9th Circuit Extends Federal Law to Farmers of ‘Deep Ripping'
In a 2-1 ruling, a Ninth U.S. Circuit Court of Appeals panel has ruled that federal agencies have the authority under the Clean Water Act to regulate "deep ripping" of wetlands by farmers.
Sacramento developer Angelo K. Tsakopoulos had challenged the authority of the U.S. Army Corps of Engineers and the Environmental Protection Agency to regulate deep ripping on his Borden Ranch, which straddles Sacramento and San Joaquin counties. Deep ripping involves penetrating the restrictive layer of soil with four- to seven-foot long metal prongs that are dragged through the earth. Tsakopoulos intended to convert his 8,400-acre Central Valley ranch into vineyards and orchards and subdivide it into smaller parcels for sale. Deep ripping had to take place in order for vineyards and orchards to grow on the land.
Since 1993, Tsakopoulos and the Corps have disagreed about the authority of the agency to regulate deep ripping in wetlands. Tsakopoulos began deep ripping in fall 1993 without a permit. The following spring, the Corps granted the developer a retroactive permit with conditions. Later in 1994, the Corps approved deep ripping on certain parts of Tsakopoulos's land, but forbade such activity in vernal pools. When the Corps discovered deep ripping had occurred in vernal pools, it immediately issued a cease and desist order. Nevertheless, Tsakopoulos continued deep ripping the wetlands. Finally, in March 1997, EPA investigators witnessed "fully engaged" deep rippers passing over wetlands. The EPA issued an Administrative Order on Consent for Tsakopoulos to resolve his alleged Clean Water Act violations. He in turn filed lawsuit.
Tsakopoulos argued that deep ripping "does not constitute the addition of a pollutant" into wetlands because it is simply churning up soil and redepositing it in the same place. But the appellate court ruled that the argument is inconsistent with prior rulings and held that redeposits of materials can constitute an "additional pollutant" under the Clean Water Act. In his opinion, Judge Michael Daly Hawkins cited three cases, Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir. 1990), United States v. Deaton, 209 F.3d 331 (4th Cir. 2000), and Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (5th Cir. 1983). "[T]hese cases recognize that activities that destroy the ecology of a wetland are not immune from the Clean Water Act merely because they do not involve the introduction of material brought in from somewhere else," Hawkins wrote.
The court ruled that the Clean Water Act gives the Corps the authority to prevent the conversion of wetlands to dry lands. "In this case, Tsakopoulos's activities were not intended simply to substitute one wetland crop for another, rather they radically altered the hydrological regime of the protected wetlands … it was entirely proper for the Corps and the EPA to exercise jurisdiction over Tsakopoulos's activities," Hawkins wrote.
The district court found that Tsakopoulos had committed 358 violations of the Clean Water Act, set the penalty at $1.5 million and allowed Tsakopoulos to avoid $1 million of the penalty if he performed restoration measures. Tsakopoulos challenged the penalty in the appellate court. Based on the U.S. Supreme Court's decision earlier this year in Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (see CP&DR Legal Digest February 2001), the federal government conceded that it lacked jurisdiction over the vernal pools. Accordingly, the Ninth Circuit upheld the lower court's ruling that Tsakopoulos violated the Clean Water Act by deep ripping in protected wetland swales, but it reversed the lower court's findings of Clean Water Act violations in the vernal pools. The Ninth Circuit ordered a limited remand to the lower court for recalculation of the penalty.
In his dissent, Judge Ronald M. Gould wrote that Congress does indeed have the power to regulate deep ripping, but that authority in itself does not imply Congress exercised the power. Gould cited National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998), in which the court ruled that deep ripping does not involve any "significant" removal or addition of material to the site. "Although we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, it is an undue stretch for us, absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity," he wrote.
Gould went further, writing that the district court was mistaken in its finding that the activities of Tsakopoulos required a permit and violated the Clean Water Act. He wrote that the majority opinion "makes new law by concluding that a plow is a point source and that deep ripping includes discharge of pollutants into protected waters."
Borden Ranch Partnership v. United States Army Corps of Engineers, No. 00-15700, 01 C.D.O.S. 7056. Filed August 15, 2001.
For Borden Ranch: Arthur F. Coon and Edmund L. Regalia, Miller, Starr & Regalia, (925) 935-9400.
For the Corps of Engineers: Sylvia Quast, U.S. Department of Justice, Environment and Natural Resources Division, (202) 514-2000.