Petition for Writ of Certiorari — Tin Cup, LLC, Petitioner v. Army Corps of Engineers

Supreme Court briefDec 18, 2018

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Appendix A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIN CUP, LLC, an Alaska

limited liability company,

Plaintiff-Appellant,

No. 17-35889

D.C. No.

4:16-cv-00016-TMB

OPINION

UNITED STATES ARMY CORPS

OF ENGINEERS,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief Judge, Presiding

Argued and Submitted June 13, 2018

Anchorage, Alaska

Filed September 21, 2018

Before: Sidney R. Thomas, Chief Judge, and

Consuelo M. Callahan and Carlos T. Bea,

Circuit Judges.

Opinion by Chief Judge Thomas;

Concurrence by Judge Bea

Appendix A-2

SUMMARY*

Environmental Law

The panel affirmed the district court’s summary

judgment in favor of the U.S. Army Corps of Engineers

in a lawsuit that sought to set aside the Corps’

decision for an excavation permit; and held that

language in a 1993 appropriations act did not require

the Corps to continue to use a 1987 guidance manual

for delineating wetlands under the Clean Water Act.

The Clean Water Act prohibits “the discharge of

any pollutant” without an appropriate permit; this

prohibition applies to “the waters of the United

States;” and the term “pollutant” includes dredged

and fill material. 33 U.S.C. §§ 1311(a), 1362(7), and

1362(6), (12). In 1987, the Corps issued a guidance

document concerning the wetland delineation process.

The 1993 Budget Act directed that the Corps continue

to use the 1987 Manual.

The Corps issued plaintiff a permit that would

allow it to discharge gravel fill into 118 acres of

wetlands, but included mitigation conditions that

plaintiff found onerous. Plaintiff argued that the 1992

and 1993 Budget Acts required the Corps to continue

to use the 1987 Manual and its definition of a growing

season, without considering a 2007 Alaska

Supplement.

The panel held that it would only conclude that an

appropriations act made permanent changes in

substantive law if Congress was clear about its

This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

Appendix A-3

intentions. The panel further held that, absent a clear

statement of futurity, a provision in an appropriations

act is only in force for the fiscal year of the

appropriation. The panel concluded that plaintiff had

not shown a clear statement from Congress that the

1993 Budget Act enacted a mandatory, permanent

change in substantive law.

Judge Bea concurred in the majority’s ultimate

conclusion that the district court did not err in

granting summary judgment to the Corps, but he

wrote separately because he would hold that the 1993

Budget Act contained sufficient words of futurity to

bind the Corps after the 1993 fiscal year.

COUNSEL

Jeffrey W. McCoy (argued), Damien M. Schiff, and

James S. Burling, Pacific Legal Foundation,

Sacramento, California, for Plaintiff-Appellant.

John D. Gunter II (argued), Michael T. Gray, and

Amanda S. Berman, Trial Attorneys; Eric Grant,

Deputy Assistant Attorney General; Jeffrey H. Wood,

Acting Assistant Attorney General; Environment &

Natural

Resources

Division,

United

States

Department of Justice, Washington, D.C.; for

Defendant-Appellee.

OPINION

THOMAS, Chief Judge:

In this case, we consider what should be

considered the growing season in Alaska’s permafrost

and, specifically, whether language in a 1993

appropriations act requires the U.S. Army Corps of

Engineers (the “Corps”) to continue to use a 1987

Appendix A-4

guidance manual for delineating wetlands under the

Clean Water Act. We conclude that it does not, and we

affirm the district court.

The Clean Water Act (the “Act”) prohibits “the

discharge of any pollutant” without an appropriate

permit. 33 U.S.C. § 1311(a). This prohibition applies

to “the waters of the United States,” 33 U.S.C.

§ 1362(7), and the term “pollutant” includes dredged

and fill material, such as gravel or sand, 33 U.S.C.

§§ (6), (12). In the period relevant to this case,

regulations defined “waters of the United States” to

include wetlands that are adjacent to other covered

waters. 33 C.F.R. § 328.3(a)(7). The Act allows the

Corps to issue permits for discharging dredged or fill

material into waters of the United States. 33 U.S.C.

§ 1344(a).

In 1987, the Corps issued a guidance document “to

provide users with guidelines and methods to

determine whether an area is a wetland for purposes

of” the Act. U.S. Army Corps of Eng’rs, Corps of

Engineers Wetlands Delineation Manual (Jan. 1987)

(the “1987 Manual”) at 1. The 1987 Manual directs

that the wetland delineation process be guided by

three criteria: hydrophytic vegetation, hydric soils,

and wetland hydrology. Under the 1987 Manual,

satisfaction of the wetland hydrology criterion

generally requires the presence of a “growing season,”

defined as a season in which soil temperature at 19.7

inches below the surface is above 5°C. In 1989, the

Corps joined other federal agencies in adopting a new

manual to supersede the 1987 Manual. Fed.

Appendix A-5

Interagency Comm. for Wetland Delineation, Federal

Manual for Identifying and Delineating Jurisdictional

Wetlands (Jan. 1989) (the “1989 Manual”). The 1989

Manual employed less stringent methods for

delineating methods wetlands than the 1987 Manual.

In response to complaints from business groups

and legislators, Congress limited the use of the 1989

Manual in the Energy and Water Development

Appropriations Act of 1992, Pub. L. No. 102-104, 105

Stat. 510 (Aug. 17, 1991) (the “1992 Budget Act”). The

1992 Budget Act prohibited the use of funds to

delineate wetlands under the 1989 Manual “or any

subsequent manual not adopted in accordance with

the requirements for notice and public comment of the

rulemaking process of the Administrative Procedure

Act.” 105 Stat. at 518. The 1992 Budget Act also

required the Corps to use the 1987 Manual to

delineate any wetlands in ongoing enforcement

actions or permit application reviews. Id.

The following year, Congress enacted the Energy

and Water Development Appropriations Act of 1993,

Pub. L. 102-377, 106 Stat. 1315 (Oct. 2, 1992) (the

“1993 Budget Act”). The 1993 Budget Act stated in

pertinent part:

None of the funds in this Act shall be used to

identify or delineate any land as a “water of

the United States” under the Federal Manual

for Identifying and Delineating Jurisdictional

Wetlands that was adopted in January 1989

or any subsequent manual adopted without

notice and public comment.

Furthermore, the Corps of Engineers will

continue to use the Corps of Engineers 1987

Appendix A-6

Manual, as it has since August 17, 1991, until

a final wetlands delineation manual is

adopted.

106 Stat. at 1324.1

At the same time that Congress mandated

continued use of the 1987 Manual, Congress

appropriated money to the U.S. Environmental

Protection Agency (“EPA”) to contract with the

National Academy of Sciences to analyze federal

wetlands regulation. See Department of Veterans

Affairs and Housing and Urban Development and

Independent Agencies Appropriations Act of 1993,

Pub. L. 102-389, 106 Stat. 1571 (Oct. 6, 1992); H.R.

Rep. No. 102-710, at 51 (1992); H.R. Conf. Rep. No.

102-902 at 41. The ensuing report, published in 1995,

recommended a number of changes to the Corps’

wetlands delineation process. See Nat’l Research

Council., Comm. on Characterization of Wetlands,

Wetlands: Characteristics & Boundaries (1995) at 3.

One suggestion was that the 1987 Manual’s approach

to “growing season” should either be abandoned

altogether or replaced by region-specific criteria for

wetland delineation. Id. at 102. In response, the Corps

issued a series of regional “supplements” to the 1987

Manual. These supplements provide region-specific

criteria for wetland delineation. To date, the Corps

has issued ten such supplements covering the entire

United States.

Following the parties’ form, we refer to these two paragraphs

as the “first paragraph” and the “second paragraph,”

respectively.

Appendix A-7

The Corps published its regional supplement for

Alaska in 2007. U.S. Army Corps of Eng’rs, Regional

Supplement to the Corps of Engineers Wetland

Delineation Manual: Alaska Region (Version 2.0)

(Sept. 2007) (the “Alaska Supplement”). Most relevant

to this lawsuit, the Alaska Supplement used a

different indicator for determining the presence of a

growing season than used in the 1987 Manual. Rather

than focusing on soil temperature, the Alaska

Supplement’s definition focuses on “vegetation greenup, growth, and maintenance as an indicator of

biological activity occurring both above and below

ground.” Alaska Supplement at 48.

Tin Cup, LLC (“Tin Cup”) owns a 455-acre parcel

in North Pole, Alaska, which it holds for its parent

company, Flowline Alaska. Flowline Alaska seeks to

use the parcel for the temporary storage of pipe and

other manufactured material. The project will require

the excavation and laying down of gravel material,

which is a regulated “pollutant” under the Clean

Water Act. See 33 U.S.C. § 1362(6).

In 2004, Tin Cup obtained a permit from the

Corps for the relocation project. Tin Cup proceeded to

clear approximately 130 acres from the site, but by

2008, the company had not commenced gravel

extraction or fill placement. Thus, in 2008, Tin Cup

submitted a new permit application. The Corps

examined the extent of wetlands on the site and issued

a new jurisdictional determination in November 2010,

concluding that wetlands were present on 351 acres of

Tin Cup’s 455-acre site, including about 200 acres of

permafrost.

Appendix A-8

In December 2010, Tin Cup administratively

appealed the Corps’ jurisdictional determination. Tin

Cup argued that the site’s permafrost cannot qualify

as wetlands under the 1987 Manual. Tin Cup argued

that, under the 1987 Manual, an area can only be

considered a wetland if it has a growing season, and

that the 1987 Manual defines a growing season as the

season in which soil temperature at 19.7 inches

belowground level is at or above 5°C. Tin Cup claimed

that the “discontinuous permafrost” on its property

did not reach that temperature, and thus that there

was no growing season.

In August 2011, the Corps review officer rejected

Tin Cup’s permafrost argument. The officer ruled in

his appeal decision that the Alaska Supplement

“recognizes the existence of permafrost and the need

to rely instead upon locally or regionally developed

methods to determine growing season dates . . . as well

as by direct observation of vegetation.” Under the

Alaska Supplement, the officer noted, “soil

temperature at 19.7 inches below the surface is

essentially irrelevant to determining the growing

season in Alaska.”

In October 2012, the Corps issued Tin Cup an

initial proffered permit. The permit would allow Tin

Cup to discharge gravel fill into 118 acres of wetlands

(out of the 165 acres that Tin Cup had applied to fill).

However, the permit included mitigation conditions

that Tin Cup found onerous. Tin Cup lodged further

administrative appeals, which were unsuccessful. The

Corps proffered in November 2013 a final permit to

Tin Cup, subject to the same mitigation conditions,

and it affirmed that permit in March 2015.

Appendix A-9

In May 2016, Tin Cup initiated the present

lawsuit, seeking to set aside the Corps’ permitting

decision. On its motion for summary judgment, Tin

Cup argued that the 1992 and 1993 Budget Acts

continue to require that the Corps use the 1987

Manual and its definition of a growing season, without

considering the Alaska Supplement. The district court

granted summary judgment to the Corps, holding that

most of the language in the 1992 and 1993 Budget

Acts was limited to the use of funds appropriated in

those statutes. Tin Cup appeals that order.

We review the district court’s grant of summary

judgment de novo. Ocean Advocates v. U.S. Army

Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005). We

agree with the district court that the 1993 Budget Act

does not require the Corps to continue to use the 1987

Manual’s guidelines to delineate wetlands, and we

affirm.

While appropriations acts are “Acts of Congress”

that can change substantive law, we interpret them

somewhat differently than other statutes. An

appropriation of funds is generally not permanent or

available continuously without an express provision.

31 U.S.C. § 1301(c). The same rule applies to

provisions of appropriations acts altering substantive

law. Such provisions “are generally only ‘in force

during the fiscal year of the appropriation and do not

work a permanent change in the substantive law.’”

Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d

797, 806 n.19 (9th Cir. 2005) (quoting Seattle Audubon

Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir. 1991)). This

Appendix A-10

principle dates to the Supreme Court’s opinion in

Minis v. United States, 40 U.S. (15 Pet.) 423 (1841), in

which Justice Story stated:

It would be somewhat unusual, to find

engrafted upon an act making special and

temporary appropriations, any provision

which was to have a general and permanent

application to all future appropriations. Nor

ought such an intention on the part of the

legislature to be presumed, unless it is

expressed in the most clear and positive

terms, and where the language admits of no

other reasonable interpretation.

Id. at 445. There is thus “a very strong presumption”

that if an appropriations act changes substantive law,

it does so only for the fiscal year for which the bill was

passed. Bldg. & Constr. Trades Dep’t, AFL-CIO v.

Martin, 961 F.2d 269, 273 (D.C. Cir. 1992).

To rebut this presumption, a party must point to

“a clear statement of ‘futurity,’ such as ‘hereafter.’”

Nat. Res. Def. Council, 421 F.3d at 806 n.19; see also

United States v. Vulte, 233 U.S. 509, 514 (1914)

(holding that appropriations acts did not permanently

change substantive law because they did not contain

“words of prospective intention”). We will only

conclude that an appropriations act has made a

permanent change to substantive law if Congress is

clear about its intentions. Absent a clear statement of

futurity, a provision in an appropriations act is only

in force for the fiscal year of the appropriation.

The provision at issue in the 1993 Budget Act does

not contain a clear statement of futurity. It is

Appendix A-11

significant that the provision does not contain the

word “hereafter.” “Hereafter” is the most common

word of futurity. Government Accountability Office,

Principles of Federal Appropriations Law (4th ed.

2016 rev.) at 2-86. Congress used “hereafter”

throughout the 1993 Budget Act to identify the

continuing availability of certain appropriations, see

106 Stat. at 1325, 1330–32, 1338, 1339, 1342–43, and

continuing prohibitions on certain types of spending,

see 106 Stat. at 1331, 1343. When Congress uses

particular language in one part of a statute and omits

it elsewhere, “it is generally presumed that Congress

acts intentionally and purposely in the disparate

inclusion or exclusion.” San Francisco v. U.S. Dep’t of

Transp., 796 F.3d 993, 999 (9th Cir. 2015) (quoting

Russello v. United States, 464 U.S. 16, 23 (1983)).

Even if the provision’s second paragraph constituted

a command that the Corps use the 1987 Manual, the

absence of “hereafter” suggests that Congress did not

intend the provision to bind the Corps indefinitely.

Tin Cup argues that the words “will” and “until”

in the provision’s second paragraph are words of

futurity. No authority exists holding that those words

in an appropriations bill, absent more, indicate

futurity. Nonetheless, Tin Cup argues that if “will”

and “until” were not construed as words of futurity,

then the second paragraph would be superfluous. If

Congress only meant to mandate the use of the 1987

Manual in fiscal year 1993, Tin Cup argues, then its

aim was accomplished by the first paragraph alone.

That paragraph prohibited any funds from being used

in fiscal year 1993 to delineate wetlands in accordance

with the 1989 Manual, and the 1987 Manual was the

only available alternative.

Appendix A-12

These two paragraphs reasonably can be

interpreted as complementary statements. The first

paragraph is a command about what the Corps could

not do during fiscal year 1993, and the second

paragraph is a description of what Congress expected

it to do instead. Indeed, the first paragraph uses the

mandatory term “shall,” while the second paragraph

uses the word “will.” The Supreme Court has

distinguished descriptive “will” statements from

mandatory “shall” statements. See Norton v. Southern

Utah Wilderness Alliance, 542 U.S. 55, 69 (2004)

(concluding that a statute’s requirement that an

agency “shall” act in accordance with a land use plan

was a mandatory statement, but that a statement in

the land use plan about what the agency “will” do was

not “a binding commitment”). The 1993 Budget Act’s

statement that the Corps “will continue to use” the

1987 Manual, 106 Stat. at 1324, should be viewed in

these terms. The provision recorded Congress’s

understanding of the Corps’ intention to delineate

wetlands using the 1987 Manual. It does not bind the

Corps to using the 1987 Manual. Had Congress

intended to bind the Corps, it would have used the

word “shall.” This interpretation comports with the

“well-established canon of statutory interpretation

that the use of different words or terms within a

statute demonstrates that Congress intended to

convey a different meaning for those words.” S.E.C. v.

McCarthy, 322 F.3d 650, 656 (9th Cir. 2003)

(collecting cases).

This distinction between “shall” and “will”

statements is consistent with other provisions of the

1993 Budget Act. Congress seemed to use “will”

statements to describe the consequences of mandatory

commands. In one provision, Congress “directed” the

Appendix A-13

Corps to continue an ongoing feasibility study and

then stated that the study “will consider the

agricultural benefits of using both traditional and

nontraditional methods . . .” 106 Stat. at 1316. In

another provision, Congress stated that funds “shall

be available” for infrastructure studies and then

stated that those funds “will be administered by” the

Department of Energy. 106 Stat. at 1334. The Corps’

interpretation of the provision at issue—that “shall”

connotes a mandatory obligation and “will” connotes a

description of what Congress expected to happen—is

a reasonable reading of the statute. It cannot be said

that the language of the statute “admits of no other

reasonable interpretation” than the interpretation

that Tin Cup has proffered. Minis, 40 U.S. at 445.

Tin Cup urges us to conclude that the structure of

the paragraphs in the 1993 Budget Act implies that

the second paragraph contains a clear statement of

futurity. Tin Cup observes that the 1987 Manual

provision appears as a separate paragraph from the

preceding provision on appropriations for fiscal year

1993, and it argues that this suggests that the two

provisions are independent. Thus, Tin Cup argues, the

first paragraph applies to fiscal year 1993 and the

second paragraph enacts an unrelated permanent

change in the law.

More relevant for discerning futurity is the

relationship between the contents of the two

paragraphs. See GAO, Principles of Federal

Appropriations Law at 2-90 (stating that when a

“provision bears no direct relationship to the

appropriation act in which it appears, this is an

indication of permanence . . . The closer the

relationship, the less likely it is the provision will be

Appendix A-14

viewed as permanent”). The two paragraphs here bear

a close relationship: they both concern the manual to

be used in making wetlands delineation. This weighs

strongly in favor of viewing the second paragraph as a

descriptive clarification of the first, rather than as an

independent provision establishing permanent law.

