Is frozen ground a ‘navigable water’? PLF asks Supreme Court to decide

December 18, 2018 | By JEFF MCCOY

Is permafrost—ground that remains continuously frozen for years on end—a “navigable water”? That’s what government regulators who enforce the Clean Water Act want us to believe. The Environmental Protection Agency (EPA) believes that permanently frozen ground can be regulated as a “wetland.”

To most people, that probably sounds like a stretch. Which is why Pacific Legal Foundation filed a petition today asking the U.S. Supreme Court to hear a case about whether permafrost is a “navigable water.”

The question stretches back to 1992, when Congress directed the Army Corps of Engineers to use the 1987 Wetlands Delineation Manual to determine what types of wetlands can be regulated under the Clean Water Act. This Congressional mandate was intended to ensure a measure of consistency and predictability in wetlands designations.

The Ninth Circuit, however, held that Congress’ mandate to use the manual no longer applies, merely because the statutory language appeared in an appropriations act.

As our petition explains, the consequences of the Ninth Circuit’s opinion extend far beyond wetlands regulation, and would affect many other instances where Congress has directed agency action in an appropriations law. Yet the consequences for wetlands regulation are significant enough on their own to warrant the Supreme Court’s review.

As many PLF cases demonstrate, 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 source of consistency for the regulated public during this time has been the Corps’ approach to determining what constitutes a “wetland” under the Clean Water Act. Since 1992, the Corps has used—and has repeatedly stated that it is required to use—the 1987 manual when delineating wetlands. In this case, however, the Corps suddenly changed its position to argue that Congress only required it to use 1987 manual for one year.

The Ninth Circuit majority acquiesced in this de facto expansion of the Corps’ jurisdiction over wetlands, thus adding to the great uncertainty that already surrounds wetland regulation.

Hopefully, the high court will take the case and confirm that unelected bureaucrats cannot suddenly change decades long agency practice to ignore congressional requirements.