Regulation of Plowing and "Deep Ripping" in Wetlands

David Ivester
Stoel Rives, LLP

Introduction

A new development has complicated matters for those managing agricultural and ranch lands. In considering how best to manage land that includes some wetlands, close attention must be paid to the extent to which the Clean Water Act (CWA) authorizes the Corps of Engineers to regulate farming activities, such as plowing, in wetlands. Landowners, regulators, and courts have long struggled with questions of the scope of the Corps' authority over such activities. This struggle most recently took the form of a split decision by the Ninth Circuit Court of Appeals in Borden Ranch Partnership v. U.S. Army Corps of Engineers, No. 00-15700, 2001 U.S. App. LEXIS 18364 (9th Cir. Aug. 15, 2001). In that case, the majority held that a form a plowing known as "deep ripping" can, in some contexts, be regulated by the Corps under the CWA.

Discussion

The starting point for answering questions of the scope of the Corps' authority is the basic proposition that the CWA regulates only "discharges" of "pollutants" into waters and wetlands. 33 U.S.C. §§ 1319, 1344, 1362. Congress defined "pollutant" to include "dredged spoil . . . rock, sand, [and] cellar dirt" and "discharge of a pollutant" to mean "any addition of any pollutant" to waters or wetlands. 33 U.S.C. § 1362(6) & (12). Congress made the Environmental Protection Agency (EPA) primarily responsible for administering the CWA (see 43 Ops. U.S. Atty. Gen. 15 (1979)), but carved out one exception and gave to the Corps the authority to permit discharges of two particular types of pollutants: "dredged" and "fill materials." 33 U.S.C. § 1342, 1344; 33 C.F.R.
§§ 322.5, 323.6 (2000). In its regulations, the Corps has elaborated that "dredged material" means "material that is excavated or dredged from waters" or wetlands and that the "discharge of dredged material" means "any addition of dredged material" into waters and wetlands. 33 C.F.R. § 323.2(c) & (d) (2000).

The Corps has also acknowledged in its regulations that such a discharge "does not include plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest products (See § 323.4 for the definition of these terms)." 33 C.F.R. §§ 323.2(d) & (f) (2000). "Plowing means all forms of primary tillage, including moldboard, chisel, or wide-blade plowing, discing, harrowing and similar physical means utilized on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops." 33 C.F.R. § 323.4(a)(1)(i)(D) (2000). With the added proviso that such plowing "does not include the redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dry land," the Corps emphasizes that "[p]lowing as described above will never involve a discharge of dredged or fill material." Id. The point of this statement is to clarify that such plowing is entirely outside the scope of the CWA - and to distinguish such plowing from discharges the CWA expressly exempts from regulation. As the Corps explained in Regulatory Guidance Letter No. 86-1:

Plowing for the purpose of producing food, fiber, and forest products and meeting the definition in Section 323.4 will never involve a discharge of dredged or fill material. Such plowing is not subject to any of the provisions of Section 404 including the Section 404(f) exemption limitations. Section 404(f) is applicable to those activities that do involve a discharge but are statutorily exempted from the need to obtain a 404 permit.

Emphasis in original.

Over the years though, the Corps has wavered from this seemingly plain position - so much so that plowing and other farming activities often have been the subject of dispute. In 1993, the Corps and EPA adopted the so-called Tulloch or excavation rule claiming they could regulate any activity in waters or wetlands that (1) results in some movement of soil and (2) destroys or degrades the waters or wetlands. They accomplished this by redefining "discharge of dredged material" to include "[a]ny addition, including any redeposit, of dredged material, including excavated material, into waters of the United States which is incidental to any activity, including mechanized land-clearing, ditching, channelization, or other excavation." 58 Fed. Reg. 45008, 45037 (1993). The Corps has used this rule to argue that the plowing of previously unplowed land constitutes "land-clearing" subject to regulation, rather than agricultural plowing.

Several trade associations challenged the rule, and in National Mining Association v. United States Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998), both the district court and the court of appeals decided that the agencies unlawfully exceeded their statutory authority and enjoined them from applying the rule anywhere in the nation. Noting that Congress defined "discharge" in the CWA as the "addition of any pollutant to navigable waters," the appellate court reasoned that "the straightforward statutory term 'addition' cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back." Id. at 1404. As the court explained, "[b]ecause incidental fallback represents a net withdrawal, not an addition, of material, it cannot be a discharge." Id. Acknowledging that some forms of "redeposits" of dredged material, as distinguished from "incidental fallback," might reasonably be regulated under the CWA, the court observed that the agencies' excavation rule, however, "makes no effort to draw such a line." Id. at 1405. Indeed, "its overriding purpose appears to be to expand the Corps's permitting authority to encompass incidental fallback and, as a result, a wide range of activities that cannot remotely be said to 'add' anything to the waters of the United States." Id.