The fact of a paragraph break does not on its own

imply that the second paragraph was meant to be

independent of the first paragraph.

Tin Cup observes that elsewhere in the 1993

Budget Act, Congress did not use a paragraph break

when restricting uses of funds appropriated in fiscal

year 1993. See, e.g., 106 Stat. at 1323–24. It argues

that this suggests that a paragraph break was used

intentionally to set apart the second paragraph as an

independent provision. However, the structure of

these provisions bolster’s the Corps’s interpretation of

the 1987 Manual provision. In each of the examples

that Tin Cup cites, the second provision was clearly

mandatory: it used the word “shall” to set a limitation

on how an appropriation in the first provision was to

be used. See 106 Stat. at 1323–24. In the paragraphs

at issue in this case, the fact that Congress did not

string together the two provisions and did not use the

words “Provided” or “Provided further” further

suggests that the second paragraph was not

mandatory and was instead a description of the

consequences of the mandate in the first paragraph.

Tin Cup has not shown a clear statement from

Congress that the second paragraph in the 1993

Budget Act enacted a mandatory, permanent change

in substantive law.

Appendix A-15

III

Given that we require a clear statement of

futurity in order to give permanent effect to a

provision of an appropriations act, we need not delve

into legislative history to explain the 1993 Budget

Act’s provisions. See Bldg. & Constr. Trades Dep’t,

AFL-CIO, 961 F.2d at 274 (observing that “legislative

history can only help to explain a statute; it cannot

reconstruct it”). Given the strong presumption against

appropriations acts enacting permanent changes in

substantive law, the absence of a clear statement of

futurity in the 1993 Budget Act is dispositive. The

1993 Budget Act prohibited the Corps from using the

1987 Manual during fiscal year 1993, and Congress

included a second paragraph to explain what it

expected the Corps to do instead.

AFFIRMED.

_________________________________________________

BEA, Circuit Judge, concurring in judgment:

I agree with the majority’s ultimate conclusion

that the district court did not err in granting summary

judgment to the Army Corps of Engineers (the

“Corps”). However, because I think that the 1993

Budget Act contained sufficient words of futurity to

bind the Corps after the 1993 fiscal year, I write

separately.

As discussed by the majority, the Corps makes

determinations regarding what is a “wetland” within

the meaning of the Clean Water Act (“CWA”) and its

implementing regulations. The first such manual was

Appendix A-16

published in 1987 (the “1987 Manual”). The 1987

Manual identified three key elements that define the

presence of wetlands: (1) the presence of vegetation

adapted to saturated soil (“vegetation”); (2) the

presence soil that is permanently or seasonally

saturated by water (“hydric soil”); and (3) appropriate

hydrologic conditions, such as the saturation of soil

during the growing season (“hydrology”). Importantly

for this case, an appendix to the 1987 Manual

instructs that the “growing season” can be identified

as the days that the soil at a depth of 19.7 inches

reaches a temperature above 5 degrees Celsius.

In 1989, the Corps released a new version of the

wetlands manual (the “1989 Manual”). However, in

appropriations acts passed in both 1992 and 1993,

Congress sought to prevent the Corps from using the

1989 Manual to make wetlands determinations.

In the 1992 Act, Pub. L. No. 102-104, 105 Stat. 510

(1991) (the “1992 Budget Act”), Congress prohibited

the use of funds appropriated by the bill to delineate

wetlands under the 1989 Manual or any subsequent

manual “not adopted in accordance with the

requirements for notice and public comment.” Title I,

105 Stat. at 518. The 1992 Budget Act also required

the Corps to use the 1987 Manual to delineate any

wetlands in any ongoing enforcement actions or

permit application reviews. Id. These provisions

effectively required the Corps to abandon the 1989

Manual and revert to the 1987 Manual during the

1992–1993 fiscal year.

Because the 1992 Budget Act was an

appropriation bill, it was necessary to revisit the issue

of the wetlands Manual during the 1993

appropriations process. The 1993 Budget Act again

Appendix A-17

prohibited the Corps from using any funds to

implement the 1989 Manual or any subsequent

manual “adopted without notice and public comment.”

Title I, 106 Stat. at 1324. However, the 1993 Budget

Act included an additional provision which stated that

“the Corps of Engineers will continue to use the Corps

of Engineers 1987 Manual, as it has since August 17,

1991, until a final wetlands delineation manual is

adopted.” Title I, 106 Stat. at 1324.

The 1993 Budget Act also appropriated funds for

the National Research Council (“NRC”) to make

recommendations to EPA and Congress regarding

future wetlands regulation. H.R. Rep. No. 102-710, at

51. In 1995, the NRC recommended a number of

changes to the wetlands delineation process. See Nat’l

Research Council, Comm. on Characterization of

Wetlands, Wetlands: Characteristics & Boundaries

(1995) (National Research Council Report). Among

those changes, the NRC recommended that the Corps

should either abandon its focus on “growing seasons”

or that wetland determinations should become more

regionally focused.

In response, the EPA has issued a number of

“regional supplements” to the 1987 Manual. In 2007,

after public notice and comment, the Corps published

its regional supplement for Alaska (the “Alaska

Supplement”), which provides specific guidance

regarding the identification of wetlands in Alaska.

Tin Cup, LLC owns a 455-acre parcel of land near

North Pole, Alaska. Tin Cup seeks to build a pipe

fabrication and storage facility on the parcel. The

relocation project will entail the placement of a gravel

Appendix A-18

pad, as well as the construction of several buildings

and a railroad spur. Thus, the project will require the

excavation and laying down of gravel material, which

is a regulated “pollutant” under the Clean Water Act.

See 33 U.S.C. § 1362(6).

The Corps examined the extent of wetlands on the

site and issued a jurisdictional determination,

concluding that wetlands were present on 351 acres of

Tin Cup’s 455-acre site. The Corps’ wetlands

determination included about 200 acres of permafrost,

which it found qualified as a wetland using the Alaska

Supplement. The Corps issued Tin Cup a permit for

the project, but the permit included special conditions

requiring Tin Cup to, among other things, construct a

“reclaimed pond and riparian fringe” of between 6 and

24 acres total in size and a 250-foot-wide buffer

around the riparian fringe totaling at least 23 acres.

Tin Cup objected to the Corps’ jurisdictional

determination, arguing that the permafrost was not a

“wetland.” Tin Cup argued that because the

permafrost’s ground temperature at a depth of 19.7

inches never rises above 5 degrees Celsius, the

permafrost areas have no “growing season” within the

meaning of the 1987 Manual and thus were not

wetlands. After a series of regulatory proceedings and

appeals, including two administrative appeals under

the APA, the Corps’ jurisdictional determination and

conditions remained unchanged.

Dissatisfied with that result, Tin Cup filed the

instant lawsuit in the District of Alaska, seeking

review of the Corps’ permit pursuant to the judicial

review provisions of the Administrative Procedure

Act, 5 U.S.C. §§ 701–706. The parties filed crossmotions for summary judgment. The district court

Appendix A-19

granted The Corps’ motion for summary judgment

and denied Tin Cup’s motion for summary judgment.

Tin Cup appealed the district court’s summary

judgment order to this court. We review the district

court’s order granting summary judgment de novo.

Ocean Advocates v. U.S. Army Corps of Eng’rs, 402

F.3d 846 (9th Cir. 2005).

As the majority correctly states, the first key issue

we are called upon to decide is whether the 1993

Budget Act requires the Corps to use the 1987 Manual

until it adopts a new manual via notice and comment.

We have held that “[a]s a general rule of thumb,

appropriations acts are in force during the fiscal year

of the appropriation and do not work a permanent

change in the substantive law.” Seattle Audubon Soc’y

v. Evans, 952 F.2d 297, 304 (9th Cir. 1991). “To rebut

this presumption takes a clear statement of ‘futurity,’

such as ‘hereafter.’” Nat. Res. Def. Council v. U.S.

Forest Serv., 421 F.3d 797, 806 (9th Cir. 2005).

Ultimately, “[t]he question is one of legislative intent.”

Evans, 952 F.2d at 304.

The relevant portion of the 1993 Budget Act

contains two provisions. In the first paragraph,

Congress prohibited the Corps from using any funds

appropriated by the 1993 Budget Act to implement the

1989 version of the Corps’ wetlands manual or any

subsequent manual “adopted without notice and

public comment.” Title I, 106 Stat. at 1324. Next, the

1993 Budget Act includes a provision that states that

“the Corps of Engineers will continue to use the Corps

of Engineers 1987 Manual, as it has since August 17,

1991, until a final wetlands delineation manual is

adopted.” Title I, 106 Stat. at 1324.

Appendix A-20

In my view, the plain language of the 1993 Budget

Act demonstrates Congress’s clear intent that the

Corps continue using the 1987 Manual beyond the

1993–1994 fiscal year. The relevant provision

contains two indications of futurity. First, the Act

provides that the Corps “will continue” to use the 1987

Manual. The word “will” is a word of futurity. See

Merriam-Webster Dictionary 603 (Home and Office

Ed., 1995) (defining “will” to mean “used as an

auxiliary verb to express . . . simple futurity”).

Second, the Act tells the Corps how long it must

continue to use the 1987 Manual: “until” it adopts a

new manual. Congress has explicitly recognized the

word “until” as a word of futurity in the context of

appropriations bills. See H.R. Rep. No. 88-1040, at 55

(1963) (the “most common technique” to make funds

“available for longer than a one-year period” is to add

the words “‘to remain available until expended’”). The

combination of “will” and “until” in the 1993 Budget

Act demonstrate Congress’s clear intent for the Act to

bind the Corps beyond the 1993–1994 fiscal year.

The majority’s primary response on this point is

the note that the 1993 Budget Act does not use the

word “hereafter.” The majority argues that,

“hereafter” is the most common word of futurity in

appropriations bills, that Congress used “hereafter”

elsewhere in the 1993 Budget Act, and that the

absence of “hereafter” in this provision demonstrates

that Congress did not intend to express futurity.

This argument is unpersuasive. The majority

cites the Government Accountability Office’s (“GAO”)

“Red Book” on the interpretation of appropriations

bills for the proposition that “hereafter” is the most

common word of futurity. See Government

Appendix A-21

Accountability

Office,

Principles

Federal

Appropriations Law (4th ed. 2016 rev.) at 2-86. But

the Red Book itself recognizes that “hereafter” is not

the only word of futurity and that, consistent with

past congressional use, “until” can also be used to

express futurity in certain contexts. See id. at 2-26.

We have previously recognized the expertise of the

GAO in this area and have relied on the Red Book in

interpreting appropriations bills. See, e.g. Indus.

Customers of Nw. Utils. v. Bonneville Power Admin.,

767 F.3d 912, 923 (9th Cir. 2014). The majority

provides no basis to rely on that expertise selectively.

The majority is, of course, correct that Congress

used the word “hereafter” in other portions of the 1993

Budget Act when expressing futurity. But the fact

that Congress used one word of futurity in some

contexts and another word of futurity in another

context is hardly remarkable. This is particularly true

when both the GAO and Congress itself have

recognized that there are other ways, including the

use of the word “until,” to express futurity clearly.

Next, the majority contends the Corps is not

bound by the second paragraph of the 1993 Budget Act

because the paragraph is a description of what the

Corps will do, not a command. The majority bases this

argument on the use of the word “will” instead of the

word “shall.” The majority argues that by using the

word “will,” Congress intended to describe what the

Corps had already stated it would do if it could not use

the 1989 Manual (namely, use the 1987 Manual) and

Appendix A-22

did not intend to command the Corps to take that

course of action.1

But the word “will” can be a command and is often

indistinguishable from the word “shall.” See Black’s

Law Dictionary 1771 (Revised 4th Ed. 1968) (defining

“will” as “[a]n auxiliary verb commonly having the

mandatory sense of ‘shall’ or ‘must’”). The context of

the provisions does not provide a reason to deviate

from this plain meaning. In fact, Congress’s use of

“furthermore” to start the second paragraph,

immediately following a paragraph that contained a

command, demonstrates that Congress understood

The majority cites Norton v. S. Utah Wilderness All., 542 U.S.

55, 69 (2004) for the proposition that “will” is not necessarily

binding. But Norton is distinguishable. In Norton, the Bureau of

Land Management (“BLM”) was required to create land

management plans for certain parcels of federal land. Id. at 58–

61. One of the land management plans stated that the BLM “will”

conduct a monitoring program. Id. When the BLM did not

conduct a monitoring program, environmental plaintiffs sued,

arguing that the BLM was bound to fulfill its commitments

under the land management plan. Id. The district court

dismissed the claims, but the Tenth Circuit reversed. Id. The

Supreme Court reversed the Tenth Circuit, holding that the use

of the word “will” in the land management plans did not create a

binding commitment on the part of the BLM. Id. at 67–72.

Norton is distinguishable from this case for at least two

reasons. First, it did not concern the interpretation of an

appropriations bill, but rather the interpretation of words in a

BLM land management plan. Second, Norton involved a

unilateral commitment by the BLM. Norton did not consider

whether “will” was a “command,” because there was no one to

command. The question was whether “will” created a binding

commitment, not whether it was being used to command a

specific course of action by another party.

Appendix A-23

the second paragraph to contain a second, additional

command.

Additionally, if the majority is correct, then the

second paragraph is likely superfluous, running afoul

of the canon that statutes should be construed so as to

give effect to all of their provisions. See Corley v.

United States, 556 U.S. 303, 129 (2009); see also

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 174 (2012). If all

Congress meant to achieve through the 1993 Budget

Act was to bar the Corps from using funds to enforce

the 1989 Manual for the coming fiscal year (which is

what the majority and the Corps contend), it could

have stopped writing after the first paragraph.

Congress had no need to describe in a nonbinding

fashion what the Corps would do as a result of its

command.

In short, “will” and “until” are words of futurity

that express Congress’s intent for the 1993 Budget Act

to bind the Corps beyond the 1993–1994 fiscal year.

Thus, the much stronger reading of the 1993 Budget

Act is that Congress was commanding the Corps to

continue its use of the 1987 Manual until it adopted a

new wetlands manual. As a result, I would hold that

the Corps was required to apply the 1987 Manual to

Tin Cup’s case.

III

Nonetheless, I would still hold that the district

court did not err in granting the Corps’ summary

judgment on Tin Cup’s claims. Although the 1993

Budget Act continues to bind the Corps, the 1993

Budget Act does not preclude the Corps from applying

the Alaska Supplement because language from the

Appendix A-24

1987 Manual itself allows the Corps to amend and

supplement the 1987 Manual and the Alaska

Supplement is consistent with that language.

The 1987 Manual identifies three factors that

should be

evaluated in making wetlands

determinations: vegetation, hydric soil, and hydrology

(the “Three Factors”). The 1987 Manual requires that,

for the hydrology element to be satisfied, the regulator

must “establish that a wetland area is periodically

inundated or has saturated soils during the growing

season.”

An appendix to the original 1987 Manual defined

“growing season” in terms of the days on which soil

temperatures were higher than 5 degrees Celsius at a

depth of 19.7 inches. But the 1987 Manual

acknowledged that hydrology was “often the least

exact” of the Three Factors and allowed regulators to

approximate the growing season based on “frost free

days” or establish hydrology through direct

observation of conditions on the ground, such as

inundation or soil saturation, sediment deposits,

drainage patterns, or certain characteristics of

vegetation.

In light of these inexact standards, the Corps

argues that the language of the 1987 Manual clearly

contemplates regional supplements like the Alaska

Supplement, which can alter some of the finer points

of wetlands identification based on regional factors.

Indeed, the 1987 Manual provides that the methods

for analyzing the Three Factors can be altered, as

Appendix A-25

“site-specific conditions may require modification of

field procedures.”2

The 1987 Manual explicitly acknowledges that

“certain wetland types, under the extremes of normal

circumstances, may not always meet all the wetland

criteria defined in the manual.” The 1987 Manual goes

on to state that “such wetland areas may warrant

additional research to refine methods for their

delineation.”

Relying on this language, the Corps has made

alterations to the method for identifying hydrology

and the “growing season” for nearly three decades,

including before the 1993 Budget Act was passed. In

1992, before the 1993 Budget Act was passed, the

Corps issued guidance stating that, although the soil

temperature factor noted in the appendix of the 1987

Manual was the “primary” definition of growing

season, “local means of determining growing season

may be more appropriate and can be used.” See U.S.

Army Corps of Engineers, “Clarification and

Interpretation of the 1987 Manual” (Mar. 6, 1992).

The Alaska Supplement—including its definition

of the “growing season,” which is at issue here—is

nothing more than formal guidance regarding the

“local means” that were permitted under the 1987

Manual and its subsequent guidance documents.

Given that the Corps was already allowed to use such

Tin Cup argues that these statements relate to certain known

“problem areas” and that permafrost was not one such “problem

area.” However, Tin Cup’s argument is undercut by subsequent

Corps guidance, which specifically stated that the list of “problem

areas” was nonexclusive and the 1987 Manual’s statements

regarding flexibility were meant to be broader than the list of

“problem areas.”

Appendix A-26

“local means” at the time Congress passed the 1993

Budget Act, the 1993 Budget Act cannot be read to

prohibit use of the Alaska Supplement.

Tin Cup does not meaningfully dispute that the

Corps has at least some ability to supplement or

amend the 1987 Manual. Instead, Tin Cup’s only

argument is that the Alaska Supplement is not a

“true” supplement because it disregards the soil

temperature factor in determining the growing

season. In Tin Cup’s view, because the Alaska

Supplement does not consider ground temperature in

determining the growing season, it contradicts the

1987 Manual and cannot be a “supplement” to that

Manual.

