Tin Cup, LLC v. U.S. Army Corps of Engineers
Tin Cup, LLC, owns 455 acres in North Pole, Alaska, on which it runs a company, Flowline Alaska, that specializes in the fabrication of large pipe and steel structures needed to develop the North Slope oil fields. The successful company has outgrown its current location and wishes to move to a new site where it will have room for temporary storage of pipe and other manufactured material. The relocation requires placement of a gravel pad, construction of several buildings, and a railroad spur. Because the project requires excavation and laying down of gravel (defined as a “pollutant” under the Clean Water Act), Tin Cup sought permission from the Corps of Engineers.
Pursuant to the Clean Water Act, the Corps regulates the discharge of dredged and fill material into the “waters of the United States.” For decades, the Corps has interpreted that phrase to include at least some wetlands. But defining what exactly qualifies as a wetland has been confusing and controversial. To dispel the confusion and quell the controversy, Congress passed a law requiring the Corps to use its 1987 Wetlands Manual for all wetland delineations, unless and until the Corps adopts a new “final wetland delineation manual.” The Corps never adopted a new manual. Instead, it published various regional “supplements” that allow the Corps to take advantage of regional “variations” to justify expansion of the agency’s jurisdiction beyond that authorized by the 1987 Manual. The Alaska Supplement adopts such a generous standard for what qualifies as a wetland that it allows the Corps to regulate permafrost, i.e., frozen ground.
This lawsuit challenges the Corps’ permafrost rule within the context of the agency’s decision to grant an onerously conditioned permit to Tin Cup to develop its property. Although this case deals directly only with the permafrost rule, the larger legal issue raised may affect how the Corps applies (or rather, misapplies) its 1987 Manual and supplements throughout the country.