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Tabb Lakes, Ltd. v. United States

ELR Citation: 19 ELR 20672
Nos. No. 87-635-N, 715 F. Supp. 726/(E.D. Va., 11/07/1988)

The court holds that the Corps of Engineers lacks jurisdiction to require a permit under §404 of the Federal Water Pollution Control Act for development of an isolated wetland, because it failed to follow the Administrative Procedure Act's (APA's) notice and comment procedures for a memorandum that the Corps used as the basis for its assertion of jurisdiction. The memorandum from the Corps' headquarters in Washington, D.C., to its district offices set forth seven standards that would indicate sufficient interstate commerce connection to warrant the exercise of jurisdiction over isolated waters and wetlands, including the use or potential use of a habitat by certain migratory birds that cross state lines. The court holds that the memorandum is not an interpretive rule exempt from the APA's rulemaking procedures, since it effected a change in Corps policy intended to have the full force and effect of a substantive rule, and the Corps relied on the memorandum in reaching its jurisdictional determination. The court also holds that the memorandum is not a general statement of policy exempt from the rulemaking requirements of the APA. The Corps intended the memorandum to be binding and to take effect immediately.

Counsel for Plaintiff
Douglas Hansen
14908 Jefferson Davis Highway, Woodbridge VA 22191
(703) 491-4136

Counsel for Defendants
Michael D. Rowe
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Cynthia R. Martin
U.S. Army Corps of Engineers
803 Front St., Norfolk Va 23510
(804) 441-7601

John F. Kane, Ass't U.S. Attorney
407 U.S. Courthouse, 600 Granby St., Norfolk VA 23510
(804) 441-6331