Corps cannot treat permafrost as navigable waters

February 15, 2018 | By JEFF MCCOY

Today, PLF filed an opening brief in the Ninth Circuit in Tin Cup, LLC v. Army Corps of Engineers. The case is brought by a small, family-owned pipe fabrication company that wishes to relocate to a new site for its expanding business. The company has not been able to start the relocation, however, because the Army Corps of Engineers has asserted jurisdiction over about 200 acres of permafrost on the land.

The Corps says that the permafrost on the land is “navigable waters” within the meaning of the Clean Water Act. This determination is based on a document the Corps adopted in 2007 that applies only in Alaska and defines permafrost as wetlands.  As Tin Cup points out in its opening brief, the use of this document is unlawful.

In 1992, Congress passed a law requiring the Corps to use a 1987 manual to delineate wetlands “until a final wetlands delineation manual is adopted.” One of the concerns Congress sought to address with the law was the increased regionalization of (and inconsistent) wetlands determinations. Congress wanted the Corps to adopt national standards for determining what constitutes a wetlands so that property owners would know whether the Corps had regulatory authority over their property.

But the Corps never adopted a new final wetlands delineation manual. Instead it adopted ten regional documents setting out inconsistent standards for determining wetlands. The Alaska document contradicts the 1987 manual and is the only regional document that allows the Corps to regulate permafrost. Clearly this document is neither a true supplement to the 1987 manual (as it contradicts that manual), nor a new manual (as it does not set out national standards). Yet the Corps relied on it to assert jurisdiction over Tin Cup’s property.

Moreover, the Corps is relying on this document despite it not being lawfully in effect. Under the Congressional Review Act, before any rule can go into effect, and an agency can rely on it, the agency must submit a copy of the rule to Congress and the Government Accountability Office. Once a rule is submitted, Congress then has a set time-period to pass a joint resolution under streamlined procedures that, if signed by the President, will invalidate the rule.

The Corps defining permafrost as “navigable waters” is counterintuitive. But even worse is that the Corps reached its conclusion without following the proper procedures. A federal agency cannot restrict a business owner’s use of his property based on unreasonable and unlawful rules. Hopefully, the Ninth Circuit will invalidate the Corps’ decision in this case.