- Associated Press - Wednesday, May 4, 2016

ANCHORAGE, Alaska (AP) - An Alaska business has sued the Army Corps of Engineers, seeking a ruling that permanently frozen ground cannot be regulated as wetland.

A holding company for Flowline Alaska, a family owned pipe fabrication company in Fairbanks, sued Monday, disputing conditions of a permit issued by the Corps for permafrost-laden property on which the company hopes to move.

The holding company, Tin Cup LLC, is represented by the Pacific Legal Foundation, which litigates on behalf of private property rights and limited government.

Wetlands are valuable for moderating groundwater flow, filtering out pollutants and moderating surface water flow, said attorney Damien Schiff in a phone interview. Frozen ground cannot do those things.

“Those benefits are either substantially decreased or cease to exist when you have permafrost, because it’s frozen, and therefore it can’t absorb, can’t filter, can’t regulate the same way as a non-frozen wetland,” he said.

He likened permafrost to a sponge.

“If you have a frozen sponge, that sponge is not going to function at all the way you would expect a room-temperature sponge to function,” he said.

Dena O’Dell, Corps spokeswoman in Anchorage, referred questions about the lawsuit to the U.S. Department of Justice. A spokesman declined to comment.

Zones of permafrost are present in 82 percent of Alaska soils, though in nearly half the state the frozen ground is discontinuous, sporadic or isolated, according to the University of Alaska Fairbanks.

The pipe fabrication company outgrew a site leased from the Alaska Railroad and bought a 455-acre parcel bordered by a junk car dealer, a scrap metal dealer and a concrete supply company, according to the lawsuit. Flowline wanted to use part of the property to store pipe. Its plans called for gravel pads, several buildings and a railroad spur.

The company in 2008 asked the Corps if any of the property was wetland. The Corps declared 351 acres to be wetland, including 200 acres of permafrost. The lawsuit is disputing only the wetland declaration for the 200 acres, Schiff said.

As wetland, the property falls under the federal Clean Water Act, which oversees how fill, such as gravel, can be placed in the “waters of the United States.”

The Corps issued a permit for using the property but required special conditions, including a reclamation pond surrounded by a 23-acre buffer zone.

“Those conditions essentially make the project infeasible, or at least substantially more difficult, for the company to prosecute,” Schiff said.

The lawsuit hinges in part on rules interpretation. Congress in the early 1990s required the Corps to use a 1987 manual for all wetland delineations until the agency adopted a new manual, Schiff said. The Corps, according to the lawsuit, contends an Alaska region supplement supersedes the 1987 manual.

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