This argument is not persuasive for at least two

reasons. First, soil temperature was not even the

exclusive method of determining growing season and

hydrology under the original 1987 Manual. As

discussed above, the Manual allowed regulators to

“approximate” the growing season based on frost free

days or establish hydrology without reference to a

“growing season” through direct observation of

conditions on the ground, such as inundation or soil

saturation, sediment deposits, drainage patterns, or

certain characteristics of vegetation. As a result,

declining to use soil temperature as part of the

hydrology analysis would have been permissible

under the original 1987 Manual, given certain

circumstances.

Additionally, the 1987 Manual as it existed and

was used at the time of the 1993 Budget Act clearly

permitted regulators to disregard soil temperature in

favor of “local means” of determining a growing

season. See U.S. Army Corps of Engineers,

Appendix A-27

“Clarification and Interpretation of the 1987 Manual”

(Mar. 6, 1992). The Alaska Supplement represents the

Corps’ attempt to define just such “local means” for

making wetlands determinations in Alaska. Thus,

there is no basis to conclude that soil temperature

must always be considered when making a wetlands

determination and that any method that does not

consider soil temperature contradicts the 1987

Manual.3

Consequently, although Tin Cup is correct that

the Corps is required to use the 1987 Manual, I would

hold that the Alaska Supplement is a proper

supplement that is authorized by the 1987 Manual

itself. As a result, I would conclude that the district

court did not err when it rejected Tin Cup’s argument

that the Corps should be barred from using the Alaska

Supplement.

Tin Cup argues that there must be some limits on the Corps’

ability to amend the 1987 Manual or else the 1993 Budget Act

would be rendered meaningless. This may be true, but the 1987

Manual itself provides those outer bounds. For instance, the

Manual states that, although wetlands determinations are

flexible and subject to local considerations, “the basic approach”

of using the Three Factors of vegetation, hydric soils, and

hydrology “should not be altered.”

Thus, if the Corps attempted to adopt a regional supplement

that applied only two of the Three Factors, Tin Cup’s argument

would have more force. Similarly, if the Corps attempted to adopt

a regional supplement that replaced the Three Factors with

other factors, that action might exceed the Corps’ authority. But

in this case, the Corps’ Alaska Supplement retains the Three

Factor evaluation. The Alaska Supplement merely provides

different, region-specific methods for identifying the Three

Factors in Alaska’s unique environment.

Appendix B-1

Filed Sept. 26, 2017

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

TIN CUP, LLC, An Alaska

limited liability company,

Plaintiff,

UNITED STATES ARMY

CORPS OF ENGINEERS,

Case No. 4:16-cv00016-TMB

ORDER ON CROSS

MOTIONS FOR

SUMMARY

JUDGMENT

Defendant.

I. INTRODUCTION

This matter is before the Court on the parties’

cross motions for summary judgment at docket 15 and

docket 22, respectively. Defendant U.S. Army Corps of

Engineers (“Corps”) issued Plaintiff Tin Cup, LLC

(“Tin Cup”) a permit pursuant to Section 404 of the

Clean Water Act (“CWA”) allowing Tin Cup to

discharge fill material on 118 acres of wetlands in

order to construct a pipe fabrication facility in North

Pole, Alaska. Special conditions in the permit also

require that Tin Cup convert its gravel extraction site

into a reclamation pond and leave undisturbed

approximately forty-seven acres of wetlands on the

property. Believing these special conditions to be too

onerous, Tin Cup now challenges the Corps’

determination that permafrost on the property that

Tin Cup wishes to develop are wetlands requiring

federal authorization under the CWA before Tin Cup

Appendix B-2

can fill them.1 Tin Cup argues that the Corps

improperly relied on an Alaska-specific regional

supplement to the Corps’ 1987 Wetlands Delineation

Manual in violation of the Administrative Procedure

Act (“APA”). Tin Cup contends that this alleged

violation requires setting aside the Corps’ wetlands

determination with respect to Tin Cup’s development

permit. The Corps asserts that it properly relied on

the Alaska Supplement in delineating wetlands on

Tin Cup’s property. Neither party has requested oral

argument, nor would the Court’s decision be aided by

it. For the reasons that follow, Tin Cup’s Motion for

Summary Judgment at docket 15 is DENIED, and the

Corps’ Motion for Summary Judgment at docket 22 is

GRANTED.

II. BACKGROUND

Parties

Tin Cup is a subsidiary of Flowline Alaska

(“Flowline”), a Fairbanks-based company specializing

in heavy construction and fabrication of large pipe and

steel structures used in the North Slope oil fields.2

The U.S. Army Corps of Engineers, is one of two

federal agencies, along with the Environmental

Protection Agency (“EPA”), tasked with implementing

the CWA.3 The CWA makes it unlawful to discharge

dredged and fill material into the waters of the United

Dkt. 15 at 9; Dkt. 22 at 6.

Dkt. 15 at 19.

Dkt. 15 at 1–2; Dkt. 22 at 6.

Appendix B-3

States except in accordance with a permitting regime

jointly administered by the Corps and the EPA.4

Statutory and Regulatory Background

The CWA protects waters of the United States

from the discharge of pollutants, including dredged fill

material, into “navigable waters.”5 There has been

considerable litigation over what qualifies as

“navigable waters” or “waters of the United States”

subject to Corps and EPA regulation under the CWA.6

“The Corps has issued regulations defining the term

‘waters of the United States’ to include most wetlands

adjacent to waters of the United States that are not

themselves wetlands.”7 The parties have done a

thorough job discussing how the Corps’ authority to

regulate the discharge of pollutants onto wetlands has

evolved over the years through regulation and

litigation.8 Rather than repeat that recitation here,

the Court will instead focus on two documents

Fairbanks North Star Borough v. U.S. Army Corps of Eng’r,

543 F.3d 586, 589 (9th Cir. 2008) (citing United States v.

Riverside Bayview Homes, 474 U.S. 121, 123 (1985)); 33 U.S.C.

§§ 1311(a), 1344(a).

Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’r, 531 U.S. 159, 162 (2001); 33 U.S.C. § 1344(a).

See e.g. United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985) (upholding regulations defining “waters of the

United States” as encompassing wetlands adjacent to traditional

navigable waters); Rapanos v. United States, 547 U.S. 715 (2006)

(plurality opinion proposing different tests for what constitute

“waters of the United States”).

Fairbanks North Star Borough, 543 F.3d at 589 (internal

citations omitted).

See Dkt. 15 at 8–19; Dkt. 22 at 6–14.

Appendix B-4

promulgated by the Corps which guide wetlands

delineation determinations in Alaska.

1987 Wetlands Delineation Manual

Wetlands are defined in regulation as “those areas

that are inundated or saturated by surface or

groundwater at a frequency and duration sufficient to

support, and that under normal circumstances do

support, a prevalence of vegetation typically adapted

for life in saturated soil conditions.”9 In 1987, the

Corps promulgated a Wetlands Delineation Manual

(“1987 Manual”)10 with the purpose of providing

“users with guidelines and methods to determine

whether an area is a wetland for purposes of Section

404 of the CWA.”11 The 1987 Manual identifies three

guiding criteria in delineating wetlands: hydrology,

soil, and vegetation.12 However, the 1987 Manual also

observes:

Certain wetland types, under the

extremes of normal circumstances, may not

always meet all the wetland criteria defined

in the manual. Examples include prairie

potholes during drought years and seasonal

wetlands that may lack hydrophytic

vegetation during the dry season . . . .

However, such wetland areas may warrant

33 C.F.R. § 328.3(c)(4).

See Dkt. 15-1.

Dkt. 15 at 11; Dkt. 15-1 at 13; Dkt. 22 at 10–11.

Dkt. 15-1 at 18; Dkt. 15 at 11; Dkt. 22 at 11.

Appendix B-5

additional research to refine methods for

their delineation.13

1989 Wetlands Delineation Manual

and NRC Study

The Corps promulgated another Wetlands

Delineation Manual in 1989, however, the 1989

Manual was subject to substantial criticism and

legislative opposition,14 and ultimately the Corps

mandated the continued use of the 1987 Manual.

After rejecting the 1989 Manual, Congress tasked the

National Research Council (“NRC”) with studying the

scientific basis for the characterization of wetlands.15

The NRC issued a report in 1995 that “recommended

a number of changes to the Corps’ wetlands

delineation process.”16 In particular the NRC

observed:

[i]mprovements

the

scientific

understanding of wetlands since 1987 and

refinement of regulatory practice through

experience over almost a decade of intensive

wetland regulation suggest that a new

federal delineation manual should be

prepared for common use by all federal

agencies involved in the regulation of

wetlands. This new manual should draw

freely from the strengths of each of the

Dkt. 15-1 at 17.

Congress included riders to two Appropriations bills for fiscal

years 1992 and 1993 prohibiting the Corps from using the 1989

Manual. See infra Part IV.A.

Dkt. 16-1 at 15.

Dkt. 15 at 17.

Appendix B-6

existing manuals, but would not be identical

to any of the present manuals. The new

manual should incorporate some changes in

present practice and some solutions to past

problems of regulatory practice, as well as an

increased emphasis on regionalization

within a framework of national standards.17

Alaska Supplement to the 1987

Manual

Taking its cue from the NRC report, in 2006, the

Corps began to promulgate regional supplements

designed for use with the 1987 Manual.18 The regional

supplements were developed by working groups

comprised of wetlands experts from the federal, state,

and local level.19 Between 2007 and 2012, the Corps

issued ten supplements covering all regions of the

United States.20 The Corps promulgated an Alaskaspecific supplement21 to the 1987 Manual in

September 2007 as part of “nationwide effort to

address regional wetland characteristics and improve

the accuracy and efficiency of wetland-delineation

Dkt. 16-1 at 25.

Dkt. 22 at 11.

See, e.g. Dkt. 15-2 at 11–13.

Dkt. 22 at 11–12; see also Actual or anticipated release dates

for Regional Supplements (as of 13 Jan. 2012), available at

http://www.usace.army.mil/Portals/2/docs/civilworks/regulatory/

reg_supp/supp_sched2012.pdf (last visited Sep. 11, 2017).

See Dkt. 15-2. U.S. Army Corps of Engineers. 2007. Regional

Supplement to the Corps of Engineers Wetland Delineation

Manual: Alaska Region (Version 2.0), ed. J. S. Wakeley, R. W.

Lichvar, and C. V. Noble. (“Alaska Supplement”).

Appendix B-7

practices.”22 The Corps observed that “[r]egional

differences in climate, geology, soils, hydrology, plant

and animal communities, and other factors are

important to the identification and functioning of

wetlands. These differences cannot be considered

adequately in a single national manual.”23 The Alaska

Supplement was subject to public notice, comment,

review by the Corps’ National Advisory Team for

Wetland Delineation, as well as independent peer

review prior to finalization and publication.24

Most relevant to this lawsuit, the Alaska

Supplement takes a different approach to determining

the “growing season” as it pertains to wetland

hydrology as a delineation criteria identified in the

1987 Manual.25 Whereas the 1987 Manual calculates

growing season based on soil temperature or as

approximated by air temperature and frost free

days,26 the Alaska Supplement advises that

observation of vegetation activity is the preferred

approach for determining the growing season because

the 1987 Manual’s approach “is often impractical in

Alaska due to the scarcity of meteorological stations

Dkt. 15-2 at 14; see also AR Tab 2 at COE000011.

Dkt. 15-2 at 14.

Dkt. 15-2 at 12; Dkt. 16-2 at 2; Dkt. 16-3 at 2.

Dkt. 15-2 at 15.

See Dkt. 15-1 at 41. (“The 1987 Manual (see glossary,

Appendix A) defines ‘growing season’ as the portion of the year

when soil temperature (measured 20 inches below the surface) is

above biological zero (5° C or 41° F). This period ‘can be

approximated by the number of frost-free days.’ Estimated

starting and ending dates for the growing season are based on

28° F air temperature thresholds at a frequency of 5 years in

10.”); see also id. at 109.

Appendix B-8

and differences in elevation, aspect, and other

conditions between project sites and the locations of

existing weather stations.”27 Accordingly, the Corps

determined that “direct observation of vegetation

green-up, growth, and maintenance as an indicator of

biological activity occurring both above and below

ground,” is the preferred method to determine

growing season dates in Alaska.28

Procedural History

Tin Cup owns a 455-acre parcel of land in North

Pole, Alaska,29 which it holds for its parent company,

Flowline.30 The parcel is located approximately two

and a half miles south of the Chena River,31 near the

Tanana River,32 and directly abuts the Drainage

Channel B watershed.33 The parcel contains

approximately 352 acres of a larger 2,500 acre

wetland that extends off site to the south and east.34

Native vegetation on the subject wetlands include

Shrub-Scrub, Black Spruce Closed Forest, Alaska

Birch/Shrub Birch, Grasslike and Dwarf Shrub, and

Dkt. 15-2 at 60–61.

Id. at 61.

The subject property is located within Sections 26, 27, 34, and

35, T. 1 S., R. 1 E., Fairbanks Meridian. AR Tab 2 at COE000007.

Dkt. 15 at 19; Dkt. 22 at 14.

AR COE000265. The Corps determined that the subject

wetlands share a significant nexus with the Chena River. AR Tab

20 at COE000144.

See AR Tab 10 at COE 000084; AR Tab 70 at COE000570.

AR Tab 2 at COE00016.

AR Tab 30 at COE000265.

Appendix B-9

Alaska Birch/Calamagrostis.35 The Corps determined

that the wetlands on the property are adjacent to the

Channel B watershed and sustain a significant nexus

with the Chena River based on hydrological and

ecological connections.36

Flowline wishes to relocate from its current leased

Fairbanks facilities to the parcel owned by Tin Cup.

The proposed relocation project involves the

“placement of a gravel pad, as well as the construction

of several buildings and a railroad spur.”37 Because

the project requires both excavation and the use of

gravel fill material on wetlands, the Corps determined

that the project requires a Section 404 permit under

the CWA.38

In 2003, Tin Cup applied to the Corps for a Section

404 permit to discharge fill on the proposed relocation

site in support of the pipe fabrication and storage

facility. The Corps issued a permit in May 2004

allowing Tin Cup to place 1,000,000 cubic yards of fill

into approximately 165 acres of wetlands.39 Flowline

ultimately decided to delay the relocation project and

did not utilize the permit issued by the Corps to Tin

Cup prior to its expiration.40

AR Tab 67 at COE000529.

Id. at COE000527–60. “The significant nexus stems from the

hydrologic and ecological connections between the subject

wetlands and the Chena River.” Id. at COE000527.

Dkt. 15 at 19.

AR Tab 67 at COE000527; AR Tab 91 at COE000711.

AR Tab 92 at COE000717.

Id.

Appendix B-10

Tin Cup applied for a new permit in May 2008.

Although Tin Cup’s second application was similar to

its 2003 application, the Corps requested an updated

wetland delineation to “determine the extent of the

impacts associated with the new application.”41 In

September 2009, Tin Cup’s agent42 submitted a

preliminary wetland delineation for the Tin Cup

property.43 Although Tin Cup’s agent acknowledged

the “presence of wetland areas across the entire tract,”

Tin Cup opined that the wetlands did not meet the

requirements for adjacency and were therefore “not

subject to Clean Water jurisdiction.”44 The Corps and

Tin Cup exchanged additional letters, requests for

information, responses, and conducted field

investigations in an effort to determine whether the

wetlands on Tin Cup’s property had a significant

nexus to the adjacent wetlands and traditional

navigable waters.45 In November 2010, the Corps

issued a Jurisdictional Determination letter, which

concluded that Tin Cup’s property “contains waters of

the United States (U.S.), including wetlands, under

the Corps of Engineers’ regulatory jurisdiction.”46

Accordingly, the Corps informed Tin Cup that a 404

permit was required if Tin Cup wished to place

Id.

Tin Cup was represented by Travis/Peterson Environmental

Consulting, Inc. throughout the permitting process.

AR Tab 114 at COE000860–1031.

Id. at COE000883.

AR Tab 92 at COE000717–18.

AR Tab 91 at COE000711.

Appendix B-11

dredged or fill material into the wetlands on its

property.47

Tin Cup administratively appealed the Corps’

jurisdictional determination on seven grounds,48 one

of which was that the permafrost on the proposed

relocation site did not meet the 1987 Manual’s

definition of a “growing season,” and therefore could

not satisfy the hydrology requirement of wetlands

over which the Corps has jurisdiction.49 Although the

Corps’ review officer ultimately remanded the

jurisdictional determination to the Alaska District, he

rejected Tin Cup’s permafrost argument as meritless,

concluding that “[t]he Corps’ 2007 Alaska Regional

Supplement to the 1987 Manual recognizes local and

regionally developed methods to determine growing

seasons, which were appropriately applied in this case

in lieu of the 1987 Manual’s criteria.”50

On October 22, 2012, the Corps issued an Initial

Proffered Permit allowing Tin Cup to discharge

“1,000,000 cubic yards of gravel fill into 118 acres of

jurisdictional wetlands to create a gravel pad to

support facilities for pipe manufacturing, coating, and

storage.”51 The permit contained four special

conditions requiring Tin Cup to: (1) mark the

boundaries of the construction areas;52 (2) complete

clearing, excavation, and fill activities in a manner

Id.

AR Tab 89 at COE000653–709.

Id. at COE000659.

AR Tab 87 at COE000635.

AR Tab 30 at COE000249–50.

Id. at COE000251, 275.

Appendix B-12

mitigating impacts to breeding migratory birds;53

(3) convert the on-site gravel source into an 18-acre

reclamation pond54 and riparian fringe to compensate

for resource losses from the development project;55

and (4) create a 250-foot wide buffer area around the

reclamation pond and wetland fringe to prevent

further degradation to fish and wildlife habitat and

maintain the function and integrity of wetlands

adjacent to the permitted area.56 Special condition

four would have the effect of permanently protecting

forty-seven acres of the 455-acre parcel from future

development.57

Believing the special conditions in the proffered

permit to be too onerous, Tin Cup again objected to the

permit on multiple grounds, including that the Corps

impermissibly used the Alaska Supplement to assert

jurisdiction over permafrost on the parcel.58 In

November 2013, the Corps rejected Tin Cup’s

objections59 and issued a final permit to Tin Cup

Id.

