June 9, 2010

PLF Clean Water Act victory in Alaska

By PLF Clean Water Act victory in Alaska

Author:  Damien M. Schiff

Yesterday PLF scored a major victory in Great Northwest, Inc. v. United States Army Corps of Engineers, a case concerning a challenge to the Corps' regulatory authority over wetlands.  Great Northwest is a gravel mining operation in Fairbanks, Alaska.  Its property's wetlands are located about a third of a mile from the Tanana River, a navigable waterbody.  Between the river and Great Northwest's property are additional wetlands, disected by a railroad embankment and a Corps-constructed drainage channel.

Under the Corps' regulations, the agency will not assert CWA jurisdiction over wetlands that are "adjacent" to other jurisdictional wetlands.  Here, the Corps contended that Great Northwest's wetlands were adjacent to the Tanana River, notwithstanding that in between the river and Great Northwest's property were several other wetlands, disected by those manmade barriers.  PLF, representing Great Northwest in the District of Alaska, therefore argued that Great Northwest was entitled to the Corps' jurisdictional exemption for wetlands adjacent to other wetlands, because Great Northwest's wetlands were adjacent to the wetlands in between the property and the Tanana River.

In a decision on cross-motions for summary judgment, the court agreed with PLF and ruled that the Corps does not, per its own regulations, have jurisdiction over Great Northwest's wetlands.  The court's decision is the first ever to give extended treatment to the meaning and scope of the Corps' "wetlands adjacent to wetlands" exception.

What to read next