Tin Cup, LLC v. Army Corps of Engineers

The Clean Water Act authorizes the U.S. Army Corps of Engineers to issue permits for the discharge of certain pollutants into “navigable waters,” which include at least some wetlands. In the Energy and Water Development Appropriations Act of 1993, Congress mandated that, when delineating wetlands under the Clean Water Act, the Corps “will continue to use the Corps of Engineers 1987 Manual . . . until a final wetlands delineation manual is adopted.” Pub. L. No. 102-377, 106 Stat. 1315, 1324 (1992). For decades, the Corps interpreted this provision as requiring the agency to use the 1987 Manual when delineating wetlands, and one circuit court has agreed. United States v. Bailey, 571 F.3d 791, 803 n.7 (8th Cir. 2009); Brief of Appellee the United States at 42, United States v. Bailey, 2008 WL 4127307 (8th Cir. Aug. 2008). The Corps has not adopted a new manual, yet below the Ninth Circuit held, in a split opinion on the question presented, that the 1993 Appropriation Act’s mandate no longer binds the Corps. To reach that result, the court of appeals panel majority held that the words “will” and “until” in an appropriations act do not bind an agency beyond the applicable fiscal year. The question presented is: Whether Congress’ use of the words “will” and “until” in a provision of the Energy and Water Development Appropriations Act of 1993 that provides “the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual . . . until a final wetlands delineation manual is adopted,” requires the Corps to use the 1987 Manual beyond the pertinent