The reclaimed pond would both accommodate excess runoff

from the gravel pad during spring snowmelt, Id. at COE000262–

63, as well as convert the project’s gravel source area into a

functioning pond and wetland area to be preserved in perpetuity.

Id. at COE000272.

Id. at COE000275–76.

Id. at COE000276.

Id. at COE000251, 264, 275–76.

Dkt. 15 at 21.

AR Tab 20 at COE000185–96.

Appendix B-13

containing the same four special conditions from the

initial proffered permit.60

In January 2014, Tin Cup submitted a Request for

Appeal (RFA) of the final permit, renewing numerous

objections to the Corps’ permitting decision.61 In

March 2015, the Corps’ Office of Administrative

Appeals rejected all five accepted reasons for appeal

raised by Tin Cup, including the argument that the

Corps impermissibly relied on the Alaska Supplement

in delineating wetlands.62 Following the denial of its

appeal, Tin Cup initiated the present lawsuit. Tin

Cup’s sole challenge is to the Corps’ use of the Alaska

Supplement in delineating wetlands.

III. LEGAL STANDARD

In the District of Alaska, appeals of agency

decisions under the APA are reviewed on crossmotions for summary judgment.63 “Procedurally,

summary judgment is appropriate for resolving a

challenge to a federal agency’s administrative decision

when review is based primarily upon the

administrative record.”64 When a court’s review is

based upon the administrative record, there are no

material facts in dispute and the court does not

Id. at COE000144–96.

AR Tab 13 at COE00099–101.

AR Tab 2 at COE 000004–05; AR Tab 3 at COE000026–28.

See D. Ak. L.R. 16.3.

Ctr. for Biological Diversity v. Salazar, 804 F. Supp. 2d 987,

996 (D. Ariz. 2011) (citing Ecology Ctr., Inc. v, Austin, 430 F.3d

1057, 1062 (9th Cir. 2005))

Appendix B-14

perform any fact finding.65 “Thus the court does not

use the standard summary judgment analysis for

determining whether a genuine issue of material fact

exists, and instead uses summary judgment as a

mechanism for deciding whether, as a matter of law,

the evidence in the administrative record permitted

the agency to make the decision it did.”66

The APA “sets forth the full extent of judicial

authority to review executive agency action for

procedural correctness.”67 Under the APA, a court

may only invalidate a final agency action where it is

“arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.”68

IV. DISCUSSION

This lawsuit requires the court to determine

whether the Corps properly relied on the Alaska

Supplement to the 1987 Wetlands Delineation

Manual in determining that the Tin Cup parcel

contains wetlands which require a 404 permit under

the CWA prior to Tin Cup’s discharge of fill material.

“Tin Cup contends that the Corps’ assertion of

jurisdiction over some 200 acres of permafrost on Tin

Cup’s property is not in accordance with law, and

therefore should be set aside under the

Occidental Eng’g Co. v. INS, 753 F.2d 766, 769–70 (9th Cir.

1985).

Salazar, 804 F. Supp. 2d at 996 (citing Occidental, 753 F.2d

at 769–70).

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1207 (2015)

(quoting F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513

(2009)).

5 U.S.C. § 706(2)(A).

Appendix B-15

Administrative Procedure Act, 5 U.S.C. § 706(2)(A).”69

Tin Cup claims that the Corps is bound by the

national wetland delineation standards contained in

the 1987 Manual and cannot rely on the standards

from the Alaska Supplement.70 Specifically, Tin Cup

argues that: (1) language from enacted 1992 and 1993

Energy and Water Appropriations legislation requires

the Corps to use the 1987 Manual;71 (2) that the Corps

impermissibly used the Alaska Supplement’s

“growing season” standard in asserting jurisdiction

over wetlands on Tin Cup’s property;72 and (3) that the

Alaska Supplement’s standard for determining the

growing season cannot be reconciled with the 1987

Manual.73

In its cross-motion for summary judgment, the

Corps asserts that: (1) the language from 1992 and

1993 appropriations bills is no longer operative;74 (2)

that even if the language from these bills were

operative, it does not bar the Corps from issuing

regional supplements;75 and (3) even if the Corps

improperly relied on the Alaska Supplement in

determining that certain areas of Tin Cup’s property

are wetlands, that the Court should nonetheless

uphold the decision because the Corps’ permit

Dkt. 15 at 8.

Dkt. 23 at 14.

Dkt. 15 at 23–26.

Id. at 26–27.

Id. at 27–29.

Dkt. 22 at 19–24.

Id. at 24–28.

Appendix B-16

determination was sound.76 The Court first addresses

the relevant provisions contained in the Energy and

Water Appropriations Acts from 1992 and 1993.

The 1992 and 1993 Energy and Water

Appropriations riders do not preclude

the Corps from using the Alaska

Supplement to delineate wetlands.

Tin Cup asserts that Congress limited the Corps’

discretion in how the agency delineates wetlands via

language included in 1992 and 1993 appropriations

legislation.77 The Corps contends that the decades-old

appropriations bills do not prohibit the Corps from

relying on regional supplements to the 1987 Manual

because neither rider contains the requisite “words of

futurity” expressing congressional intent for the text

to apply permanently.78

The parties’ differing interpretations of the riders

included in the 1992 and 1993 appropriations

legislation presents an issue of statutory construction.

In cases involving statutory construction, courts start

with the statutory text and proceed from the

understanding that unless otherwise defined,

statutory terms are generally interpreted in

accordance with their ordinary meaning.79 Under the

well-established two-step test from Chevron:

When a court reviews an agency’s

construction of the statute which it

Id. at 28–30.

Dkt. 15 at 12–17.

Dkt. 22 at 19–24.

See Sebelius v. Cloer, 569 U.S. 369, 376 (2013) (citations

omitted).

Appendix B-17

administers, it is confronted with two

questions. First, always, is the question

whether Congress has directly spoken to the

precise question at issue. If the intent of

Congress is clear, that is the end of the

matter; for the court, as well as the agency,

must give effect to the unambiguously

expressed intent of Congress. If, however,

the court determines Congress has not

directly addressed the precise question at

issue, the court does not simply impose its

own construction on the statute, as would be

necessary

the

absence

administrative interpretation. Rather, if the

statute is silent or ambiguous with respect to

the specific issue, the question for the court

is whether the agency's answer is based on a

permissible construction of the statute.80

With these standards in mind, the Court

evaluates the relevant provision from the 1992 Energy

and Water Development Appropriations Act,81 which

provides:

None of the funds in this Act shall be used to

identify or delineate any land as a “water of

the United States” under the Federal

Manual for Identifying and Delineating

Jurisdictional Wetlands that was adopted in

January 1989 (1989 Manual) or any

subsequent manual not adopted in

accordance with the requirements for notice

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 842–43 (1984).

Pub. L. 102–104, Aug. 17, 1991, 105 Stat 510.

Appendix B-18

and public comment of the rule-making

process of the Administrative Procedure

Act.82

Similarly, the relevant provision from the 1993

Energy and Water Development Appropriations Act83

provides:

None of the funds in this Act shall be used to

identify or delineate any land as a “water of

the United States” under the Federal

Manual for Identifying and Delineating

Jurisdictional Wetlands that was adopted in

January 1989 or any subsequent manual

adopted without notice and public comment.

Furthermore, the Corps of Engineers will

continue to use the Corps of Engineers 1987

Manual, as it has since August 17, 1991,

until a final wetlands delineation manual is

adopted.84

The restrictive language

prohibiting the Corps from using

the 1989 Manual applies to funding

from the respective appropriations

legislation only.

The Court concludes that the operative language

from both the 1992 and 1993 Energy and Water

Appropriations bills which prohibit the Corps from

delineating wetlands under the 1989 Manual applies

only to “the funds in this Act.” The statutory language

Id.

Pub. L. 102–377, Oct. 2, 1992, 106 Stat. 1315.

Id.

Appendix B-19

clearly limits the applicability of the riders to the

funds appropriated in the 1992 and 1993

appropriations bills respectively.85

The ambiguous provision from 1993

Energy and Water Appropriations

Act does not contain words of

futurity or a clear statement of

congressional intent required to

find permanence.

Tin Cup, however, points to the addition of a

sentence in the 1993 Energy and Water

Appropriations Act which provides: “Furthermore, the

Corps of Engineers will continue to use the Corps of

Engineers 1987 Manual, as it has since August 17,

1991, until a final wetlands delineation manual is

adopted,” to argue that Congress intended to make the

Corps’ use of the 1987 Manual permanent.86 Tin Cup

asserts that this language is independent of any

specific

appropriation

made

the

1993

Appropriations Act.

Indeed, had Congress intended to make the limitation

permanent, it would have been unnecessary to include the nearly

identical limiting language in consecutive appropriations bills.

See Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 227 (1st Cir.

2003) (“After all, if Congress annually reenacts a provision,

common sense suggests—and courts are free to presume—that

Congress did not consider the language as creating permanent

law.”) (citing United States v. Vulte, 233 U.S. 509, 514 (1914));

see also GAO Principles of Federal Appropriations Law (4th ed.

2016 rev.) at 2–89 (“Thus, the repeated inclusion of a provision

in annual appropriation acts indicates that it is not considered or

intended by Congress to be permanent.”).

Dkt. 15 at 17 (emphasis added).

Dkt. 23 at 10.

Appendix B-20

The Corps takes the position that the additional

sentence in 1993 bill does not overcome the strong

presumption that language in appropriations

legislation only applies for one fiscal year.88

Additionally, the Corps contends that this provision

must be read in the context of the sentence preceding

it, and that the language does not evince Congress’

clear intent to require the Corps use of the 1987

Manual indefinitely.89 Tin Cup responds that the fact

the language appears as a separate paragraph

suggests that it is not constrained by the preceding

paragraph’s limitation to funds appropriated in the

1993 Act.90 Additionally, Tin Cup asserts that because

the additional sentence is a general provision and not

appropriations-specific, it can be construed as having

permanent application even in the absence of clear

words of futurity.91

The Court concludes that it is not clear from the

plain text of the 1993 Energy and Water

Appropriations rider whether Congress intended this

provision mandating the use of the 1987 Manual to

apply beyond the 1993 Appropriations Act. Generally

speaking, Congress is not presumed in annual

appropriations bills to enact language having

permanent application to future appropriations

unless Congress expressly indicates its intention to

make such provisions permanent.92 The Court of

Dkt. 22 at 23.

Id. at 22–23.

Dkt. 23 at 7.

Id. at 8.

92 Minis v. United States, 40 U.S. 423, 445 (1841) (“It would be

somewhat unusual, to find engrafted upon an act making special

Appendix B-21

Appeals for the Ninth Circuit has recognized

“appropriations acts are generally only in force during

the fiscal year of the appropriation and do not work a

permanent change in the substantive law.”93 Courts

in other circuits have reached the same conclusion

when addressing the permanence of riders attached to

appropriations legislation.94

To rebut the strong presumption that

appropriations riders do not create a permanent

change in substantive law typically requires that

Congress include “words of futurity.”95 “The most

common word of futurity is ‘hereafter’ and provisions

using this term have often been construed as

permanent.”96 “If words of futurity indicate

permanence, it follows that a proviso or general

and temporary appropriations, any provision which was to have

a general and permanent application to all future

appropriations. Nor ought such an intention on the part of the

legislature to be presumed, unless it is expressed in the most

clear and positive terms, and where the language admits of no

other reasonable interpretation.”).

93 Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797, 806

n.19 (9th Cir. 2005) (quoting Seattle Audubon Soc’y v. Evans, 952

F.2d 297, 304 (9th Cir. 1991)).

See e.g., Bldg. & Constr. Trades Dep’t, AFL-CIO v. Martin, 961

F.2d 269, 273 (D.C. Cir. 1992) (“While appropriation acts are

‘Acts of Congress’ which can substantively change existing law,

there is a very strong presumption that they do not, and when

they do, the change is only intended for one fiscal year.”) (internal

citations omitted).

See Nat. Res. Def. Council, 421 F.3d at 806 n.19 (citing Atl.

Fish Spotters Ass’n, 321 F.3d at 224–25 (1st Cir. 2003)); Martin,

961 F.2d at 273–74.

GAO Principles of Federal Appropriations Law (4th ed. 2016

rev.) at 2-86.

Appendix B-22

provision that does not contain words of futurity will

generally not be construed as permanent.”97

Although the additional sentence included in the

1993 Energy and Water Appropriations Act presents

a closer question than the provisions prohibiting the

expenditure of funds through the use of the 1989

Manual, the Court is unpersuaded that the additional

text constitutes words of futurity sufficient to

establish congressional intent to make the language

permanent.98 Because Congress has not clearly

expressed its intention that this provision be

permanent, the Court concludes that the Corps’

interpretation99 that this language is no longer

operative is not unreasonable.100

Id. at 2-89.

Atl. Fish Spotters Ass’n, 321 F.3d at 224 (“Congress cannot

rebut the presumption against permanence by sounding an

uncertain trumpet.”).

Tin Cup contends the Corps interpretation of the 1993

Energy and Water Appropriations Act is entitled to no deference

because “[i]t is implausible that Congress intended the Corps to

‘administer’ the 1993 Budget Act.” Dkt. 15 at 25. It is plausible,

however, that Congress intended the Corps to administer

statutory language directly related to its regulation of wetlands.

If Tin Cup’s proposition were taken to its logical conclusion, than

no federal agency would be entitled to any deference in

interpreting legislative riders contained in Appropriations

legislation. Tin Cup’s argument that the Corps’ interpretation is

entitled to no deference is without merit.

See Atl. Fish Spotters Ass’n, 321 F.3d at 224 (“Thus, the

presumption against permanence in appropriation bills can be

overcome if Congress clearly expresses its intention to create

permanent law or if the nature of the provision would make any

other interpretation unreasonable.”).

100

Appendix B-23

This conclusion is bolstered by the guidance

provided by the GAO Principles of Federal

Appropriations Law:

The degree of relationship between a given

provision and the object of the appropriation

act in which it appears or the appropriated

language to which it is appended is a factor

to be considered. If the provision bears no

direct relationship to the appropriation act in

which it appears, this is an indication of

permanence . . . . The closer the relationship,

the less likely it is the provision will be

viewed as permanent.101

Here, the relationship of the provision to both the

1993 Energy and Water Appropriations Act, and to

the preceding language regarding the Corps’ use of

wetlands delineations manuals is undeniably close.

Issues of Corps funding are in the regular jurisdiction

of Energy and Water appropriations process,102 and

the presence of this sentence immediately after

language restricting the use of funds for

implementation of the 1989 Manual highlights the

101

GAO Principles at 2-90.

Army Corps Civil Works funding is within the regular

jurisdiction of Energy and Water Appropriations legislation. See

U.S. House of Representatives Committee on Appropriations,

Energy and Water Subcommittee Jurisdiction available at

https://appropriations.house.gov/about/jurisdiction/energywater.

htm (listing Army Corps of Engineers – Civil); U.S. Senate

Committee on Appropriations, Energy and Water Development

Subcommittee Jurisdiction available at https://www.appropria

tions.senate.gov/subcommittees/energy-and-water-development

(listing Corps of Engineers–Civil).

102

Appendix B-24

direct relationship, which makes it less likely the

provision will be viewed as permanent.103

Congress knows what language to

use to make provisions included in

appropriations legislation

permanent.

“[W]hen Congress wants to make explicit that a

certain provision is to apply beyond the fiscal year to

which the appropriation act applies, it knows how to

do so.”104 As the Corps points out, in the very same

1993 Energy and Water Appropriations Act, Congress

included language barring the Bureau of Reclamation

from using funds for specific reclamations projects. In

doing so, Congress used the word “hereafter” and

explicitly indicated its intent to make the prohibition

permanent by stating that it applied to “subsequent

Energy and Water Development Appropriations

Acts.”105 In contrast, there is no such clear statement

manifesting congressional intent that the Corps’ use

of the 1987 Manual extend permanently or

indefinitely beyond fiscal year 1993. Accordingly, the

Court rejects Tin Cup’s argument that the provisions

in the 1992 and 1993 Energy and Water Development

Appropriations Acts prohibit the Corps from adopting

the Alaska Supplement used in its wetlands

delineation with respect to Tin Cup’s application.

103

GAO Principles at 2-90.

Auburn Housing Authority v. Martinez, 277 F.3d 138, 146 (2d

Cir. 2002).

104

105

106 Stat. at 1330.

Appendix B-25

On the whole, the Alaska Supplement

is not contradictory to the 1987

Manual.

Tin Cup argues that the regional supplements are

“not even true supplements, for in many instances

they contradict the 1987 Manual which they purport

to supplement.”106 But this argument is unpersuasive.

The 1987 Manual itself observes that certain wetland

types will not always meet all of the wetland criteria

defined in the 1987 Manual, and that “such wetland

areas may warrant additional research to refine

methods for their delineation.”107 Thus, the very

language of the 1987 Manual lays the foundation for

the regional supplements and their refinement of

wetland delineation methods in non-traditional

environments. Taking its cue from the 1987 Manual’s

language and the 1995 NRC study, the Alaska

Supplement’s stated intent is to “bring the [1987]

Manual up to date with current knowledge and

practice in the region and not to change the way

wetlands are defined and identified. The procedures

given in the [1987] Manual, in combination with

wetland indicators and guidance provided in this

supplement, can be used to identify wetlands for a

number of purposes . . . .”108 Even though there are

five discrete areas in which the Alaska Supplement

takes precedent over the 1987 Manual,109 the Alaska

Supplement makes clear that it is designed to be used

in conjunction with the 1987 Manual. The Court

106

Dkt. 15 at 24.

