Ninth Circuit Holds that 1993 Budget Appropriations Language Does Not Compel the Corps of Engineers to use 1987 Wetlands Guidance Indefinitely

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On September 21, 2018, the U.S. Court of Appeals for the Ninth Circuit decided the case of Tin Cup, LLC v. U.S. Army Corps of Engineers. A divided panel of the Court of Appeals (although all members concurred in the result) held that legislative language in a 1993 appropriations act does not require the U.S. Army Corps of Engineers (Corps) to continue to use its 1987 Clean Water Act (CWA) wetlands guidance beyond 1993. The Ninth Circuit noted that it approaches the interpretation of budget bills somewhat differently.

In 1987, the Corps issued a guidance document which provides users—especially the Corps’ permit writers—with guidelines and methods to determine whether an area is considered “wetlands” under the CWA, thus triggering the regulatory jurisdiction of the Corps. In 1989, the Corps issued a new guidance document, whose provisions were so controversial that language was inserted into appropriations acts in 1992 and 1993 prohibiting the use of any federal funds to determine the presence of wetlands under the 1989 guidance or any subsequent guidance that was not adopted in accordance with the notice and comment provisions of the Administrative Procedure Act (APA). Meanwhile, in other legislation, the Congress appropriated funds to analyze federal wetlands regulation, which eventually resulted in the development of regional wetlands supplements by the Corps, including an Alaska Supplement.

In 2004, Tin Cup, LLC (Tin Cup) which owns a large tract of land in Alaska, sought and received permission from the Corps to use a large portion of its land for the temporary storage of pipe and other manufactured materials which would require the excavation and “laying down” of a gravel material, which is a pollutant regulated under the CWA. Because of delays, Tin Cup filed a new permit application, and the Corps then determined, using the Alaska Supplement, that most of Tin Cup’s land contained wetlands—a determination was not based on the 1987 guidance document. Tin Cup unsuccessfully challenged the Corps’ jurisdictional determination in the Corps administrative appeals processes before filing this lawsuit in May 2016, arguing that the 1992 and 1993 appropriations act required the Corps to continue to use the 1987 guidance until a new guidance document was adopted in accordance with the APA.

Both the District Court and now the Ninth Circuit have rejected this argument. The Court of Appeals held that since the 1993 budget act “does not contain a clear statement of futurity,” it is evident that the Congress did not intend to compel the Corps’ use of the 1987 guidance document on an indefinite basis. According to the Court of Appeals, the Congress therefore did not make a change to substantive law when it did not include the specific language the court needed to see, and there was no requirement to use the 1987 guidance document beyond 1993.

Judge Bea, who issued a concurring opinion, did not agree that the language in these appropriations bill should be so narrowly construed. However, he was persuaded that the Corps was entitled to use the Alaska supplement and find that these lands were indeed wetlands, triggering the Corps regulatory authority under the CWA, including mitigation authority.

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