Opening salvo in Clean Water Act appeal

August 25, 2016 | By DAMIEN SCHIFF

Earlier this week, we filed our opening brief on appeal in Universal Welding & Fabrication, Inc. v. United States Army Corps of Engineers.  Our client, Universal Welding, is a family-owned steel and pipe fabrication business, based in North Pole, Alaska.  The company wants to expand its operations to a neighboring parcel.  This parcel has about 14 acres of isolated, low-functioning wetlands.  Nevertheless, the Corps demanded that our client obtain a permit under the Clean Water Act to develop the property.  The Corps imposed a number of onerous conditions in that permit, among them that our client pay a $70,000 mitigation fee to The Conservation Fund.

We filed an action challenging the Corps’ jurisdiction over the property, relying on an often overlooked limitation within the Corps’ own regulations.  Those regulations provide that the Corps may assert jurisdiction over wetlands that are adjacent to other waters, unless those other waters are themselves wetlands.  In that instance, the Corps’ regulation declines to assert jurisdiction over such wetlands-adjacent-to-other-wetlands.

Our action relies on an earlier PLF victory, also out of Alaska, successfully applying the same regulatory exclusion, Great Northwest, Inc. v. U.S. Army Corps of Engineers.  In our opening brief on appeal in the Ninth Circuit, we argue that the Corps’ adjacent wetlands limitation means that the Corps cannot assert jurisdiction over two types of wetlands:  (i) those that are solely adjacent to other wetlands, and (ii) those that may be adjacent to non-wetland waters, but only by virtue of their adjacency to other wetlands.  We believe that this interpretation of the Corps’ adjacent wetlands limitation is reasonable because (A) it allows the Corps to regulate wetlands so long as they are immediately adjacent to non-wetland waters, but appropriately (B) it precludes the Corps from “leapfrogging” over intervening wetlands and pretending that an otherwise non-jurisdictional wetland is adjacent to a non-wetland water.