Court Finds Deep Rip Plowing Constitutes Discharge of Pollutant Subject to Clean Water Act Permitting

Henry E. Rodegerdts
hrodegerdts@cfbf.com

In a decision issued in August 2001, the U.S. Court of Appeals for the Ninth Circuit has ruled that moving and redepositing soil in the course of plowing creates a "discharge of a pollutant" that can be subject to Clean Water Act regulation if the activity slips outside of the statute's "normal farming" exemption. Borden Ranch Partnership v. U.S. Corps. of Engineers, 261 F.3d 810 (9th Cir. 2001).

The case concerned land in southern Sacramento County, California, which was being converted from primarily open grazing land to use as vineyards and orchards by a high profile local real estate developer, Angelo Tsakopoulous. Because the land was underlain by a dense layer of soil that prevented surface water from penetrating below it, the land was opened by a plowing procedure known as deep ripping. This practice is used frequently in California to initiate conversion of unirrigated range lands to more intensive irrigated agriculture, often vineyards.

The Ninth Circuit described "deep ripping" as a procedure "in which four- to seven- foot long metal prongs are dragged through the soil behind a tractor or a bulldozer." The court described the ranch as one containing "significant hydrological features including vernal pools, swales, and intermittent drainages." The deep ripping on the ranch commenced in the fall of 1993 without any federal permits. Early visits to the site by both the Corps of Engineers and EPA resulted in the conclusion that holes were being created in the bottoms of jurisdictional wetlands and that the dense soils forming the hydrologic barrier were being disturbed and redistributed.

From the commencement of the operations in the fall of 1993 to the spring of 1997, Tsakopoulous, EPA, and the Corps sparred. During this period, Tsakopoulous continued ripping while the agencies at various times issued a retrospective permit for mitigation, a cease and desist order, a second cease and desist order, an administrative order on consent to resolve the violations, and finally, when the alleged violations continued, an administrative order to cease. During this ongoing dispute, the Corps and EPA issued in December 1996 a regulatory guidance letter that distinguished deep ripping from normal plowing and concluded that deep ripping in wetlands destroys their hydrological integrity. Under this interpretation, the activity loses its exempt status and becomes subject to permitting under the Clean Water Act.

Tsakopoulous filed suit in District Court in the spring of 1997 challenging the authority of the Corps and EPA to regulate deep ripping activity. The government counterclaimed for civil penalties and an injunction against further violations. The district court judge found that Tsakopoulous had "repeatedly violated the Clean Water Act" with 348 separate deep ripping violations in 29 drainages. The court gave Tsakopoulous the option of paying a $1.5 million penalty or a $500,000 penalty plus the restoration of four acres of wetlands. He chose the latter.

Tsakopoulous faired little better before the Ninth Circuit. In a split decision, the court found that deep ripping constitutes the addition of a pollutant to waters (wetlands) because soils are "wrenched up, moved around, and redeposited somewhere else." In addition, the court observed that the Clean Water Act's exemption of "normal farming…and ranching activities, such as plowing" does not apply where the farming activity has as its purpose "bringing an area of the navigable waters into a use to which it was not previously subject." According to the court, "even normal plowing can be regulated" if its purpose is to bring an area into a use to which it was not previously subject. Thus, the deep ripping at issue required a permit because "converting ranch land to orchards and vineyards is clearly bringing the land into a use to which it was not previously subject."

Part of the Tsakopoulous appeal was his objection to the magnitude of the civil penalty. The response from the Ninth Circuit: count your blessings, the statutory maximum by our reckoning is $8,950,000. Each rip is a separate violation. However, the court did reverse the district court on the vernal pool violations in accordance with the recent United States Supreme Court holding in Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001), limiting the ripping violations in this case to those that had occurred in protected wetland swales.

The dissenting judge disagreed with majority's view that the movement of soil during deep ripping constitutes the "discharge of a pollutant" under the statute. According to the dissent, whether or not the hydrological regime has been modified by such activity is not the issue. Rather, removal and redeposit of soil can become a regulated discharge only if material is "moved some distance away and then dropped" so as to become an "addition" or if it is subject to some kind of processing so that its return to the soil profile could constitute an "act of dumping leftover material." The dissent agreed with the majority that otherwise normal farming activities lose their exempt status if their purpose is to transform wetlands to dry land. However, according to the dissent, this does not mean that all farming activities that change the hydrological character of land are regulated - instead there must be an addition of pollutants for a regulated discharge to occur.

The dissent suggests it would be preferable if Congress were to speak more explicitly to these issues. "The alternatives are an agency power too unbounded or judicial law-making, which is worse." But for now, in the dissenter's opinion, a plow should not be considered a point source and deep ripping should not be deemed to constitute a "discharge" of pollutants.

The 1985 case of United States of America v. Akers, 785 F.2d 814, is cited by the majority in reaching its decision. The closing admonition in that case, involving the conversion of 2,889 acres known as the "Big Swamp" in northern California, is worth remembering here: "This litigation resulted from an inability to work cooperatively. Both parties bear some fault for the breakdown in communications. Reasonableness and cooperation are indicated."

These words of advice call to mind the often-heard admonition given in the field to California ranchers and farmers considering a deep plowing program on their property: cooperate unless you have the money to go to the U.S. Supreme Court. Unlike many farmers and ranchers, Angelo Tsakopoulous has that kind of money. The Supreme Court may be exactly where this case is headed.