September 27, 2017

Who knew that permafrost was “navigable water”?

By Damien M. Schiff Senior Attorney

Yesterday, we received an adverse decision in Tin Cup LLC v. U.S. Army Corps of Engineers. In this case, we represent a small, family-run Alaska pipe and steel fabrication firm in its challenge to the Corps’ assertion of Clean Water Act jurisdiction over some 200 hundred acres of permafrost on the company’s Fairbanks property. We argued that the Corps has no such authority because (a) the 1993 Energy and Water Appropriation Act requires the Corps to use its 1987 Wetlands Delineation Manual until the agency adopts a new final manual, (b) the Corps has never adopted a manual to replace the 1987 Manual, and (c) permafrost cannot qualify as a wetland under the 1987 Manual’s standards. The court ruled that (i) the 1993 Budget Act does not bind the Corps to use the 1987 Manual, and (ii) even if the Act did require the Corps to use the 1987 Manual, nothing in that manual is inconsistent with the Corps’ practice of “supplementing” it with regional mini-manuals like the Alaska Supplement.

As a loss, the decision is naturally disappointing. But the court’s reasoning is really quite remarkable. I am aware of no other decision holding that the Corps is free to abandon the 1987 Manual in total. Yet that is precisely the upshot of the court’s conclusion that the 1993 Budget Act’s strictures are limited only to the expenditure of funds from that Act, and thus have no continuing significance.*

To be fair, the court is correct that the 1987 Manual anticipates that future revision and refinement to the manual’s delineation methods will be necessitated by the general progress of science. But that commonplace observation is quite consistent with the 1993 Budget Act’s requirement that the 1987 Manual be used only until a new (and presumably updated) manual is promulgated. Of course, the Corps has never followed through on such a nationwide update, despite its admission that it would be practicable to do so. See Envtl. Assessment for Ak. Suppl., at 4 (estimating that “to update and republish the 1987 Manual . . . . would likely take an addition[al] 5-6 years”). Allowing the agency to effectively supersede its national manual with regional guides merely adds confusion and inconsistency to the administration of a statute already notorious for both.

*Also problematic is the court’s conclusion that the Corps’ interpretation of whether the 1993 Budget Act’s limitations extend beyond the 1993 fiscal year is entitled to deference. It seems somewhat implausible that Congress would intend to give an agency binding interpretive authority to determine how long a Congressional limitation on the agency’s discretion will last.

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