Adverse decision in Alaska wetlands case

August 30, 2017 | By DAMIEN SCHIFF

This morning, the Ninth Circuit upheld the Army Corps of Engineers’ Clean Water Act jurisdiction over the Fairbanks, Alaska, property of our client, Universal Welding. The case, Universal Welding & Fabrication Co. v. United States Army Corps of Engineers, addressed a rarely invoked exception to the agency’s Clean Water Act jurisdiction over wetlands. The Corps’ regulations provide that the agency can regulate all wetlands adjacent to other jurisdictional waters, except wetlands that are adjacent to other jurisdictional wetlands. In our case, Universal Welding’s property is bordered by a county road, on the other side of which is a large wetland that extends for about a mile-and-a-half to Drainage Channel C, a tributary of the Chena Slough and Chena River. We argued that Universal Welding’s 14 acres of low-functioning wetlands were at most adjacent to the large wetland on the other side of the road. That made the two sets of wetlands adjacent to each other and thereby qualified our client’s property for the exception. Towards the end of the administrative process preceding our lawsuit, the Corps actually agreed that the exception applied. But then EPA intervened and “elevated” the matter and—surprise—executed a jurisdictional volte-face, concluding that our client’s wetlands were adjacent to the non-wetland Channel C regardless of the intervening wetland. One might call this the “leap-frog” recapture interpretation.

But whatever one calls it, the Ninth Circuit liked it. The Court’s decision explains that, under principles of judicial deference to agency interpretation, the Court must defer to the Corps’ interpretation of its own regulations, even if a better interpretation is available. And, as a bit of jurisprudential salt in the legal wound, the Court added for good measure that our interpretation would have lost anyway, even without deference.

Today’s decision, although disappointing, may however prove to be of limited influence, given the Court’s decision not to publish it. That means that it is not precedential, and lower courts in the Ninth Circuit will not be bound by it.