January 12, 2017

And briefing complete in another wetlands challenge

By Damien M. Schiff Senior Attorney

Also today, we filed our reply brief on summary judgment in Tin Cup, LLC v. U.S. Army Corps of Engineers. This case, also arising out of Alaska, challenges the Corps’ practice of “supplementing” its national wetlands delineation manual with regional variations. The regional supplement that applies to Alaska uses a standard for growing season much more relaxed than that found in the national manual. And — surprise! — that relaxation just happens to expand the Corps’ regulatory authority, in this case over permafrost. Our lawsuit contends that the Corps is required by law to use its existing national manual unless and until it adopts a new or revised national manual (which it hasn’t done). We expect a decision from the District Court of Alaska sometime later this year.

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Tin Cup, LLC v. U.S. Army Corps of Engineers

Representing Tin Cup, a family-owned pipe fabrication business, PLF filed a lawsuit challenging the “Alaska Supplement” to the Corps of Engineers’ 1987 Wetlands Delineation Manual, arguing that it fails to provide a legally adequate standard for determining the presence of wetlands under the Clean Water Act. This supplement sweeps permafrost – covering vast swaths of Alaksa – under federal jurisdiction, significantly reducing the ability of property owners to make productive use of their land. Relying the supplement, the Corps improperly asserted jurisdiction over 200 acres of permafrost on Tin Cup’s property. The district court of Alaska rejected Tin Cup’s challenge and the case is now on appeal.

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