TIN CUP LLC VS. U.S. ARMY CORPS OF ENGINEERS APPEALED
What if all of Alaska’s permafrost qualified as wetlands?
A court appeal filed on Oct. 31 may provide the answer to that question, and it has serious economic implications for everything from small businesses to the proposed Alaska LNG project.
Some 85 percent of Alaska may be designated as such, according to the federal government.
Pacific Legal Foundation filed the original lawsuit in 2016, challenging what is known as the “Alaska Supplement” to the U.S. Army Corps of Engineers’ 1987 Wetlands Delineation Manual. That’s the manual that details what is, and what is not a wetland.
The lawsuit is on behalf of Tin Cup LLC, a family-owned business that operates a pipe manufacturing company well known in the oil patch: Flowline.
The North Pole company owned by the Schok family is trying to build on 200 acres of permafrost land it owns.
The lawsuit says that the Corps doesn’t determine adequately whether permafrost is wetlands, and sweeps all permafrost — vast areas of Alaska — into federal jurisdiction.
Any land that is subject to Clean Water Act jurisdiction becomes so severely regulated by federal agencies that it’s economically nearly impossible to develop.
Tin Cup LLC owns 455 acres in North Pole, and its company Flowline Alaska makes pipe and other steel items for the North Slope oil industry. Having outgrown its current location, the company wants to move to a location where it will have room to store pipe and other materials. That’s going to require a gravel pad, some buildings, and a railroad spur.
The U.S. Army Corps of Engineers defines gravel as a pollutant under the Clean Water Act, so Tin Cup is having to ask permission to use its property.
According to the Pacific Legal Foundation, “defining what exactly qualifies as a wetland has been confusing and controversial.
“To dispel the confusion and quell the controversy, Congress in 1993 passed a law requiring the Corps to use its 1987 Wetlands Manual for all wetland delineations, unless and until the Corps adopts a new “final wetland delineation manual.” The Corps never adopted a new manual.”
The Corps didn’t follow the law, but developed regional supplements that allowed it to expand its jurisdiction.
The Alaska Supplement brings frozen ground into the wetlands category. The agency has granted what Tin Cup believes is “an onerously conditioned permit to Tin Cup to develop its property.”
The district court of Alaska rejected Tin Cup’s challenge of that ruling and the case is now on appeal, with Pacific Legal Foundation as the company’s legal advocate.