Tin Cup, LLC v. US Army Corps of Engineers , 904 F.3d 1068 ( 2018 )


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  •                   FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TIN CUP, LLC, an Alaska                 No. 17-35889
    limited liability company,
    Plaintiff-Appellant,         D.C. No.
    4:16-cv-00016-TMB
    v.
    UNITED STATES ARMY CORPS                    OPINION
    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
    2                       TIN CUP V. USACE
    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
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    TIN CUP V. USACE                        3
    law if Congress was clear about its 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.
    4                    TIN CUP V. USACE
    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 guidance manual for delineating wetlands under
    the Clean Water Act. We conclude that it does not, and we
    affirm the district court.
    I
    A
    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. §§ 1362(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
    TIN CUP V. USACE                       5
    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. 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 rule-
    making 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
    6                        TIN CUP V. USACE
    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.
    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”
    1
    Following the parties’ form, we refer to these two paragraphs as the
    “first paragraph” and the “second paragraph,” respectively.
    TIN CUP V. USACE                        7
    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.
    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 green-up,
    growth, and maintenance as an indicator of biological activity
    occurring both above and below ground.”               Alaska
    Supplement at 48.
    B
    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
    8                   TIN CUP V. USACE
    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.
    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
    TIN CUP V. USACE                        9
    2013 a final permit to Tin Cup, subject to the same mitigation
    conditions, and it affirmed that permit in March 2015.
    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.
    II
    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.
    A
    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.
    10                   TIN CUP V. USACE
    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 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.
    TIN CUP V. USACE                         11
    B
    The provision at issue in the 1993 Budget Act does not
    contain a clear statement of futurity. It is 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
    12                  TIN CUP V. USACE
    delineate wetlands in accordance with the 1989 Manual, and
    the 1987 Manual was the only available alternative.
    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,
    TIN CUP V. USACE                        13
    Congress “directed” the 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 viewed as permanent”). The two
    paragraphs here bear a close relationship: they both concern
    14                   TIN CUP V. USACE
    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.
    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
    TIN CUP V. USACE                         15
    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.
    I
    A
    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
    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
    16                  TIN CUP V. USACE
    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 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
    TIN CUP V. USACE                       17
    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.
    B
    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 pad, as well as the
    construction of several buildings and a railroad spur. Thus,
    the project will require the excavation and laying down of
    18                   TIN CUP V. USACE
    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 cross-motions for summary judgment. The
    district court granted The Corps’ motion for summary
    judgment and denied Tin Cup’s motion for summary
    judgment. Tin Cup appealed the district court’s summary
    TIN CUP V. USACE                        19
    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).
    II
    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.
    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.
    20                  TIN CUP V. USACE
    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 Accountability Office, Principles
    of 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
    TIN CUP V. USACE                             21
    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 did
    not intend to command the Corps to take that course of
    action.1
    1
    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,
    22                       TIN CUP V. USACE
    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
    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
    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.
    TIN CUP V. USACE                       23
    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 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.”
    24                     TIN CUP V. USACE
    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 “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.”
    2
    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 non-
    exclusive and the 1987 Manual’s statements regarding flexibility were
    meant to be broader than the list of “problem areas.”
    TIN CUP V. USACE                       25
    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 “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
    26                       TIN CUP V. USACE
    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, “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
    3
    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
    TIN CUP V. USACE                            27
    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.
    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.