107

Dkt. 15-1 at 17.

108

Dkt. 15-2 at 14.

109

See id. at 15.

Appendix B-26

concludes that what Tin Cup characterizes as

contradictions between the 1987 Manual and the

Alaska Supplement do not frustrate the framework of

the 1987 Manual, but instead refine the 1987 Manual

to reflect the benefit of nearly two decades

advancement in wetlands research and science.

Also without merit is Tin Cup’s argument that the

Corps’ position in this lawsuit inconsistent with the

agency’s prior position with respect to the 1987

Manual.110 Tin Cup accuses the Corps of engaging in

an opportunistic, litigation-driven switch as regards

to the applicability of the 1987 Manual.111 The Court

disagrees with Tin Cup’s characterization of the

Corps’ position. Tin Cup quotes a 2008 decision from

the Ninth Circuit, in which the Court states “[t]o

identify wetlands under this regulation, the Corps

uses its 1987 Wetlands Delineation Manual.”112

Although the Ninth Circuit issued its opinion in

Fairbanks North Star Borough in 2008, as Tin Cup

should be well aware,113 the Plaintiff in that case filed

suit in August 2006, over a year before the Corps had

promulgated

the

final

Alaska

Supplement.

Accordingly, the Corps could not have used a regional

supplement that did not yet exist to delineate

wetlands in that case, and the Court declines to

construe the quoted language from Fairbanks North

Star Borough regarding the Corps use of the 1987

110

Dkt. 23 at 9.

111

Id.

112

See Fairbanks North Star Borough, 543 F.3d at 590.

The same attorneys that represented the Fairbanks North

Star Borough represent Tin Cup in the present lawsuit.

113

Appendix B-27

Manual to represent a changed position for litigation

in this case.

Tin Cup’s argument implies the

invalidity of all regional supplements

to the 1987 manual.

In arguing that the Corps’ reliance on the Alaska

Supplement is contrary to the appropriations bills

passed by Congress in 1992 and 1993, Tin Cup’s

argument necessarily implies that the nine other

regional supplements promulgated by the Corps are

also invalid. The Corps began promulgating regional

supplements to the 1987 Manual in 2006. These

regional supplements have been utilized to guide

wetlands delineations all over the country. Yet, after

over a decade of use, in what the court can only guess

is hundreds, if not thousands, of wetlands

delineations, Tin Cup can point to no case where any

of the ten regional supplements has been found to be

invalid based on the provisions from the 1992 or 1993

Energy and Water Appropriations Acts by another

court. This Court similarly declines Tin Cup’s

invitation to invalidate the Alaska Supplement on

these grounds.

V. CONCLUSION

Based on the Administrative Record before the

Court, the Court concludes that the Corps’ use of the

Alaska Supplement in conjunction with the the 1987

Manual to delineate wetlands on the Tin Cup parcel

was not arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with the law.

Accordingly, Tin Cup’s Motion for Summary

Judgment at docket 15 is DENIED and the Army

Corps Motion for Summary Judgment at docket 22 is

Appendix B-28

GRANTED. Additionally, Plaintiff’s Motion for

Judicial Notice at docket 18 is GRANTED.

IT IS SO ORDERED.

Dated at Anchorage, Alaska, this 26th day of

September, 2017.

/s/ Timothy M. Burgess

TIMOTHY M. BURGESS

UNITED STATES DISTRICT JUDGE

Appendix C-1

ADMINISTRATIVE APPEAL DECISION

CLEAN WATER ACT

TIN CUP, LLC – FILE No. POA-2003-1422

PROFFERED PERMIT

ALASKA DISTRICT

Review Officer: Elliott N. Carman, U.S. Army Corps

of Engineers (Corps), Southwestern Division

Appellant/Applicant: Tin Cup, LLC

Regulatory Authority: Section 404, Clean Water

Act (Section 404)

Date Request for Appeal Received: 10 January

2014

Proffered Permit Appeal Conference: 15 July

2014

1. ACCEPTED REASONS FOR APPEAL. The

U.S. Army Corps of Engineers. Pacific Ocean Division

(Division) accepted the following reasons for appeal

(RFA) submitted by Tin Cup, LLC (Appellant) on 10

January 2014.

1.1 The District incorrectly applied current

regulatory criteria and associated guidance for

identifying and delineating wetlands when it did not

solely rely on the 1987 Corps of Engineers Wetland

Delineation Manual, the only congressionally

authorized document for identifying wetlands in the

field.

1.2 The subject wetlands are independent of,

and separated from wetlands found in Channel B

Therefore, the District omitted material fact when it

determined that the subject wetlands were continuous

with those found in Channel B.

Appendix C-2

1.3 Flow measurements within Channel B,

regional topography, and the presence of permafrost

demonstrate there is no surface or subsurface

connection between the subject wetlands and Channel

B. Therefore, the District incorrectly applied law,

regulation, or officially promulgated policy when it

determined that the subject wetlands were connected

(adjacent) to Channel B.

1.4 “The contribution from the entire Channel B

watershed is less than one percent of total flow in the

[Chena River] and is insignificant.” Therefore, the

District incorrectly applied law, regulation, or

officially promulgated policy when it determined that

Channel B, in combination with similarly situated

wetlands (including the subject wetland), had a

significant nexus with the Chena River, the nearest

downstream traditionally navigable water.

1.5 The District lacked, “...sufficient guidance,

policy, and regulation to conduct and publish

significant nexus findings.” Therefore, the District

was arbitrary and capricious when it concluded

Channel B and its adjacent wetlands (including the

subject wetlands) had a significant nexus with the

Chena River.

2. SUMMARY OF APPEAL DECISION. Tin Cup,

LLC (Appellant) is appealing jurisdiction issues

related to a U.S. Army Corps of Engineers, Alaska

District (District) proffered permit for the Appellant's

property near North Pole, Alaska. The Appellant

submitted five main reasons for appeal in which they

contend that the District incorrectly applied current

regulatory criteria and associated guidance for

identifying and delineating wetlands; incorrectly

applied law, regulation, or officially promulgated

Appendix C-3

policy; omitted material fact; and was arbitrary and

capricious when it concluded the wetlands on the

Appellant’s property were waters of the United States

(U.S.). For reasons detailed in this document. these

reasons for appeal do not have merit.

3. BACKGROUND

INFORMATION.

The

Appellant’s property is located between the Old

Richardson

Highway

and

Bradway

Road

approximately 1.5 miles east of the intersection of

Dennis Road and the Old Richardson Highway near

North Pole, Alaska. More specifically, the Appellant’s

property is located within Sections 26, 27, 34 and 35,

T. 1 S.R., 1 E., Fairbanks Meridian, USGS Quad Maps

Fairbanks (D-1) SW and Fairbanks (D-2) SE; Latitude

64.7958° N., Longitude 147 4966° W.

The timeline for history of events is as follows A

detailed description of the events is provided below.

• 8 November 2010: District issued AJD.

• 29 December 2010: Appellant appealed AJD.

• 18 August 2011: Division Commander found

AJD appeal to have partial merit and AJD remanded

to District.

• 13 April 2012: District finalized AJD appeal

remand response.

• 22 October

proffered permit.

2012:

District

issued

initial

• 13 December 2012: Appellant objected to initial

proffered permit.

• 14 November 2013: District proffered permit.

• 7 January 2014: Appellant appealed proffered

permit.

Appendix C-4

• 16 January 2014: Division Commander

accepted Proffered permit request for appeal.

The District issued an approved jurisdictional

determination (AJD) dated 8 November 2010, which

concluded that the Appellant’s property contained,

“...waters of the [U.S.], including wetlands, under the

[U.S. Army] Corps of Engineers’ regulatory

jurisdiction.” The letter further stated that the subject

wetland was, “...adjacent to the Tanana River, a

traditional navigable water [TNW], due to its

reasonably close proximity and separation from the

water only by berms.”1 The Appellant appealed the

AJD via letter dated 29 December 2010.2 The appeal

was found to have partial merit and the AJD was

remanded to the District on 18 August 2011 for

further

evaluation,

documentation,

and

reconsideration. The District responded to the

remand via letter to the Appellant dated 13 April

2012, in which the District reaffirmed that the subject

wetland was a water of the U.S. However, the

reconsidered AJD now indicated the subject wetland,

“...extends off site and is adjacent to Channel B, a

relatively permanent water [RPW],” and has “...a

2011 Administrative Record (AR) page 62. For clarity, the

District provided tile AR to the Appellant and the Review Officer

in two parts. The first part, the portion of the AR associated with

the 2010 appeal of the AJD associated with this proffered permit,

is referred to as the 2011 AR. The second part, associated with

the current appeal of the proffered permit, is referred to as the

2014 AR.

2 2011 AR pages 4-60.

3 2014 AR pages 499-512.

Appendix C-5

significant nexus with the Chena River, a water more

readily understood as ‘navigable.’”4

Upon completion of their permit evaluation. tt1e

District provided an initial proffered permit to the

Appellant via letter dated 22 October 2012

authorizing the permanent fill of 142 acres of

wetlands and temporary fill of 1 acre of wetlands

associated with the construction of a pipe storage and

fabrication facility for the purpose of industrial

development.5 The Appellant responded via letter

dated 13 December 2012, objecting to all the special

conditions of the initial proffered permit due to the

Appellant’s assertion that the Corps lacked

jurisdiction over the subject wetland.6 In response, the

District reconsidered their decision, and then

proffered the permit (without changing any of the

special

conditions)

the

Appellant

for

reconsideration via letter dated 14 November 2013.

The proffered permit included a revised AJD that

indicated the subject wetland was now determined to,

“...directly abut Channel B, a RPW,” and was,

“...jurisdictional based on both its significant nexus

with the Chena River...and its directly abutting a

[RPW].”7

The Appellant declined the proffered permit and

submitted a Request for Appeal (RFA) to the Division,

dated 7 January 2014. The RFA was received by the

Division on 10 January 2014. The Appellant was

4 2014 AR pages 290-348.

5 2014 AR pages 115-146.

6 2014 AR pages 97-114.

7 2014 AR pages 10-50.

Appendix C-6

informed, by letter dated 16 January 2014, that the

RFA was accepted.

4. INFORMATION RECEIVED DURING THE

APPEAL AND ITS DISPOSITION. 33 Code of

Federal Regulations (CFR) § 331.3(a)(2) states that,

upon appeal of the District Engineer’s decision, the

Division Engineer or his Review Officer (RO) conducts

an independent review of the District’s administrative

record (AR) to address the reasons for appeal cited by

the Appellant. The District’s AR is limited to

information contained in the record as of the date of

the Notification of Administrative Appeal Options and

Process (NAO/NAP) form. Pursuant to 33 CFR

§ 331.2, no new information may be submitted on

appeal. Neither the Appellant nor the District may

present new information to the Division. To assist the

Division Engineer in making a decision on the appeal,

the RO may allow the parties to interpret, clarify, or

explain issues and information already contained in

the District’s AR. Such interpretation, clarification, or

explanation does not become part of the District’s AR,

because the District Engineer did not consider it in

making the decision on the permit. However, in

accordance with 33 CFR § 331.7(f), the Division

Engineer may use such interpretation, clarification, or

explanation in determining whether the District’s AR

provides an adequate and reasonable basis to support

the District Engineer’s decision. The information

received during this appeal process and its disposition

is as follows:

4.1 The District provided a copy of their AR to

the RO and the Appellant. The AR is limited to

information contained in the record by the date of the

NAO/NAP form. That date for the AJD is 8 November

Appendix C-7

2010 which includes 2011 AR pages 62-653.8 For the

proffered permit associated with this appeal, that date

is 14 November 2013 which includes 2014 AR pages 9515.

4.2 An appeal conference was held on 15 July

2014. The conference followed the agenda provided to

the District and the Appellant by the RO via e-mail on

8 July 2014. During the appeal conference, the

District clarified the location of a document in their

AR, identified a typographical error in a document in

their AR, and stated that they inadvertently omitted

several items from the copies of the AR provided to the

RO and the Appellant. These items were as follows:

4.2.1 The

District

clarified

that

the

memorandum for record (MFR) referenced on 2011 AR

page 83 is that found on 2011 AR pages 67-81 and that

the reference to field work on 7 July 2010 in the letter

on 2011 AR page 62 was a typographical error as the

correct date was 2 July 2010. These documents were

considered as part of the evaluation of this RFA as

they were present in the District’s AR prior to the

District’s decision.

4.2.2 The District indicated they inadvertently

omitted from the copies of the AR provided to the RO

and the Appellant the spreadsheet attached to the

email found on 2014 AR page 260, the “enclosed

sheets” referenced in the public notice found on 2014

8 The 2011 portion of the District’s AR provided to the RO and

the Appellant originally contained 382 pages. However during

the course of the appeal process it was discovered that the

District inadvertently omitted 271 pages of the 2011 AR. These

pages, which comprise 2011 AR pages 383-653, were later

provided to the RO and the Appellant. This is discussed further

in Section 4.3 of this decision document below.

Appendix C-8

AR page 234, and a copy of the U.S. Environmental

Protection Agency’s (EPA) request to extend the

public notice referenced in the email found on 2014 AR

page 216. The District provided these documents to

the RO and the Appellant via e-mail dated 21 July

2014.9 These documents were considered as part of the

evaluation of this RFA as they were present in the

District’s AR prior to the District’s decision, but

inadvertently omitted from the copies of the District’s

AR provided to the RO and the Appellant due to an

error.

4.3 During the appeal conference, the Appellant

asserted that the copy of the AR the District provided

for this appeal was incomplete as it only included

information since 2009 and not since 2003 when the

original action associated with this Department of the

Army permit number (POA-2003-1422) began. The

District responded that the first permit associated

with this project number expired thereby ending that

action, and that the AR provided for this appeal was a

copy of the record prepared in response to a newer

action that began in 2009 for the same property as

that of the expired permit. After the appeal

conference, it was discovered that the action being

appealed did not begin in 2009, but in 2008 with the

Appellant’s permit request (as the previous permit

had expired). So while the District’s response was

conceptually correct, it was determined that the

9 In a follow up email dated 22 July 2014, the District noted that

the “enclosed sheets” associated with the public notice found on

2014 AR page 234 did not have the same date (two of the sheets

were dated 23 May 2012, while two others were dated 22 May

2008). The District clarified that the two pages dated 2008 were

included in the 2012 public notice as they were unchanged since

their submittal in 2008.

Appendix C-9

District inadvertently omitted approximately 271

pages between 2008 and 2009 from their AR. These

pages were provided to the RO and the Appellant on

16 January 2015 and were numbered as 2011 AR

pages 383-653. These pages were considered as part of

the evaluation of this RFA as they were present in the

District’s AR prior to the District’s decision, but

inadvertently omitted from the copies of the District’s

AR provided to the RO and the Appellant due to an

error.

4.4 On 3 October 2014, the RO forwarded a

draft MFR summarizing the appeal conference topics

to the Appellant and the District for review and

comment. In an e-mail dated 8 October 2014, the

Appellant provided comments regarding sections 1

and 4.b of the draft MFR. In an e-mail dated 10

October 2014, the District indicated they did not have

any comments on the draft MFR. The Appellant’s

comments were incorporated into a final MFR. which

was provided to the Appellant and the District by the

RO on 22 October 2014.

5. Evaluation of the Appellant’s Reasons for

Appeal.

5.1 Appeal Reason 1: The District incorrectly

applied current regulatory criteria and associated

guidance for identifying and delineating wetlands

when it did not solely rely on the 1987 Corps of

Engineers Wetland Delineation Manual, the only

congressionally authorized document for identifying

wetlands in the field.

5.1.1 Finding: This reason for appeal does not

have merit.

Appendix C-10

5.1.2 Discussion: In their RFA, the Appellant

asserted that the District’s use of the definition of the

growing season in the Regional Supplement to the

Corps of Engineers Wetland Delineation Manual:

Alaska Region10 (Regional Supplement) was in error

because the Appellant believed the 1987 Corps of

Engineers Wetlands Delineation Manual11 (1987

Manual) was, “...the only congressionally authorized

document the Alaska District [was] permitted to use

to identify wetlands in the field.” Therefore, the

Appellant believes, as stated in their RFA, that the

District, “...exceeded its authority under Section 404

by adopting and using wetland delineation procedures

[associated with the Regional Supplement] that

supersede those of the congressionally authorized

1987 Manual,”12 and that, “...all delineations

performed using the Alaska Supplement are

invalid.”13

This reason for appeal, as noted by the Appellant

during the appeal conference, was partially raised in

the 2010 appeal of the AJD associated with this

declined proffered permit (the subject of this appeal).14

10 U.S. Army Corps of Engineers 2007 Regional Supplement to

the Corps of Engineers Wetland Delineation Manual Alaska

Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V.

Noble, ERDC/EL TR-07-24 Vicksburg, MS, U.S. Army Engineer

Research and Development Center.

Environmental Laboratory (1987), “Corps of Engineers

Wetlands Delineation Manual” Technical Report Y-87-1, U.S.

Army Engineer Waterways Experiment Station, Vicksburg, MS.

12 Appellant’s 7 January 2014 RFA, pages 13-14.

13 Appellant’s 7 January 2014 RFA, page 16.

14 2011 AR page 10.

Appendix C-11

In their 2010 RFA, the Appellant stated in their

fourth reason for appeal that the District should be

forced to follow the growing season definition in the

1987 Manual (and not in the Regional Supplement)

and that it was, “...pure speculation by the Corps that

the ground temperature rises above 5°C at 20 inches

below the ground surface in a permafrost area for a

significant portion of the growing season.”15

Regarding this reason for appeal, the 2010 appeal

decision document stated that the Regional

Supplement, which was applicable to the region.

recognized the need to rely, “...upon locally or

regionally developed methods to determine the

growing season dates...,” rather than using the soil

temperature criteria in the 1987 Manual.16

Consequently, the decision document stated that the

soil temperature near 20 inches below the ground

surface was irrelevant to determining growing season

in Alaska and concluded that this reason for appeal

did not have merit.

