When property is declared “wetlands” subject to Clean Water Act jurisdiction, the owner becomes subject to command-and-control decrees from federal regulators, almost as if he or she had ceded title to the land.
Because of these crippling consequences, all property owners should be alert to any federal strategy, wherever imposed, that foists Clean Water Act oversight on landowners without justification.
One such expansive federal land grab is going on in Alaska, and property owners nationwide — not least, farmers and ranchers — should monitor the legal efforts at push-back, because a victory against the feds here could rein in regulators elsewhere.
At issue is the vast expanse of Alaska that is covered by permafrost. By definition, this land is permanently frozen. Nevertheless, unelected federal bureaucrats believe they can regulate permafrost as “waters of the United States” under the Clean Water Act.
A new lawsuit by Pacific Legal Foundation challenges that doubtful proposition.
PLF attorneys represent the Schok family, who run a small business in North Pole, Alaska, involved in pipe fabrication, insulation, and related services for North Slope oil development. The company has outgrown its current location, and wants to expand to a neighboring location. The trouble is the Army Corps of Engineers.
The Corps is charged, along with the Environmental Protection Agency, with implementing the Clean Water Act. Under the Act, a property owner must first obtain a permit before dredging or filling the “waters of the United States.” For several decades, the Corps has interpreted that phrase to include “wetlands.”
Determining what is a wetland can be difficult. So in 1987 the Corps published a manual to assist in making wetland delineations. But shortly thereafter, the Corps and other federal agencies published another manual that — not surprisingly — dramatically expanded the definition of wetlands.
The controversy moved Congress to rein in the Corps. In 1993, Congress mandated that the agency use the 1987 manual exclusively for wetlands delineations until “a final wetland delineation manual is adopted.”
Since then, the Corps has chosen not to follow Congress’s direction. Instead, it has issued regional “supplements” to the 1987 manual. These supplements — which by themselves are not “final wetland delineation manual[s]” — provide region-specific criteria for wetland delineation that purportedly supercede anything to the contrary in the 1987 manual.
For instance, the Corps promulgated in 2007 an Alaska Supplement to the 1987 manual. It uses a relaxed standard to determine the dates of the “growing season,” an important factor in identifying wetlands.
According to the Alaska Supplement, the growing season is determined with reference to “vegetation green-up, growth, and maintenance as an indicator of biological activity occurring both above and below ground.”
In contrast, the 1987 manual defines the growing season to be that “portion of the year when soil temperatures at 19.7 inches below the soil surface are higher than biologic zero (5 degrees C).”
The critical reason for the Alaska Supplement’s divergence from the 1987 manual is to enable federal regulation of permafrost. Under the 1987 manual, permafrost would never qualify as a wetland because permafrost never reaches the required above-freezing soil temperature. In contrast, under the Alaska Supplement’s easy standard for the growing season, permafrost can be considered a wetland.
After the Corps asserted jurisdiction over their property, the Schok family filed suit in federal district court. Represented by PLF, they argue that the Corps has no jurisdiction over their property’s permafrost because it does not qualify as a wetland under the Corps’ 1987 wetlands manual.
The Schok family’s dispute with the Corps is not academic. Whether permafrost can be regulated under the Clean Water Act is an issue of keen importance, as it will affect the extent to which the Corps and EPA can use the Act as a federal land-use ordinance.
These agencies have long sought that improper end, a fact recognized by the late Supreme Court Justice Antonin Scalia. In a 2006 plurality opinion in Rapanos v. United States, he criticized the agencies’ claimed power to regulate “storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years.” He justly called this “an immense expansion of federal regulation of land use” that “would befit a local zoning board.”
Not only is federal regulation of permafrost legally untenable, it is scientifically questionable. EPA and the Corps seek to regulate wetlands in part because they can filter pollutants, regulate storm flows, and provide other water quality benefits. But permafrost can do little of this; because it is frozen, it functions largely like dry land.
The Schok family’s case raises an important issue of democratic governance. Should a federal agency be allowed to deviate from its published, nationally applicable rules just to expand its power? Does it make any sense that a piece of turf may qualify as a wetland in Mississippi but not in California?
To preserve individual liberty, it is essential that the government play by the rules consistently. Allowing federal agencies to make regional “exceptions” to their regulations raises a dangerous precedent — and threatens landowners nationwide with arbitrary attempts at federal control.
For all these reasons, it will be a happy day if the federal courts can return land-use decision-making to Alaskans rather than leave it in the hands of unelected regulators from the federal government.
Damien Schiff is a principal attorney with the Pacific Legal Foundation, a nonprofit legal watchdog that litigates for private property rights and limited government in courts throughout the nation. He represents the Schok family business in its lawsuit against the Corps.