January 12, 2017

Briefing complete in wetlands jurisdictional challenge

By Damien M. Schiff Senior Attorney

Today, we filed our reply brief on appeal in Universal Welding, Inc. v. United States Army Corps of Engineers. The case concerns the scope of a rarely addressed (and even more rarely applied) regulatory exception to the Corps’ wetland jurisdiction under the Clean Water Act. According to the Corps’ long-standing rule, the agency generally will assert jurisdiction over all wetlands that are “adjacent” (i.e., bordering, contiguous, or neighboring) to other jurisdictional waters. With one exception. The Corps’ regulation provides that the agency will not assert jurisdiction over wetlands that are adjacent to other wetlands. We contend that this exception applies to the wetlands on Universal Welding’s North Pole, Alaska, property.

This case represents an important follow-up to PLF’s 2010 victory in Great Northwest, Inc. v. U.S. Army Corps of Engineers, in which the federal district court in Fairbanks became the first in the nation to apply the adjacent wetlands exception to deny Corps regulatory control. Not surprisingly, the Corps in Universal Welding’s appeal tries to distance itself from the Great Northwest decision by advancing a purportedly “narrow” interpretation of the exception that is, in fact, an evisceration of it. We’re hoping for a hearing in the Ninth Circuit sometime this year.

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Universal Welding, Inc. v. U.S. Army Corps of Engineers

The Clean Water Act gives the Army Corps of Engineers jurisdiction over wetlands, including wetlands that are adjacent to other jurisdictional waters such as navigable rivers or lakes. The law does not give the Corps jurisdiction over wetlands that are adjacent to other wetlands. Universal Welding is a family-owned steel and pipe fabrication business based in North Pole, Alaska. When it sought to expand its operations on a neighboring parcel that contains some isolated wetlands, the Corps stepped in and demanded multiple onerous conditions and a $70,000 “mitigation fee” to be paid to The Conservation Fund. Universal Welding is challenging the Corps’ ability to impose any conditions because it lacks jurisdiction over this parcel, which is not adjacent to any navigable waters, but only to other wetlands.

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