The Appellant’s assertion that the District erred

when it used the Regional Supplement instead of the

1987 Manual exclusively, is unique to the current

appeal. The issue presented by the Appellant’s RFA is

the District’s adoption, for all the District’s

delineations and not just the action being appealed, of

the portions of the Regional Supplement that

supersede the 1987 Manual.17 This assertion is

addressed in the following discussion.

15 2011 AR page 10.

16 2014 AR page 509.

17 Appellant’s 7 January 2014 RFA, page 16.

Appendix C-12

The Corps began requiring that districts use the

1987 Manual to identify and delineate wetlands

potentially subject to regulation under Section 404 on

27 August 1991.18 In September 2007, the Corps

finalized the Regional Supplement as part of a

“...nationwide effort to address regional wetland

characteristics and improve the accuracy and

efficiency of wetland-delineation practices.”19 The

Regional Supplement was designed to be used with

the 1987 Manual (or a subsequent version), but takes

precedence over the 1987 Manual where differences

occur20 such as with the definition of the growing

season in this case.

The Appellant’s assertion that the District erred

when it used the Regional Supplement instead of the

1987 Manual exclusively for all the District’s

delineations is invalid because an appeal must be

associated with a specific Corps action and reasons for

appeal are limited to, for example, a district’s

application of regulation, guidance, or policy specific

to that action. Because the Regional Supplement was

a valid nationally promulgated supplement to the

“Implementation of the 1987 Corps Wetland Delineation

Manual,” memorandum from John P. Elmore dated 27 August

1991.

19 U.S. Army Corps of Engineers, 2007, Regional Supplement to

the Corps of Engineers Wetland Delineation Manual Alaska

Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V.

Noble, ERDC/EL TR-07-24, Vicksburg, MS, U.S. Army Corps of

Engineer Research and Development Center, Page 1.

20 U.S. Army Corps of Engineers, 2007, Regional Supplement to

the Corps of Engineers Wetland Delineation Manual, Alaska

Region (Version 2.0), ed. J. S. Wakeley, R. W. Lichvar, and C. V.

Noble, ERDC/EL TR-07-24, Vicksburg, MS, U.S. Army Corps of

Engineer Research and Development Center, Pages 1-2.

Appendix C-13

Manual, the District’s responsibility in this case was

to follow existing regulation, guidance, and policy

(including the Regional Supplement in its appropriate

context) as it evaluated the Appellant’s action. The

District’s use of Regional Supplement data forms in

their AR provided evidence that the District utilized

the Regional Supplement as part of its evaluation of

this action as required by regulation, guidance, and

policy in existence at the time of their evaluation.21

Therefore, this reason for appeal does not have merit.

5.1.3 Action: No action necessary.

5.2 Appeal Reason 2: The subject wetlands

are independent of, and separated from wetlands

found in Channel B. Therefore, the District omitted

material fact when it determined that the subject

wetlands were continuous with those found in

Channel B.22

21 2014 AR pages 72-81.

22 This reason for appeal previously read, “The subject wetlands

are independent of, separated from, and do not have a surface

hydrologic connection with wetlands found in channel B.

Therefore, the District incorrectly applied law, regulation, or

officially promulgated policy when it determined that the subject

wetlands were continuous with those found in Channel B. At

issue in this reason for appeal is whether the wetlands on the

Appellant’s property are continuous with those found in Channel

B (are they all the same wetland). The law, regulation, or policy

as well as the surface hydrologic connection previously

referenced in this reason for appeal relates to whether the

wetlands on the Appellant’s property are adjacent to channel B,

a concept discussed in reason for appeal three in this decision

document. Therefore, the reason for appeal was changed to

reference “omission of material fact” to more accurately reflect

the items the appellant asserted act to fragment the wetland in

question and the surface hydrologic connection was removed

Appendix C-14

5.2.1 Finding: This reason for appeal does not

have merit.

5.2.2 Discussion: In their RFA, the Appellant

stated that the subject wetlands were separated from

those within Channel B by a man-made berm.23

Additionally, the Appellant asserted that the

District’s wording in their AR established that the

wetlands within Channel B differed from those north

of the Channel by topographic position as well as

wetland type.24 Therefore, the Appellant believes the

District’s AR lacks proof that the subject wetlands are

continuous with those found within Channel B.25

In their AR, the District stated that the wetland

on the Appellant’s property was part of a larger, 3,200

acre, un-fragmented wetland that includes most of the

Appellant’s property and a large portion of the area

between Badger Road and the Richardson Highway

near North Pole, Alaska.26 The District clarified

during the 15 July 2014 appeal conference that

approximately 2,500 acres of this wetland lays within

the Channel B watershed.27 The wetland was

described in the District’s AR as including a mosaic of

stunted black spruce forest, deciduous tall and low

shrub communities, as well as emergent herbaceous

from this reason for appeal and will be discussed as part of reason

for appeal three below.

23 Appellant’s 7 January 2014 RFA, pages 11-12.

24 Appellant’s 7 January 2014 RFA, pages 12-13.

25 Appellant’s 7 January 2014 RFA, page 11.

26 2014 AR pages 56 and 58.

27 This is illustrated in the District’s AR on 2014 AR page 345.

Appendix C-15

and

dwarf

shrub-dominated

communities.28

Furthermore, the District stated that field

investigations conducted in May and June 2013,

revealed that a small arm of the southeast portion of

the large wetland extended across a narrow, low lying

portion of the berm connecting the large wetland with

the wetland swale within the upper portion of

Channel B.29 Therefore, the District concluded, as

part of the revised AJD that accompanied the 14

November 2013 proffered permit, that the large

wetland area north of the berm, which includes a

portion of the Appellant’s property, was continuous

with the wetland within Channel B.30

While the District concluded that the wetland was

continuous, the District used language in their AR

that seemed to imply that the different geographic

portions of this continuous wetland were actually

independent wetlands. For example, the District

stated, “Thus, the hydraulic gradient [...] is causing

subsurface flow to lead south from the wetland north

of the berm to the wetland swale in Channel B during

spring and early summer,” and, “...without the berm

[...], the wetland area north of the berm and the

wetland swale would be more broadly contiguous.”

However, following these references in the AR, the

District clarified the word choice when they indicated

that while they previously thought that, “...these two

wetland areas were completely separated on the

ground surface by the berm,” the additional

investigations conducted in May and June of 2013

28 2014 AR page 58.

29 This is illustrated in the District’s AR on 2014 AR page 46.

30 2014 AR pages 58 and 63-66.

Appendix C-16

revealed that the wetlands were connected and

therefore, “...no longer considered separate.”31

Finally, to be truly continuous (the same), the

area between the subject wetland and those within

Channel B must be absent from any barriers. The

District identified multiple barriers in the area which

included the previously mentioned berm as well as

roads, residential developments, and upland areas.32

However, with the exception of the berm, the District’s

AR demonstrated that all the barriers were located

between the wetland itself and the downstream

portion of Channel B and did not fragment the

wetland (i.e. they were not located between the

portion of the wetland on the subject property and the

portion within the upstream portion of Channel B).33

As previously stated, the District’s AR indicated the

berm was previously thought to completely separate

the wetland into two portions. However, field work

revealed that the berm did not completely separate

the wetland.34 Therefore, based on the discussion

above, the District’s AR supports that the subject

wetland is continuous with those within Channel B.

Consequently, this reason for appeal does not have

merit.

5.2.3 Action: No action necessary.

5.3 Appeal Reason 3: Flow measurements

within Channel B, regional topography, and the

presence of permafrost demonstrate there is no

31 2014 AR page 55.

32 2014 AR page 326.

33 2014 AR page 326.

34 2014 AR page 55.

Appendix C-17

surface or subsurface connection between the subject

wetlands and Channel B. Therefore, the District

incorrectly applied law, regulation, or officially

promulgated policy when it determined that the

subject wetlands were connected (adjacent) to

Channel B.

5.3.1 Finding: This reason for appeal does not

have merit.

5.3.2 Discussion: In their RFA, the Appellant

asserted that because the regional topography slopes

to the northwest away from the site, it was impossible

for surface flow to travel southeast (upgradient)

towards the headwaters of Channel B.35 Additionally,

the Appellant asserted that data obtained from flow

measurements at various locations along Channel B

demonstrated that the area wetlands lacked a

subsurface connection to Channel B.36 Furthermore,

the Appellant asserted that rainfall data showed that

evaporation is greater than precipitation for the

region and that any water that infiltrates below the

surface would be lost to the permafrost that is found

within 80-90% of the region.37 By arguing that the

subject wetlands lack a connection (either surface or

subsurface) to Channel B, the Appellant is essentially

arguing that the subject wetlands are not adjacent to

Channel B.

Adjacency is defined in regulation as,

“...bordering, contiguous, or neighboring,” and that

“Wetlands separated from other waters of the U.S. by

35 Appellant’s 7 January 2014 RFA, page 6.

36 Appellant’s 7 January 2014 RFA, pages 7-8.

37 Appellant’s 7 January 2014 RFA, page 18.

Appendix C-18

man-made dikes or barriers, natural river berms,

beach dunes and the like are ‘adjacent wetlands.’”38

Revised Rapanos guidance issued by the Corps in

2008 further clarifies the regulatory definition of

adjacency, stating that wetlands are adjacent if one of

three criteria are satisfied: (1) there is an unbroken

surface or shallow subsurface connection to

jurisdictional waters, (2) they are physically

separated from jurisdictional waters by man-made

dikes or barriers, natural river berms, beach dunes,

and the like, or (3) their proximity to a jurisdictional

water is reasonably close, supporting the sciencebased inference that such wetlands have an ecological

interconnection with jurisdictional waters.39

The U.S. Army Corps of Engineers Jurisdictional

Form

Instructional

Guidebook

(Guidebook)40

establishes standard operating procedures for

conducting, and documentation practices to support

an AJD. Documentation practices required by the

Guidebook for wetlands adjacent to, but not directly

abutting RPWs that flow directly or indirectly into

TNWs specifically require a district to document that

the wetland meets at least one of the three Rapanos

criteria described above. Documentation practices by

the Guidebook required for wetlands directly abutting

33 CFR § 328.3(c).

Grumbles, Benjamin H. and John Paul Woodley, Jr., 2008,

Clean Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States and Carabell v.

United States, p. 5-6.

U.S. Army Corps of Engineers Jurisdictional Form

Instructional Guidebook, June 1, 2007. The Guidebook is found

at http://www.usace.army.mil/Missions/CivilWorks/Regulatory

ProgramandPermits/RelatedResources/CWAGuidance.aspx.

Appendix C-19

RPWs that flow directly or indirectly into TNWs do

not require discussion relative to the three Rapanos

criteria, but documentation that the wetland directly

abuts the RPW with the Guidebook referring to this

geographic orientation as a continuous surface

connection.

As discussed in reason for appeal two above, the

District showed in its AR that the wetland on the

Appellant’s property was part of a larger wetland that

extended into the upper portion of Channel B. The

District further stated in a MFR and its revised AJD

that accompanied the 14 November 2013 proffered

permit that this wetland extends to where the RPW

portion Channel B begins and therefore concluded

that the wetland is adjacent to, and directly abutting

an RPW (Channel B).41 As a result, the District’s AR

satisfied the Guidebook requirements to document

that the wetland is adjacent to Channel B.

While not necessary in this case, the District also

indicated in its AR that the larger wetland satisfied

all three Rapanos guidance criteria for being adjacent

to Channel B.42 The District documented that the

wetland was separated by a berm/barrier (the 40-foot

wide spoil berm) from, as well maintained an

ecological connection with Channel B.43 Additionally,

the District documented that the wetland maintained

an unbroken shallow subsurface connection with

Channel B.44 This shallow subsurface connection was

41 2014 AR pages 43, 48 and 63-66.

42 2014 AR pages 43, 46, and 48.

43 2014 AR pages 46, 54-56, 305, and 325-326.

44 2014 AR page 46.

Appendix C-20

a main portion of the Appellant’s assertions associated

with this reason for appeal.

The District’s rationale associated with the

shallow subsurface hydrologic connection was based

on a connection established vertically through

infiltration from the wetland into the underlying,

shallow aquifer, and then laterally from the fast

moving aquifer into Channel B.45 In their AR, the

District stated that some precipitation remains

available for infiltration into the aquifer as only 60 to

70 percent is removed by “actual” evapotranspiration

(which the District distinguished from “potential”

evapotranspiration which exceeds precipitation).46

The District also acknowledged that the majority of

the region was mapped as having soils with seasonal

frost, but that discontinuous permafrost were also

present.47 The District believed this did not prevent

infiltration into the aquifer as water perched above

seasonal frost would reach the aquifer once the frost

thawed or water above permafrost could reach the

aquifer by either moving laterally around the

permafrost or vertically through thaw zones within

the permafrost. Once in the aquifer, the District

stated a small portion would move southeast into the

upper reaches of Channel B due to the hydraulic

gradient produced by the elevation difference (the

District stated Channel B was approximately one foot

below the ground surface of the wetland area to the

north). However, the majority of the infiltration would

be carried within the fast moving aquifer along the

45 2014 AR pages 55-56, and 328.

46 2014 AR pages 55, 57, and 323-324.

47 2014 AR pages 314-316, 321-322, and 324-326.

Appendix C-21

predominant topographic gradient to the northwest

towards the downstream portions of Channel B.48

Therefore,

while

this

documentation

was

unnecessary, the District’s AR addresses the

Appellant’s assertions associated with this reason for

appeal and supports their conclusion that the subject

wetlands were adjacent to Channel B via a shallow,

subsurface connection.

Based on the above discussion, while the District’s

AR contains unnecessary discussion relative to the

three Rapanos guidance adjacency criteria, it does

satisfy

the

Guidebook’s

requirements

for

documentation that the wetland is adjacent to

Channel B. Therefore, this reason for appeal does not

have merit.

5.3.3 Action: No action necessary.

5.4 Appeal Reason 4: “The contribution from the

entire Channel B watershed is less than one percent

of total flow in the [Chena River] and is insignificant.”

Therefore, the District incorrectly applied law,

regulation, or officially promulgated policy when it

determined that Channel B, in combination with

similarly situated wetlands (including the subject

wetland), had a significant nexus with the Chena

River, the nearest downstream traditionally

navigable water.

5.4.1 Finding: This reason for appeal does not

have merit.

5.4.2 Discussion: In their RFA, the Appellant

asserted that the volume of discharge from Channel B

into the Chena River is insignificant as it is so small

48 2014 AR pages 55, 323-324, and 326.

Appendix C-22

relative to the overall volume of flow in the Chena

River. Consequently, the Appellant believes Channel

B lacks a significant nexus with the Chena River.49

In 2007, as a result of the U.S. Supreme Court

Rapanos decision,50 the EPA and the Corps, in

coordination with the Office of Management and

Budget and the President’s Council on Environmental

Quality, issued a guidance memorandum (Rapanos

guidance)

ensure

that

jurisdictional

determinations, permitting actions, and other

relevant actions were consistent with the Rapanos

decision and supported by the AR. The two agencies

issued joint revised Rapanos guidance on 2 December

2008, in response to public comments received and the

agencies’ experience in implementing the Rapanos

decision.51

The Rapanos guidance requires the application of

two new standards to support an agency jurisdictional

determination for certain water bodies. The first

standard, based on the plurality opinion in the

Rapanos decision, recognizes regulatory jurisdiction

over a water body that is not a TNW if that water body

is “relatively permanent” (i.e., it flows year-round, or

at least “seasonally”) and over wetlands adjacent to

such water bodies if the wetlands directly abut the

49 Appellant’s 7 January 2014 RFA, page 6.

50 Combined cases of Rapanos v. United States and Carabell v.

United States, 126 S. Ct. 2208 (2006).

Grumbles, Benjamin H. and John Paul Woodley, Jr., 2007,

20118, Clean Water Act Jurisdiction Following the U.S. Supreme

Court’s Decision in Rapanos v. United States and Carabell v.

United States. Original guidance released June 5, 2007, revised

guidance released December 2, 2008.

Appendix C-23

water body. In accordance with this standard, the

Corps and EPA may assert jurisdiction over the

following categories of water bodies: (1) TNWs, (2) all

wetlands adjacent to TNWs, (3) relatively permanent

non-navigable tributaries (with at least seasonal flow)

of TNWs, and (4) wetlands that directly abut

relatively permanent, non-navigable tributaries of

TNWs.

The second standard requires a case-by-case

“significant nexus” analysis to determine whether

waters and their adjacent wetlands are jurisdictional.

A significant nexus may be found where a tributary,

including its adjacent wetlands, has more than a

speculative or insubstantial effect on the chemical,

physical, and biological integrity of a TNW.

Consequently, the agencies may assert jurisdiction

over wetlands that are adjacent to but that do not

directly abut a relatively permanent, non-navigable

tributary if the RPW and its adjacent wetlands are

determined (on the basis of a fact-specific analysis) to

have a significant nexus with a TNW.

As discussed in reasons for appeal two and three

above, the District’s AR established that the subject

wetland was part of a larger wetland that extended

into Channel B, then northwest within the Channel to

the point where the Channel became an RPW.

Therefore, the District concluded that the wetland

was adjacent to (and abutting) an RPW.52 As such,

this satisfied the first standard of the Rapanos

guidance described above and regulatory jurisdiction

is recognized over the wetland without the legal

52 2014 AR pages 43, 46, 48, and 58.

Appendix C-24

obligation to make a case-by-case significant nexus

analysis.

It should be noted that while not required in this

circumstance, the District’s AR included a lengthy

significant nexus analysis that was part of the

District’s basis of jurisdiction associated with the 22

October 2012 initial proffered permit. The District

recognized during the appeal conference that the

analysis was no longer required, but chose not to omit

it due to the extensive time and resources invested in

it. Nevertheless, the District’s significant nexus

analysis is immaterial as it was not required.

