If frozen ground is ‘navigable water,’ Supreme Court should set bureaucrats straight

December 31, 2018 | By JEFF MCCOY

Originally published by The Hill, December 31, 2018.

Richard Schok runs a family pipe fabrication business in North Pole, Alaska, and he wants to move his expanding business to another area in town. What started out as a simple permitting matter turned into a federal case — that is, a case of federal agencies ignoring congressional requirements when making decisions. Richard has asked the Supreme Court to hear the case and reaffirm that Congress, not the executive branch, makes the laws.

At issue in Tin Cup, LLC v. U.S. Army Corps of Engineers is whether permafrost (frozen ground at high altitudes or in polar regions that rarely thaw because of persistent cold temperatures) on the business’s new property is “navigable water” subject to regulation under the Clean Water Act. In 1992, Congress mandated that when answering that question the Army Corps of Engineers use a specific, 1987 manual “until a final wetlands delineation manual is adopted.”

The 1987 manual says that the Army Corps of Engineers cannot regulate permafrost, and the Army has not adopted a new wetlands delineation manual. So Schok argued that the Army Corps could not require a permit to build on 200 acres of permafrost on the new property.

The Army Corps disagreed. But the agency did not just argue that the 1987 manual allows permafrost regulation; it argued that they did not have to use the 1987 manual at all, despite the 1992 law. The Ninth Circuit Court of Appeals agreed with the Corps, merely because the statutory language appeared in an appropriations act.

Appropriations acts are, as their name suggests, bills where Congress appropriates money for various agencies and departments of the federal government. But while they are unique in that one way, they are still laws the same as any other law. Congress can, and often does, direct agency action when it passes these bills.

Yet the Ninth Circuit stated that because Congress’ statement that the Army Corps “will” use the 1987 manual “until” it adopts a new manual appeared in an appropriations act, the requirement ended in 1993. The court concluded that the words “will” and “until” do not require an agency to do anything beyond a single fiscal year.

Yet the terms “will” and “until” often are used in appropriations bills, in many different contexts. Federal agencies, and even the Supreme Court, have acted consistently with the ordinary meaning of these words. Because of Congress’s frequent use of these words in appropriations bills, the consequences of the Ninth Circuit’s opinion extend far beyond wetlands regulation.

One consequence would occur during a government shutdown. Congress often appropriates money to other parts of the federal government to be used “until expended.” During recent government shutdowns, the courts and some agencies have remained open because they did not use all their funds during the fiscal year. But under the Ninth Circuit’s understanding, those funds were not available to be spent past one year, and the entire federal government must close during a government shutdown.

Similarly, Congress often uses “will” in appropriations acts to direct how money is spent. By telling an agency that some portion of funds will be used for certain programs, Congress can ensure that public funds will be spent according to the judgments reached by Congress, not according to the whims of individual bureaucrats. The Ninth Circuit’s interpretation of “will” jeopardizes those portions of appropriations acts that direct how funds are to be spend.

And while the costs to appropriations legislation are significant, the consequences to wetlands regulation alone are also enough to warrant Supreme Court review. Determining whether an area is subject to regulation under the Clean Water Act is controversial and difficult. Decades of regulations and resulting litigation have attempted to define who and what are covered by the scope of the act.

Perhaps the sole soothing source of consistency for the regulated public during this time has been the Corps’ use of the 1987 manual. Since 1992, the Corps has used — and repeatedly has stated that it is required to use — the 1987 manual when deciding what wetlands are covered by the Clean Water Act. But when Schok filed his case, the Corps suddenly changed its position to argue that Congress only required it to use 1987 manual for one year.

The Ninth Circuit acquiesced in this de facto expansion of the Corps’ jurisdiction over wetlands, thereby exacerbating the great uncertainty that already impacts wetland regulation. Hopefully the high court will take the case and confirm that unelected bureaucrats cannot ignore congressional requirements.

Jeffrey McCoy is an attorney with Pacific Legal Foundation in Sacramento California. He represents Tin Cup, LLC in a suit against the United States Army Corps of Engineers.