Supreme Court Affirms Wetlands Fines

Borden Ranch Partnership v. United States Army Corps of Engineers, 123 S. Ct. 599 (2002).

Stephanie 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 Deep 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.

ENDNOTES
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).