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Is permafrost really 'navigable waters'?

Is permafrost, the frozen ground of the remote, northern Alaskan frontier, really “navigable waters”?

That’s the question facing the U.S. Supreme Court in a case that could have broader implications because of its potential impact on the scope of the Clean Water Act and the interpretation of congressional appropriations legislation.

The dispute erupted in 2016 when the Army Corps of Engineers imposed control over tens of millions of acres of Alaska by designating the permafrost area “wetlands.”

The Pacific Legal Foundation argues in a brief that the 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 wetland.”

PLF is defending Richard Schok and his family, through Tin Cup LLC, who own about 500 acres. They wanted to relocate their company Flowline Alaska, which specializes in pipe insulation.

“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,” PLF said. “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 200 ares of permafrost ‘wetlands.'”

PLF said 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.”

The case came before the U.S. Supreme Court after the 9th U.S. Circuit Court of Appeals held that the determination by Congress longer applies.

“The consequences of the 9th Circuit’s opinion extend far beyond wetlands regulation, and affect many other instances where Congress has directed agency action in an appropriations law,” PLF said.

Lawyer Jeffrey McCoy of the PLF explained:  “The consequences to 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 soothing source of consistency for the regulated public during this time has been the Corps’ approach to determining what constitutes a ‘wetland’ within the scope of Clean Water Act jurisdiction. Since 1992, the Corps has used – and has repeatedly stated that it is required to use – the 1987 Manual when delineating wetlands,” he explained.

But now the Corp is claiming Congress required it to use the 1987 Manual for only one year, and the 9th Circuit agreed.

But that “de facto expansion” of federal jurisdiction created great uncertainty over the status of wetlands, PLF argued.

PLF’s petition asks the high court to reverse the 9th Circuit, which found that the word “will” does not actually mean “will.”

Specifically, Congress ordered that the Corps “will” use the manual from 1987 “until” a new one is developed.

PLF warned such a precedent could affect the interpretation of “appropriations legislation, touching all aspects of the federal government.”

“The 9th Circuit’s broad application of the presumption of that appropriations acts are limited to one fiscal year, and its rejection of the words ‘will’ and ‘until’ as words of futurity, have impacts beyond the immediate consequences of this case. The terms ‘will’ and ‘until’ are often used in appropriations bills, in many different contexts. Federal agencies and even this court have acted consistently with the ordinary meaning of these words, but now that practice will be upset by the decision below. If not vacated, the 9th Circuit’s decision will alter many appropriations of funds and congressional limits on agency action found in approprations statutes.”

“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.”