Is frozen ground "navigable water"?

May 03, 2016 | By DAMIEN SCHIFF

So asks Tin Cup LLC v. United States Army Corps of Engineers, a new lawsuit filed late yesterday by PLF attorneys in federal district court in Alaska.  (Check out our press release).  Representing a small, family-owned pipe fabrication company, PLF challenges the Army Corps of Engineers’ special “Alaska Supplement” for wetland jurisdiction under the Clean Water Act.  Pursuant to that 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 legislated in the early 1990s to require the Corps to use its 1987 Wetlands Manual for all wetland delineations, unless and until the Corps adopts a new “final wetland delineation manual.”

Well, the Corps has never adopted a new manual.  Instead, it has published various regional “supplements” to the 1987 Manual.  The upshot of these supplements is to allow the Corps to take advantage of regional “variations” to justify an expansion of the agency’s jurisdiction over against what its 1987 Manual would countenance.  A case in point is the Corps’ Alaska Supplement, which adopts a very generous standard for what qualifies as a wetland—so generous that it would allow the Corps to regulate permafrost, i.e., frozen ground.  Of course, the 1987 Manual would not allow such an ambitious assertion of authority, one reason why Congress mandated its use and certainly the main reason why the Corps has disregarded it.

Our 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.