Consequently, the Appellant’s assertion that Channel

B lacks a significant nexus with the Chena River is

also immaterial because, as previously mentioned,

jurisdiction is recognized in this circumstance without

the legal obligation to make a case-by-case significant

nexus analysis. Therefore, this reason for appeal does

not have merit.

5.4.2 Action: No action necessary.

5.5 Appeal Reason 5: The District lacked,

“...sufficient guidance, policy, and regulation to

conduct and publish significant nexus findings.”

Therefore, the District was arbitrary and capricious

when it concluded Channel B and its adjacent

wetlands (including the subject wetlands) had a

significant nexus with the Chena River.

5.5.1 Finding: This reason for appeal does not

have merit.

5.5.2 Discussion: In their RFA, the Appellant

stated that the District lacked sufficient “...guidance,

policy, and regulation to conduct and publish

significant nexus findings.” The assertion was based

Appendix C-25

on hand written comments on an internal (District)

staff action summary dated 24 February 2012, that

stated

“Kevin, give me your analysis.”53

“Sir: This version includes [Hydrology and

Hydraulic Engineer (H&H)] comments. Greg

has done a great job and I agree with his

conclusions. Biggest issue is that what

constitutes a ‘significant nexus’ is a judicial

creation that is not defined and ultimately

can only be decided by the courts. OC has

reviewed and found it legally sufficient,

Kevin.”54

During the appeal conference, the District stated

that the response was provided by Mr. Kevin Morgan,

the former District Regulatory Division Chief. The

District stated that because Mr. Morgan is now

retired, they are unable to definitively explain the

comment. Regardless, the sufficiency of regulation,

guidance, and policy available to a district is beyond

the scope of the appeal process, because an appeal is

associated with a specific Corps action and reasons for

appeal are limited to, for example, a district’s

application of regulation, guidance, or policy specific

53 It should be noted that the RFA attributed this comment to

LTC James Stone. However, the source of this comment is not

entirely clear as it encompassed the spaces allotted for both the

district and deputy district commanders and the signature

associated with it is not legible. It is clear, however, that the

comment originated from either the commander or deputy

commander as the response included the word, “Sir.” Due to this

uncertainty, the quote here differs from that in the RFA as it did

not include an originator.

54 2014 AR page 292.

Appendix C-26

to that action. Furthermore, as discussed in reason for

appeal four above, while included in the District’s AR,

a significant nexus analysis was not required in this

case. Therefore, the sufficiency of regulation,

guidance, or policy relative to a significant nexus

analysis is immaterial. Consequently, this reason for

appeal does not have merit.

5.5.3 Action: No action necessary.

6. CONCLUSION. For the reasons staled above, I

have determined the reasons for appeal do not have

merit. The final Corps decision in this case is the

Alaska District Engineer’s proffered permit. This

concludes the administrative appeal process relative

to this action.

2 MAR 15

Date

s/ Jeffrey L. Milhorn

JEFFREY L. MILHORN, P.E.

Brigadier General, USA

Commanding

Appendix D-1

Department of the Army

Permit Evaluation and Decision Document

APPLICANT: Mr. Richard Schok, Tin Cup, LLC

APPLICATION NO.: POA-2003-1422

WATERWAY: Channel B

This document constitutes my Environmental

Assessment, Public Interest Review, Section 404(b)(1)

Guidelines Review and Compliance Determination,

and Statement of Findings for the proposed work.

1.0 Authority

This permit action is being taken under authority

delegated to the District Engineer by 33 CFR 325.8,

pursuant to:

☐

Section 10 of the Rivers and Harbors Act of 1899

☒

Section 404 of the Clean Water Act

☐ Section 103 of the Marine Protection, Research,

and Sanctuaries Act of 1972

2.0 Proposed Project

Tin

Cup,

LLC

proposes

discharge

approximately 1,000,000 cubic yards (cy) of gravel fill

in up to 118.0 acres of jurisdictional wetlands to create

a gravel pad that would support facilities for pipe

manufacturing, coating, and storage. In addition, 24

acres of wetlands would be mechanically cleared for

gravel extraction and 1 acre of wetlands would be

temporarily filled for the construction of a 1,500-foot

long gravel access road connecting the gravel source

area and the gravel pad. Several buildings and a

railroad spur would be constructed upon the gravel

Appendix D-2

pad, which would be 213.4 acres total (118.0 acres

wetland and 95.4 acres upland).

2.1 Project Description from Public Notice:

The applicant would place approximately

1,000,000 cubic yards (cy) of gravel fill into 118 acres

of jurisdictional wetlands to create a gravel pad that

would support facilities for the manufacture and

storage of large-diameter pipe. In addition, 24 acres of

wetlands would be mechanically cleared for gravel

extraction and 1 acre of wetlands would be

temporarily filled for the construction of a 1,500-foot

long gravel access road connecting the gravel source

area and the gravel pad. Several buildings and a

railroad spur would be constructed upon the gravel

pad. The applicant is a holding company for Flowline

Alaska, Inc., which provides pipe fabrication and

storage services to oil and gas companies, the Alaska

Department of Transportation and Public Facilities

and others.

Although the project plans remain essentially

unchanged from 2008, the proposed activity would

result in the permanent placement of fill into 118

acres of wetland rather than 165 acres as originally

proposed because the total amount of wetland at the

site had been overestimated in 2008. The 2009

wetland delineation, demonstrated that the extent of

wetland within the proposed project area is 143 acres;

the proposed project would permanently fill 118 acres

for construction of a fill pad, temporarily fill 24 acres

for gravel excavation and temporarily fill 1 acre for the

gravel source area access road.

Appendix D-3

2.1.1 Applicant’s Avoidance and Minimization

Information:

The applicant proposes the following measures to

avoid and minimize impacts to waters of the United

States including wetlands from activities involving

discharges of dredged or fill material:

a. Avoidance: Although much of the project would

occur in a previously cleared upland (95.4 acres), the

project is unable to avoid placing fill in 143 acres of

wetland (118 acres for the gravel pad, 1 acre for the

temporary access road and 24 acres for the gravel

source area) due to the broad expanse of wetland on

site.

b. Minimization: During the processing for the

2004 permit, the applicant reduced the proposed

gravel pad by 80 acres. The area that would no longer

be used for this part of the gravel pad is jurisdictional

wetland. The current proposal retains this reduction

in the project design and the associated reduction in

wetland impact.

All fill would be placed on geotextile sheeting or

equivalent material to prevent excessive settling and

minimize thaw of the underlying frost. During fill

placement, silt fences or hay bales would be placed at

the edges of the buffer zones to prevent sedimentation

in adjacent wetlands. In addition, the applicant

proposed 25-foot wide vegetated buffers surrounding

the fill pad; these buffers would be mainly comprised

of wetland and would not be directly disturbed by the

proposed activity.

Appendix D-4

2.1.2 Applicant’s

Mitigation:

Proposed

Compensatory

The applicant proposes to establish a pond with

emergent wetland fringe after completing gravel

extraction by following the April 29, 2004 Gravel

Source Reclamation Plan that was submitted to the

District in 2008. The reclamation area would be

approximately 24 acres and would contain a pond (18

acres) and fringe wetland (6 acres). Overburden and

topsoil stockpiled during gravel extraction would be

placed in the pond and the adjacent wetland fringe

area to be created as part of the reclamation. The

wetland fringe would include the pond shoreline,

which would be graded at a 20 to 1 (horizontal to

vertical) slope. The reclamation plan includes

establishing a 250-foot wide buffer area situated

around the west, north and east sides of the

reclamation area; this buffer area would be comprised

of wetland that would not be directly disturbed by the

proposed activity. In addition, the 1,500-foot access

road would be removed after gravel extraction is

complete.

2.1.3 Project Changes Subsequent to Public

Notice:

The development plan was slightly revised to

avoid encroachment upon the dedicated section-line

easement between Sections 34 and 35 and between

Section 26 and 27. This shift would not affect overall

wetland impacts and minimally affect indirect

impacts from surface flows during project operation.

2.2 Location

The project site is located within Sections 26, 27,

34 and 35, T. 1 S., R. 1 E., Fairbanks Meridian, USGS

Appendix D-5

Quad Maps Fairbanks (D-1) SW and Fairbanks (D-2)

SE,; Latitude 64.7958° N., Longitude 147.4966° W.;

near North Pole, Alaska. The site is between the Old

Richardson

Highway

and

Bradway

Road

approximately 1.5 miles east of the intersection of

Dennis Road and the Old Richardson Highway.

2.3 Scope of Analysis:

The scope of analysis for this action includes the

impacts, alternatives, and project benefits resulting

from the regulated activities identified above.

2.3.1 National Environmental Policy Act (NEPA)

2.3.1.1 Factors

2.3.1.1.1 Whether or not the regulated activity

comprises “merely a link” in a corridor type

project:

The project is not a corridor type project.

2.3.1.1.2 Whether there are aspects of the upland

facility in the immediate vicinity of the

regulated activity which affect the location and

configuration of the regulated activity: The 95.4

acres of upland proposed for construction are

immediately adjacent to the wide expanse of wetlands

in the project area.

2.3.1.1.3 The extent to which the entire project

will be within the Corps jurisdiction:

Approximately 60 percent of the project site contains

waters of the U.S. and is thereby within the U.S. Army

Corps of Engineers (Corps) jurisdiction.

2.3.1.1.4 The extent of cumulative Federal

control and responsibility: The extent of

cumulative Federal control and responsibility only

Appendix D-6

encompasses those portions of the project area that

are within Corps jurisdiction.

2.3.1.2 Determined Scope for NEPA:

☒ Only within the footprint of the regulated activity

within the delineated water.

☐ Over entire property.

☐ Other

The scope for NEPA will be constrained to those

portions of the project area that contain waters of the

U.S. and are thereby within Corps jurisdiction.

2.3.2 National

(NHPA):

Historic

Preservation

Act

2.3.2.1 Tests:

Activities outside the waters of the United States

are included because ALL of the following tests are

satisfied:

1) Such activity would not occur but for the

authorization of the work or structures within the

waters of the United States;

2) Such activity must be integrally related to the

work or structures to be authorized within waters of

the United States (or, conversely, the work or

structures to be authorized must be essential to the

completeness of the overall project or program); and

3) Such activity must be directly associated (first

order impact) with the work or structures to be

authorized.

2.3.2.2 Determined Scope for NHPA: The NHPA

scope covers the entire project area.

Appendix D-7

2.3.3 Determined Scope (Action Area) for

Endangered Species Act (ESA). [Action area

means all areas to be affected directly or

indirectly by the Federal action and not merely

the area that falls directly under our regulatory

jurisdiction. The determined scope for ESA is

the Action Area, which may be larger than the

scope for NEPA, Section 404 and Section 10. See

CDD Guide for additional information.] N/A

There are no endangered species within the project

area.

2.4 Purpose and Need

2.4.1 Applicant’s stated purpose and need:

The applicant’s stated purpose is to consolidate

existing pipe manufacturing facilities in five locations

for more efficient and economical operations.

2.4.2 Basic project purpose and

dependency [40 CFR 230.10(a)(3)]:

water

The basic purpose of the project is the

construction of a pipe manufacturing facility. The

project is not water dependent, and would occur

within a special aquatic site, jurisdictional wetlands;

therefore, pursuant to 40 CFR 230.10(a)(3),

practicable alternatives not involving wetlands are

presumed to be available, and these alternatives are

presumed to have less adverse impact on the aquatic

ecosystem.

2.4.3 Overall project purpose [40 CFR

230.10(a)(2) and 2009 HQ SOP page 15]: The

overall project purpose is to construct a pipe

manufacturing facility within the Fairbanks/North

Pole vicinity.

Appendix D-8

2.4.4 Changes to project purpose and need, as

determined by the Corps. [33 CFR 325 App. B

paragraph 9b(4): There are no changes to the project

purpose and need.

2.5 Site description; existing conditions: The site

is within the alluvial plain stretching between the

Tanana and Chena Rivers. The alluvial plain is a

relatively flat area about 23 miles long and 8 miles

wide that is bounded by the Tanana River on the

south, Moose Creek Dam on the east and the bases of

bedrock hills on the north and west near the Chena

River. As with most of the alluvial plain, the site is

nearly flat, but slopes gently from south to north at

approximately 0.1 percent.

The 2009 wetland delineation demonstrated that

most of the Tin Cup site is wetland, except for the 95.4

acres of upland in the southwestern part of the site

and the 8.6 acres of upland in the eastern part of the

site (TPECI 2009). Although the delineation excluded

the 40 acres in the southeastern part of the site, the

District determined that this area is wetland. Thus, of

the 455 acres at the site, the total amount of wetland

is 351 acres.

The wetland delineation report identifies five

plant communities within the on-site wetland as

follows: Shrub-Scrub, Black Spruce Closed Forest,

Alaska Birch/Shrub Birch, Grasslike and Dwarf

Shrub and Alaska Birch/Calamagrostis. The

Grasslike and Dwarf Shrub community comprises the

27-acre area that was cleared of vegetation in 2007.

These communities support near-surface saturation

and/or very shallow inundation; none support any

substantial amount of open water.

Appendix D-9

The on-site wetland is part of a very large

(approximately 2,500 acres within the sub-watershed)

wetland that extends mainly east and south of the

site. The wetland is generally unencumbered by

roads, houses or other structures, but is constrained

by the Richardson Highway on the south and

Bradway Road on the north.

The southwestern 95.4 acres of the site was

cleared of vegetation and lightly graded over 20 years

ago. As a result, several parallel spoil berms

(‘windrows’) were created; the berms are about 75 feet

wide and elevated approximately 3 feet above the

surrounding ground. This area has been left fallow,

but is mowed regularly to prevent re-growth of shrubs

and trees. The 8.6-acre upland in the eastern part of

the site also appears to have been cleared and graded

over 20 years ago.

3.0 Alternatives Considered [33 CFR 320.4(b)(4),

40 CFR 230.10]

3.1 No Action

Under the No Action Alternative, the project

would not be permitted, constructed or operated. The

No Action alternative would allow the site to persist

undeveloped. The applicant would not meet its

objective to construct a pipe manufacturing and

storage facility.

3.2 Other project designs

No other project designs were considered as no

other designs would meet the project purpose. The

applicant reduced the proposed gravel pad by 80 acres

during the processing for the 2004 permit, which

minimized the total wetland impact by the same

amount (the 80 acres is entirely wetland). The current

Appendix D-10

proposal retains this reduction in the project design

and the associated reduction in wetland impact.

Constraining the project footprint to the 95.4-acre

upland in the southeastern part of the site would not

allow the project to meet its objectives and therefore

is not a practicable alternative.

3.3 Other sites: According to a letter sent by the

applicant and received August 26, 2008, other sites

considered were dismissed as not practicable. The

criteria used to locate the proposed project were as

follows: a) service by the Alaska Railroad, b) proximity

to a major highway, c) relatively flat, d) large enough

for adequate storage and safe operation, e) lack of

contamination from petroleum or other toxins, f)

limited geographic extent of wetlands. No other tracts

that were available are of a suitable size, location and

accessibility. We concur with the applicant’s position

that there are no practicable alternatives to the

selected site.

3.4 Least Environmentally Damaging Practicable

Alternative (LEDPA)

The applicant’s preferred alternative results in

the least amount of impacts to waters of the U.S.

compared to the other practicable alternatives, and is

the LEDPA.

As outlined above, the project would minimize

impacts to waters of the U.S. by constraining

construction activities to 213.4 acres of a 455-acre

contiguous area owned by the applicant, locating the

proposed project upon a site that is 40 percent cleared

and disturbed uplands, and locating the remainder of

the project upon wetlands of no more than moderate

functional value.

Appendix D-11

4.0 Public Involvement

We received a complete application for the project

on May 22, 2008 and a slightly revised application on

May 23, 2012. A public notice describing the project

was issued and posted on the Corps website on

May 25, 2012. The 15-day public notice was extended

to a 30-day period and expired on June 25, 2012.

4.1 Comments Received

Comment submissions were received by federal,

state and local agencies, organizations, and

individuals. Within these submissions, substantive

comments were identified and responded to by the

Corps. The comments identified during the public

notice period fell into five subject categories described

as follows:

• Impacts to surface drainage/flooding

• Impacts to water quality

• Impacts to wildlife

• Limited discussion of alternatives analysis

• Limited compensatory mitigation

4.1.1 Federal Agencies

4.1.1.1 U.S. Environmental Protection Agency

(EPA): In their June 25, 2012 letter, the EPA

commented that the proposal fails to follow the

404(b)(1) Guidelines because it does not clearly

demonstrate that there is no practicable alternative to

the proposed discharge that would have less adverse

impact on the aquatic ecosystem. This assertion

applies to the entire project including the proposal to

extract gravel on site. They also assert that it is

difficult to comprehend the need for 213.4-acre gravel

Appendix D-12

pad when existing facilities currently operate on 42

acres, especially in light of the stated project purpose

which is to consolidate operations. A less damaging

practicable alternative could include reducing the fill

pad, perhaps by confining the placement of fill

material into the 95.4-acre upland, phasing

construction over time, and/or obtaining gravel from

an existing nearby source. EPA recommends that the

Corps require compensatory mitigation that would

comply with the Final Mitigation Rule (40 CFR 332)

and compensate for functional losses from conversion

of 24 acres of wetlands to a reclaimed pond in addition

to the permanent loss of 118 acres of wetlands. Unless

additional information is provided that would allay

EPA’s concerns, EPA recommends permit denial.

