Fairbanks, Alaska; May 3, 2016: The Army Corps of Engineers is illegally imposing its control over tens of millions of acres in Alaska by impermissibly labeling permafrost as “wetlands” subject to federal jurisdiction under the Clean Water Act. This classification violates the Corps’ own 1987 wetlands delineation manual, which Congress has ordered the agency to follow until such time as a new nationwide manual is adopted, and which does not recognize permafrost as jurisdictional wetlands.
So argues a lawsuit filed late yesterday by attorneys with Pacific Legal Foundation, a nationwide watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations.
PLF attorneys represent a family-owned business that has property in North Pole (near Fairbanks), over which the Corps has asserted jurisdiction as permafrost “wetlands.” Filed in U.S. District Court for the District of Alaska, PLF’s lawsuit challenges that assertion of jurisdiction, and seeks a court order that the Corps must follow Congress’s directive to use its 1987 manual on wetlands delineations, instead of improvising with broader definitions of what constitutes “wetlands,” as it has been doing in Alaska.
In 1987, the Corps issued a delineation manual to assist staff and the public in identifying wetlands pursuant to the agency’s regulatory definition. The manual’s criteria have the effect of excluding permafrost from being designated as wetlands.
In response to moves by the Corps to deviate unilaterally from these guidelines, Congress, under the Energy and Water Development Appropriations Act of 1993, mandated that the agency use the 1987 manual exclusively for wetlands delineations until “a final … manual is adopted.”
However, the Corps is flouting Congress’s mandate, by issuing regionally targeted “supplements” to the 1987 manual. These include an Alaska supplement that defines the “growing season” and other relevant criteria in an expansive way that contradict the 1987 manual and define permafrost as jurisdictional “wetlands.”
“This litigation is about the rule of law and the principle that bureaucrats must be bound by the commands of Congress,” said PLF Principal Attorney Damien Schiff. “Congress has told the Corps to use, for now, the formal guidelines that exclude permafrost from the Clean Water Act. The Corps has chosen to ignore this clear instruction from our elected representatives. The agency seems so intent on expanding its power over the land and people of Alaska, that it has arbitrarily and illegally redefined permafrost as federally controlled wetlands. Such administrative arrogance cannot be allowed to stand.
“The conclusion that permafrost is not wetlands is good policy as well as good law,” Schiff continued. “Traditionally, the Corps has justified regulation of wetlands because of their groundwater recharge, nutrient filtering, and flood control capabilities. But because it is frozen ground, permafrost cannot provide any of those functions. So the Corps’ permafrost power grab contradicts its own purported policy goals as well as Congress’s explicit directives.”
Richard Schok and his family, through its landholding company Tin Cup, LLC, own an approximately 500-acre parcel in North Pole, Alaska (near Fairbanks). The family also owns Flowline Alaska, a firm specializing in pipe insulation and related services for companies developing the North Slope oil fields. The family purchased the 500 acres with the intention of relocating its Flowline Alaska business (and most importantly its pipe storage) from its current leased location which the business has outgrown.
Concerned that some of the property might contain wetlands regulated under the Clean Water Act, the family applied to the Corps in 2008 for a jurisdictional determination. That application triggered a seven-year administrative process resulting in the 2015 issuance of a wetlands fill permit. In that permit, the Corps asserted jurisdiction over the vast majority of the Tin Cup property, including about 200 acres of permafrost “wetlands.” The family strongly objects to the permit for a number of reasons, including the permit’s condition that the family dedicate 20 acres of a vegetation buffer around the proposed development.
“We are grateful for the help of Pacific Legal Foundation, and we look forward to our day in court,” said Richard Schok. “It is extremely unfortunate that in the U.S. these days, private land owners need to seek relief in the judicial system from governmental overreach to be allowed to use privately owned land.”
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is the leading nationwide legal watchdog organization that litigates for limited government, property rights, free enterprise, and a balanced approach to environmental regulations, in courts across the country. PLF represents all clients free of charge.
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