Briefing complete in wetlands jurisdictional challenge

January 12, 2017 | By DAMIEN SCHIFF

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.