Regulatory creep: asserting jurisdiction over the land next door

The Clean Water Act gives the Army Corps of Engineers authority to regulate the discharge of dredge and fill material into “waters of the United States.” The Corp has issued numerous administrative rules expanding its reach to a variety of lakes, streams, waters, ponds, and wetlands. With regard to wetlands, however, the rule allows jurisdiction only to those wetlands that are adjacent to other regulated waters. This rule now threatens Universal Welding’s attempt to expand its operations to a neighboring parcel.

Universal Welding is based near Fairbanks, Alaska. It builds steel buildings, catwalks, platforms, and other structures, and provides pipeline supports, tanks and oil well drilling for the oil and gas industry. Its business has been successful and it wishes to expand to create a staging area to lay down raw steel and finished modules prior to delivery. To do this, the company would need to put down a gravel bed that would affect approximately 14 acres of low-functioning, degraded wetlands. These wetlands are separated by a county road from other wetlands, and are not adjacent to any other regulated water. Nonetheless, the Corps asserted jurisdiction.

Universal Welding challenged the Corps’ jurisdiction and initially prevailed in administrative hearings. However, after the Environmental Protection Agency intervened, the administrative officer upheld the Corps’ jurisdiction. Represented by PLF, the company sued in federal court, relying on a prior PLF victory from the same judicial district, Great Northwest, Inc. v. U.S. Army Corps of Engineers. That case held that property that is separated from a jurisdictional water by two man-made barriers, with wetlands in between each barrier, is non-jurisdictional. The district court upheld the administrative decision. The Ninth Circuit allowed the Corps’ increasing control of wetlands.