policy in court arguing that the Corps had changed rules without going through the rulemaking process which requires public notice and comment.  In court, the Corps claimed the change was just an internal policy shift.  But today, a Florida Judge determined that the policy shift was a complete rule change that should have been subjected to public review.  The Judge invalidated the illegal rule and directed the Corps to use the formal ruelmaking process if it wants to adopt the new policy.

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