                  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.