4.1.1.2 U.S. Fish and Wildlife Service (USFWS):

In their June 22, 2012 letter, the USFWS expressed

concerns about the proposed loss of wetlands and their

associated functions including water storage,

groundwater recharge, pollutant sequestration, and

wildlife habitat. They indicate that the project would

further cumulative impacts to these functions in a

sub-basin that is undergoing development and likely

to experience the “runoff issues” that currently occur

in South Fairbanks, the most heavily developed subbasin in the region. USFWS is concerned about the

size of the project and that the need for the project is

speculative. They recommend constructing the project

in phases with the intent of conserving wetlands,

preparing and adhering to a drainage plan to retain

runoff on-site or include 50-foot wide vegetated

buffers around the site perimeter, constructing the

project outside the May 1–July 15 bird nesting

window, compensating for unavoidable impacts to

wetlands by wetland preservation at a 1.5:1 and/or 2:1

Appendix D-13

ratio, following the proposed reclamation plan with

the additional conditions: i) restore work pads around

the excavated area and ii) accomplish reclamation of

any part of the gravel source area within 2 growing

seasons after abandonment, staking or flagging

construction boundaries, maintaining natural

drainage patterns and stabilizing all disturbed,

stockpile and fill areas to prevent erosion.

4.1.1.3 National Marine Fisheries

(NMFS): No comments were received.

Service

4.1.1.4 U.S. Coast Guard (USCG): No comments

were received.

4.1.2 Federally Recognized Tribes: No comments

were received.

4.1.3 State Agencies

4.1.3.1 Alaska Department of Fish and Game –

Division of Habitat (ADF&G): No comments were

received.

4.1.3.2 Alaska Department of Natural Resources

(ADNR): No comments were received.

4.1.3.3 ADNR, Office of History and Archaeology

(OHA): No comments were received.

4.1.3.4 Alaska Department of Environmental

Conservation (ADEC): On July 3, 2012 we received

a copy of the Certificate of Reasonable Assurance for

the project that was dated June 29, 2012.

4.1.3.5 Other State Agencies: No comments were

received.

4.1.4 Local Agencies: In their June 15, 2012 letter,

the Fairbanks North Star Borough (FNSB)

Department of Community Planning stated that the

Appendix D-14

FNSB Comprehensive Plan Use Map shows the

project area as Perimeter Area, Urban Area and Light

Industrial. The project would be allowed under the

current zoning, which is General Use-1. In addition, a

Floodplain Permit would not be required because the

area is within Flood Zone X. The FNSB letter

expresses concern about how the proposed project

would affect surface water drainage in the project

vicinity. The FNSB claims that the gravel pads and

other features proposed would “disrupt existing

surface water drainage patterns” and may thereby

exacerbate the potential for flooding. The FNSB is

particularly concerned about the potential for flooding

impacts on their property within Section 36, T.1S.

R.1E., Fairbanks Meridian, which is just southeast

and slightly up-gradient of the project site. FNSB

requests that Tin Cup, LLC be required to provide a

detailed drainage plan demonstrating how the project

would be designed to minimize flooding impacts to

properties in the project vicinity.

4.1.5 Organizations: No comments were received

from any private organizations.

4.1.6 Individuals: Mr. Miles Trampush, who owns

property just north of the proposed project, visited the

Fairbanks Field Office on June 1, 2012 to voice his

comments directly. He expressed concern about the

project’s potential for interfering with his ability to

access the Richardson Highway from his property

along Rozak Road.

4.1.7 Public Meeting: N/A

4.1.8 Public Hearing: NIA

4.1.9 Site visit ☒ was/☐ was not conducted: Greg

Mazer, project manager for the Corps Fairbanks

Appendix D-15

Regulatory Field Office, visited the site on

September 10, 2010 to assess environmental

conditions.

4.2 Other Issues Identified by the Corps: None.

4.3 Evaluation and Consideration of Comments.

On July 23, 2012, the applicant submitted

responses to comments generated during the public

comment period and determined to be substantive in

the District letter sent to the agent and applicant on

July 2, 2012. The applicant’s letter maintains that

neither creating a drainage plan nor expanding the

planned 25-foot buffer around the gravel pad is

necessary due to the limited surface runoff presently

and the capacity of the proposed gravel pad to allow

infiltration post-construction. The letter asserts that

the planned pond reclamation would serve as

appropriate compensatory mitigation for the expected

impacts, that the work pads around the excavation

area would be removed and recontoured, and that the

reclamation would be accomplished within two

growing seasons after a specific portion of the pit is no

longer in use. No compensatory mitigation was

required in the original permit for this project, which

was issued April 15, 2004 and expired March 31, 2007.

The response letter added new information

clarifying that there is a need for the proposed project;

the applicant states that there are numerous clients

with upcoming needs for different projects that would

require their services over the next 5 to 15 years. The

project site was chosen after a 10-year search and was

determined to have a relatively large proportion of

uplands in 1992. The on-site gravel source is

financially preferable to obtaining gravel off-site and

Appendix D-16

would minimize fuel consumption and traffic impacts

associated with fill material transport. The letter

declares that phasing construction would not be

practical “due to the high cost of mobilization and

demobilization of equipment and the length of time

required after fill is placed before construction can

begin (approximately 2 years).”

4.3.1 Issues/comments forwarded to

applicant. ☐ NA ☒ Yes. Date: July 2, 2012

the

4.3.2 Applicant replied/provided views. ☐ NA

☒ Yes.

4.3.3 Comments not discussed further in this

document as they are outside the Corps’

purview: None.

4.3.4 Consideration of comments within Corps’

purview: Although the Corps concurs with the EPA

that a less damaging alternative would be for the

applicant to constrain construction to the 95.4-acre

upland, the applicant has provided information

demonstrating that such a constraint would not allow

the project to meet its objectives and therefore is not

a practicable alternative. The proposed project, in

contrast, is sufficiently large to meet the applicant’s

need for providing storage of large-diameter pipe and

conducting pipe joining and other operations in a safe

manner. Furthermore, the applicant reduced the

proposed gravel pad by 80 acres during the processing

for the 2004 permit, which minimized the total

wetland impact by the same amount (the 80 acres is

entirely wetland). The current proposal retains this

reduction in the project design and the associated

reduction in wetland impact.

Appendix D-17

The Corps concurs with USFWS and FNSB that

the proposed project could alter drainage patterns and

exacerbate flooding in the vicinity. However, it is

unclear to what extent the project would cause such

changes. Furthermore, the vast majority of runoff

generated on-site would be directed to the wetland

buffer areas to be retained around the perimeter of the

fill pad. The establishment of this buffer area would

be a special condition of the permit, if issued. In

addition, some runoff from the proposed gravel pad

would likely lead to the proposed gravel source

area/reclaimed pond during spring snowmelt and

other moderately large runoff events. The pond, which

would be approximately 18 acres and surrounded by

side-slopes that would rise 2-3 feet above the pond’s

ordinary high water, would likely accommodate most

of the excess runoff from the site during very large

runoff events. Runoff and water circulation is further

discussed in Section 5.1.2 below.

The Corps concurs with both EPA and USFWS

that the applicant must add a few measures to their

pond reclamation plan and submit a compensatory

mitigation plan that would comply with the Final

Mitigation Rule (40 CFR 332). The compensatory

mitigation plan that would be required as a special

condition of the permit, if issued, must include the

measures to which the applicant agreed in his July 23,

2012 response letter as well as a few others such as

permanently preserving the 250-foot buffer area

around the gravel source area/pond reclamation site.

Appendix D-18

5.0 Analysis of Beneficial and Detrimental

Impacts to the Environment and the Public

Interest, and Factual Determinations for

Discharges of Dredged or Fill Material [33 CFR

320.4(a-r), 33 CFR 325 App B, and 40 CFR 230.11 and

230.20 - 230.77]

5.1 Factors

5.1.1

Physical

substrate

230.11(a) and Substrate 230.20

determinations

The site is situated on an undeveloped portion of

the alluvial plain between the Tanana and Chena

Rivers. The gradient is nearly flat, sloping to the north

and northwest at approximately 0.5 percent.

The online Web Soil Survey (NRCS 2009)

indicates that four soil map units are found at the site:

North Pole–Noonku complex, Liscum–Noonku

complex, and Eielson fine sandy loam. The North

Pole–Noonku complex, a partially hydric soil where 90

percent of the unit is composed of hydric soil, occupies

approximately 57.5 percent of the site. The Liscum–

Noonku complex, a fully hydric soil, comprises

approximately 27 percent of the site. The Eielson fine

sandy loam, a partially hydric soil where only 20

percent of the unit is composed of hydric soil, occupies

11.5 percent of the site. The Piledriver–Eielson coplex,

a partially hydric soil where only 5 percent of the unit

is composed of hydric soil, occupies 4 percent of the

site.

The Soil Survey of Greater Fairbanks Area,

Alaska (NRCS 2005) and the NRCS Web Soil Survey

(NRCS 2009) state that the North Pole–Noonku soil is

a poorly to very poorly drained soil that was formed in

alluvial flats and sloughs; it contains muck or silt

Appendix D-19

loam in the upper part of the profile with fine sandy

loam, stratified sand or very gravelly sand in the

lower part of the profile (profile extends from soil

surface to 5 feet below ground surface). The Liscum–

Noonku complex is a very poorly drained soil that was

formed in alluvial flats and sloughs; it contains muck

or silt loam in the upper part of the profile with fine

sandy loam, stratified sand or stratified silt loam in

the lower part of the profile. The Eielson fine sandy

loam is a moderately well drained soil that was formed

in floodplains; it contains very fine sandy loam in the

upper part of the profile and stratified silt loam to fine

sand in the lower part of the profile. The Piledriver–

Eielson Complex is a somewhat poorly drained soil

that was formed in floodplains; it contains mostly fine

sandy loam over sand and gravel.

Construction and operation activities for the

proposed project would cause impacts to the physical

substrate through a) earth-moving activities resulting

in substrate removal and deposition as well as some

erosion and sedimentation, b) potential equipment oil

and fuel spill/leaks that could result in contamination,

and c) vehicular activity resulting in some erosion,

sedimentation and contamination.

The applicant would excavate gravel in the

subsurface layers down to approximately 60 feet

below ground surface in the northeastern part of the

site, which is predominantly underlain by the

Piledriver–Eielson complex. The excavated gravel

would serve as the source of gravel for the fill pad and

would thereby eliminate the need to import fill

material from off site. All fill would be placed on

geotextile sheeting or equivalent material to prevent

Appendix D-20

excessive settling

underlying frost.

and

minimize

thaw

the

The potential effects upon project area substrates

would comply with the 404(b)(1) Guidelines with

appropriate conditions. The permit, if issued, would be

conditioned to require the applicant to implement

appropriate best management practices (BMPs) such

as silt fences and fabric logs to minimize erosion and

sedimentation and prevent degradation of water

quality during construction. Other BMPs to minimize

erosion and sedimentation may be required by the

Alaska Department of Environmental Conservation

(ADEC) Certificate of Reasonable Assurance and/or

the Storm Water Pollution Prevention Plan (SWPPP)

to be prepared, submitted and followed in accordance

with Alaska Pollutant Discharge Elimination System

(APDES) regulations.

5.1.2 Water circulation, fluctuation and salinity

determinations 230.11(b), Current patterns and

water circulation 230.23, and Salinity gradients

230.25:

Surface drainage that resulted from flooding by

the Tanana and Chena Rivers has been precluded

entirely by the Chena River Flood Control Program.

However, natural drainage pathways within the

wetlands on-site are mostly unobstructed because of

the limited direct disturbance; they are well vegetated

with native trees and shrubs. Most surface water

entering

the

wetlands

removed

via

evapotranspiration, but a small portion enters the

aquifer via infiltration. It is presumed that salinity

levels are very low.

Appendix D-21

Circulation and fluctuation of surface water

would be affected by the proposed construction.

Creation of impervious surfaces would generate

increased storm water runoff and obstruct and/or reroute natural runoff. The large fill pad proposed could

exacerbate the frequency, magnitude and duration of

the widespread ponding that occurs every spring and

during some large storm events in summer.

The vast majority of runoff generated on-site

would be directed to the wetland buffer areas to be

retained around the perimeter of the fill pad.

Although no retention/detention pond system has

been proposed, some runoff from the proposed gravel

pad would lead to the proposed gravel source

area/reclaimed pond during spring snowmelt and

other moderately large runoff events. The pond, which

would be approximately 18 acres and surrounded by

side-slopes that would rise 2-3 feet above the pond’s

ordinary high water, would likely accommodate most

of the excess runoff from the site during very large

runoff events.

The water quality volume calculated via the

ADEC Storm Water Guide (2009) protocol is 27.5 acrefeet using a precipitation amount of 1.8 inches, which

is equivalent to the runoff expected during typical

spring snowmelt. The typical spring snowmelt value

was derived from the average end-of-season (April 1)

snowpack of 18 inches and a water equivalency of 10

percent (Western Regional Climate Center 2012;

ADEC 2009). The water quality volume approximates

the storage capacity needed to reduce the annual,

post-development total suspended solids loadings by

80 percent.

Appendix D-22

The potential effects to water circulation and

fluctuation would comply with the 404(b)(1)

Guidelines with the inclusion of appropriate

conditions. The permit, if issued, would be conditioned

to require the applicant to direct surface runoff to the

proposed gravel source area/reclaimed pond to the

extent practicable.

5.1.3 Suspended particulate/turbidity determinations 230.11(c) and 230.21:

Although there is little available information in

the project vicinity, it has been observed that levels of

suspended solids and turbidity in nearby waters (e.g.,

Channel B) are fairly low throughout most of the year

except perhaps during break-up and very large

rainfall events. The wetland area within the project

site comprises a relatively small proportion of wetland

area within the Channel B sub-watershed and thereby

has only a minor effect on suspended particulates and

turbidity in Channel B.

Construction activities for the project could

contribute suspended particulates to adjoining

jurisdictional wetlands from direct deposition or

runoff conveyance. Activities during construction such

as earthmoving, discharge of fill, extrusion of fugitive

dust, equipment oil and fuel spills or leaks, and

vehicular activity, could initiate the contribution of

suspended particulates.

BMPs to be required by the SWPPP would likely

include establishing erosion control features around

the perimeter of the construction site. Movement of

sediment off-site would likely be minimal and readily

prevented by BMPs.

Appendix D-23

The potential effects to suspended particulates

and turbidity would comply with the 404(b)(1)

Guidelines with the inclusion of appropriate

conditions. The permit, if issued, would be conditioned

to require the applicant to install perimeter controls

such as silt fence and stabilize disturbed areas,

stockpile areas, and fill areas in order to prevent

sedimentation and erosion. Requirements of the

Certificate of Reasonable Assurance and the SWPPP

would also likely require that erosion and

sedimentation be minimized during construction.

5.1.4 Water 230.22 (nutrients, chemical content,

dissolved gas, pH, temperature), water quality

320.4(a), and 320.4(d):

Although there is little available information in

the project vicinity, it is presumed that surface and

nearsurface (within the rhizosphere) water quality at

the project site is good. The site is currently

undeveloped, and not known to possess excessive

levels of nutrients or toxins, excessively low pH, or

non-normal soil or water temperatures given the

landscape position and soil type. The wetland area

proposed for permanent fill comprises 2.1 percent of

the wetland area within the Channel B subwatershed

and thereby has only a minor effect on its water

quality; the total project area proposed for fill

comprises 2.3 percent of the total sub-watershed area.

The project site wetland sustains a subsurface

hydrologic connection to Channel B through

infiltration and conveyance of infiltrated water

through the aquifer. Ground water flows at relatively

rapid rates to the northwest through the project

vicinity (Nelson 1978; USGS 1999). Thus, the on-site

wetland supports baseflow in Channel B and

Appendix D-24

contributes to the maintenance of physical and

chemical aspects of water quality including

temperature, nutrients, metals, and bacteria.

As discussed above, project construction activities

could affect water quality through contribution of

sediment, nutrients and contaminants to surface

waters during large runoff events. However, the effect

would likely be minimized by BMPs to minimize

erosion and sedimentation, and filtration by vegetated

wetlands adjacent to the site that would remain

undeveloped.

Construction’s effect on subsurface flow is

uncertain. The volume of subsurface flow may

decrease due to more surface water removal by

evaporation and runoff. However, replacement of

vegetation and organic soil with an approximately 2foot deep layer of gravel fill would likely be insufficient

to deter degradation of existing frost layers and

thereby cause an increase in subsurface flow.

ADEC has issued a 401 Water Quality Certificate

of Reasonable Assurance with applicable effluent

limitations and water quality standards required

under provisions of Section 401 of the Clean Water

Act. This is considered conclusive with respect to

water quality considerations [33 CFR 320.4(d)].

The potential effects to water quality would

comply with the 404(b)(1) Guidelines with the

inclusion of appropriate conditions, and would not be

contrary to the public interest. The permit, if issued,

would be conditioned to require the applicant to

implement appropriate BMPs that would prevent

petroleum contamination, minimize erosion and

Appendix D-25

sedimentation and prevent degradation of water

quality during construction and operation.

5.1.5 Flood hazards 320.4(a)(1), floodplain values

320.4(a)(1), Normal water fluctuations 230.24,

wetlands as storage for storm and flood waters

320.4(b)(2)(v)):

Flooding in the project vicinity is likely occasional

and limited due to the protection from overbank

flooding from the Chena and Tanana Rivers provided

by the Chena River Flood Control Project. In addition,

the widespread wetlands in the vicinity possess water

storage capacity sufficient to accommodate ponding

that occurs during most break-up and high rainfall

events. The project site’s wetland area provides water

storage and thereby reduces flooding downstream.

The flood hazard and water fluctuations may

increase slightly and wetland hydrologic storage may

decrease slightly as a result of the proposed

impervious surfaces and the permanent removal of

118 acres of wetlands. The effect would further

compromise, albeit slightly, the water storage

capacity of the Channel B sub-watershed, which has a

large portion (at least 20 percent) of its area covered

by impervious surfaces and thereby has somewhat

compromised water storage capacity. However, the

effect would be minimized by the on-site areas that

would remain undeveloped including the 25-foot wide

buffer as well as the proposed pond reclamation area,

which would likely accommod

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