September 11, 2014

New PLF wetlands lawsuit filed in Alaska

By Damien M. Schiff Senior Attorney

On Monday, Pacific Legal Foundation filed a new lawsuit on behalf of Universal Welding, a small family-run-and-owned steel fabrication business based in North Pole, Alaska.  The action, against the US Army Corp of Engineers, challenges that agency’s assertion of Clean Water Act jurisdiction over 14 acres of what the Corps has deemed “low-quality” wetlands that lie on Universal Welding’s property.  PLF’s lawsuit contends that these putative wetlands are beyond the power of the Corps to regulate because they are adjacent to other jurisdictional wetlands, and therefore exempt from regulation under the Corps’ own regulations.  The case relies on a prior PLF victory from the same judicial district, Great Northwest, Inc. v. US 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, based on the above-mentioned adjacent wetlands regulatory exception.  In Universal Welding’s case, the Corps contends that Great Northwest is inapplicable because Universal Welding’s property is separated from other wetlands by only one man-made barrier (a county road).  PLF’s lawsuit argues that this is a distinction without a difference.  A final decision in the case is expected sometime in early 2015.

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Universal Welding, Inc. v. U.S. Army Corps of Engineers

The Clean Water Act gives the Army Corps of Engineers jurisdiction over wetlands, including wetlands that are adjacent to other jurisdictional waters such as navigable rivers or lakes. The law does not give the Corps jurisdiction over wetlands that are adjacent to other wetlands. Universal Welding is a family-owned steel and pipe fabrication business based in North Pole, Alaska. When it sought to expand its operations on a neighboring parcel that contains some isolated wetlands, the Corps stepped in and demanded multiple onerous conditions and a $70,000 “mitigation fee” to be paid to The Conservation Fund. Universal Welding is challenging the Corps’ ability to impose any conditions because it lacks jurisdiction over this parcel, which is not adjacent to any navigable waters, but only to other wetlands.

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