Court Affirms Wetlands Fines
Partnership v. United States Army Corps of Engineers,
123 S. Ct. 599 (2002).
Showalter, J.D., M.S.E.L.
The United States
Supreme Court recently affirmed the authority of the Army Corps of Engineers
to require a permit for deep ripping activities. The defendant,
Angelo Tsakopoulos, began deep ripping his ranch in 1993
without a permit. Deep ripping is a farming practice which
uses four- to seven-foot prongs to churn the soil behind the tractor
and prepare the soil for orchards and vineyards. Many of the areas chosen
by Tsakopoulos contained protected swales, sloped wetlands which filter
water and minimize erosion. The Army Corps of Engineers and the EPA
informed Tsakopoulos that he needed a permit to continue, and when he
failed to cease activities, issued an administrative order against him.
Tsakopoulos filed a lawsuit in the United States District Court for
the Eastern District of California challenging the authority of the
Corps and the EPA. Tsakopoulos was fined $500,000 and required to restore
four acres of wetlands.
On appeal, the Ninth Circuit held that the Corps had jurisdiction over
the deep ripping. In order to discharge dredged or fill material into
a wetland, a permit must be obtained from the Army Corps of Engineers.1
ripping, in this situation, redeposited soil into a wetland, resulting
in the addition of a pollutant.2 Tsakopoulos unsuccessfully argued that deep ripping falls within the
farming exceptions, which exempt the discharge of dredged and
fill material from normal farming...activities such as plowing
from Clean Water Act regulations.3 However, if plowing is conducted to bring an area of the navigable
waters into a use to which it was not previously subject, where the
flow or circulation of navigable waters may be impaired, a permit
is required.4 The court found that conversion of ranch land into orchards and vineyards
brought the land into a new use. Since the flow of water on Tsakopoulos
land would be impaired by this conversion, he could not take advantage
of the farming exceptions.
The United States Supreme Court affirmed the decision of the Ninth Circuit
in a 4-4 vote, but refrained from issuing a written opinion. The vote
indicates just how divided the Court is on the extent of Corps
authority under the CWA. A tie resulted because Justice Anthony M. Kennedy
did not participate. Agency jurisdiction under the CWA is a key issue
to watch for on future Supreme Court dockets, as the next vote could
go either way.
1. 33. U.S.C. § 1344(a) (2002).
2. See Rybachek v. U.S. EPA, 904 F.2d 1276 (9th Cir. 1990) (holding
that redeposits of materials can constitute an addition of pollutants).
3. 33. U.S.C. § 1344(f)(1)(A) (2002).
4. 33. U.S.C. § 1344(f)(2) (2002).