In 1993, Congress passed legislation requiring the Army Corps of Engineers to use a particular manual to identify wetlands subject to federal regulation under the Clean Water Act until it legally promulgates a final manual to replace it, which it has never done. That legally required manual limits the agency’s authority by requiring three criteria to be met before land can be declared a wetland. In a blatant attempt to circumvent the limits the manual places on its authority, the agency adopted the so-called “Alaska Supplement” which doubles the amount of land regulated by the agency in that state by declaring permafrost, or permanently frozen ground, to be wetlands.
Pacific Legal Foundation is litigating a challenge to the use of this supplement to control Alaskan property. The Alaska Supplement was never submitted to Congress as required by the CRA and is therefore not legally in effect, should not be enforced, and remains eligible for congressional review. Even though President Trump has ordered the agencies to reconsider the WOTUS rule, reliance on the Rapanos Guidance during that process is illegal until or unless it is properly submitted to Congress for its review.