February 10, 2015

You're in the Army now: don't follow the rules

By You're in the Army now: don't follow the rules

Under the Clean Water Act, the United States Army Corps of Engineers regulates wetlands throughout the nation.  Owners must obtain a permit from the Corps to develop, build upon, or otherwise alter their properties, if those properties contain “jurisdictional wetlands.”  The Corps’ rules specifically exclude from the permitting requirement properties that are separated from other wetlands by man-made barriers, such as roads or dikes.  The problem:  in an effort to expand its authority, the Corps is ignoring the regulatory exclusion.

Representing a small Alaska company, Universal Welding, PLF filed a lawsuit last week against the Corps for requiring the company to obtain a permit to expand operations on its property, which is separated from a jurisdictional wetland by a county-owned public road.  A clearer man-made barrier could not exist.  Accordingly, Universal Welding’s property in Fairbanks, Alaska, qualifies for the regulatory exclusion.

But the Corps says it is not bound by its own rules and can require Universal Welding to obtain a permit.  Does the Corps care that it is ignoring the rules?  No. It has drafted lawyers from the United States Department of Justice in Washington, D.C. to defend against PLF’s lawsuit, which is intended to enforce the rule of law against a bloated government bureaucracy seeking to impose its will in every corner of the nation under the guise of enforcing the Clean Water Act.  We will meet them in court.  Our motion for summary judgment can be found here:  MSJ – Universal Welding.

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Universal Welding, Inc. v. U.S. Army Corps of Engineers

The Clean Water Act gives the Army Corps of Engineers jurisdiction over wetlands, including wetlands that are adjacent to other jurisdictional waters such as navigable rivers or lakes. The law does not give the Corps jurisdiction over wetlands that are adjacent to other wetlands. Universal Welding is a family-owned steel and pipe fabrication business based in North Pole, Alaska. When it sought to expand its operations on a neighboring parcel that contains some isolated wetlands, the Corps stepped in and demanded multiple onerous conditions and a $70,000 “mitigation fee” to be paid to The Conservation Fund. Universal Welding is challenging the Corps’ ability to impose any conditions because it lacks jurisdiction over this parcel, which is not adjacent to any navigable waters, but only to other wetlands.

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