PLF appeals Alaska permafrost “wetland” case

October 31, 2017 | By JEFF MCCOY

Today, PLF filed a notice of appeal in Tin Cup, LLC v. Army Corps of Engineers. PLF represents a small, family-owned pipe fabrication company in Alaska which wishes to relocate to a new site for its expanding business. The relocation requires a placement of a gravel pad, construction of several buildings, and a railroad spur. Because the project requires the laying of gravel (a pollutant under the Clean Water Act), the Army Corps of Engineers is requiring a permit before construction to begin.

The “waters of the United States” that are purportedly affected by Tin Cup’s construction include some 200 acres of permafrost on the new property. The Corps believes that this frozen ground qualifies as a “wetland” covered by the Clean Water Act. But the Corps’ 1987 Wetlands Delineation Manual, which defines wetlands for the purpose of the Corps’ jurisdiction, excludes permafrost from the definition of a wetland. Furthermore, in 1993, Congress directed the Corps to continue to use the delineation standards in the 1987 Manual until the agency adopts a “final wetland delineation manual.” Because the Corps has never adopted a new “final wetland delineation manual, that should be the end of the case.

Instead of adopting a new Manual, the Corps has published various regional “supplements” to the 1987 Manual. Through these supplements, the Corps has attempted to modify what constitutes a wetland, and expand its jurisdiction beyond what is defined in the 1987 Manual. For example, the Corps’ 2008 Alaska Supplement—which was used to assert control over Tin Cup’s property—substitutes a different wetland delineation standard than that found in the 1987 Manual, a standard that purportedly authorizes the Corps to regulate permafrost.  But critical to our case, the supplements are not a new manual, nor can they accurately be called a “supplement,” because they directly contradict the language of the 1987 Manual.

Moreover, even if the regional supplements were a new “wetland delineation manual,” they would still not be “final.” 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. After the rule is submitted, Congress has a limited time to use streamlined procedures to prevent the rule from being adopted. Here, the Corps never sent the regional supplement to Congress pursuant to the CRA. Not only did the Corps violate Congress’ directive to use the 1987 Manual until a new manual was adopted, it is relying on rules that were never sent to Congress for approval.

Unfortunately, the district court held that the Corps is allowed to rely on the regional manuals like the Alaska Supplement when determining jurisdiction. The court didn’t just say that the regional supplements comply with Congress’ 1993 directive, however; it went even further and declared that the 1993 law has no force beyond the funds that were appropriated back in 1993, and thus the Corps now can use any manual it wants to. The court’s decision therefore allows the Corps to effectively supersede its national manual with regional guides, adding confusion and inconsistency to a statute already notorious for both. Hopefully the court of appeals will reverse the district court, and provide clear guidance for landowners and business owners that wish to use their land free of unreasonable federal land-use regulation.