To comply with this ruling, the agencies made two changes in 1999, (1) deleting the word "any" as a modifier of "redeposit" and (2) expressly excluding "incidental fallback" from the definition of "discharge of dredged material." 64 Fed. Reg. 25120 (1999). The regulation thus referred to "redeposit other than incidental fallback." In other respects, the "excavation rule" was left intact. The trade associations objected that this revision failed to conform to the National Mining Association ruling, but the court disagreed explaining that the revision made clear that the agencies were not to regulate incidental fallback. The court cautioned the agencies, though, against parsing the language of the earlier court decisions to render an overly narrow definition of incidental fallback.

Earlier this year, the agencies again revised their regulations regarding excavation. They described certain types of activities they believe are likely to result in discharges subject to regulation:

The Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific activity shows that the activity results in only incidental fallback.

33 C.F.R. § 323.2(d)(2), 40 C.F.R. § 232.2(2); 66 Fed. Reg. 4550, 4575 (2001). Responding to objections that their earlier proposal of a "rebuttable presumption" would improperly shift the burden of proof to landowners to prove a negative, the agencies took pains to deny any such intent:

This [provision] does not and is not intended to shift any burden in any administrative or judicial proceeding under the CWA.

Id. They also described their understanding of incidental fallback:

Incidental fallback is the redeposit of small volumes of dredged material that is incidental to excavation activity in waters of the United States when such material falls back to substantially the same place as the initial removal. Examples of incidental fallback include soil that is disturbed when dirt is shoveled and the back-spill that comes off a bucket when such small volume of soil or dirt falls into substantially the same place from which it was initially removed.

Id., emphasis in original.

The agencies acknowledged that the foregoing provisions state their "expectation," not a prescriptive rule. Inasmuch as the agencies also disavow any intent to shift the burden of proof, presumably they will retain the burden of proving any alleged discharge in administrative and judicial enforcement proceedings. What, if any, effect the agencies' published expectation would have in that regard is unclear. The point of the agencies' "rule" apparently is to put others on notice of their views in the hope that they will conform their activities accordingly. As the agencies put it:

We believe today's rule both ensures environmental protection consistent with CWA authorities and increases regulatory certainty in a manner fully consistent with [National Mining Association]. This has been accomplished through regulatory language that serves to put agency staff and the regulated community on notice that absent information to the contrary, it is our expectation that the use of mechanized earth moving equipment to conduct landclearing, ditching, channelization, in-stream mining, or other mechanized excavation activity in waters of the U.S. is likely to result in discharges of dredged material.

Id. at 4553.

The latest wrinkle is Borden Ranch Partnership v. U.S. Army Corps of Engineers, No. 00-15700, 2001 U.S. App. LEXIS 18364 (9th Cir. Aug. 15, 2001), in which a divided court of appeals affirmed a district court holding that "deep ripping" in the context of the case was subject to the Corps' jurisdiction. In that case, a landowner sought to convert ranchland into vineyards and orchards. Owing to a dense layer of soil, called a "restrictive layer" or "clay pan," which prevented surface water from penetrating deeply into the soil, small wetlands, characterized as vernal pools and swales, appeared here and there on the ranchland. Because the restrictive layer also impeded the growth of vineyards and orchards, the landowner undertook to penetrate it by deep ripping, a procedure in which four- to seven-feet long metal prongs are dragged through the soil behind a tractor or bulldozer. After repeated disputes with the Corps and EPA, the landowner sued, challenging the agencies' authority to regulate deep ripping, and the agencies counterclaimed, seeking civil penalties. The district court ruled in favor of the government and imposed a $1.5 million penalty.

On appeal, the Ninth Circuit affirmed. The landowner argued that deep ripping does not cause the "addition" of a "pollutant" into wetlands because it merely churns up soil that is already there, placing it basically where it came from. The court rejected this view as inconsistent with two earlier court rulings. In one, Rybachek v. U.S. E.P.A., 904 F.2d 1276 (9th Cir. 1990), the court rejected a claim that placer mining activities were exempt from the CWA, holding that removing material from a stream bed, sifting out the gold, and returning the material to the stream bed was an "addition" of a "pollutant." In the other, United States v. Deaton, 209 F.3d 331 (4th Cir. 2000), the court rejected a landowner's claim that excavating and sidecasting soil in order to dig a ditch does not constitute the addition of a pollutant. The Borden court found the Deaton court's reasoning worthy of quoting at length:

Contrary to what the Deatons suggest, the statute does not prohibit the addition of material; it prohibits the "addition of any pollutant." The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here. . . . Once [earth and vegetable matter] was removed [from the wetland], that material became "dredged spoil," a statutory pollutant and a type of material that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before.

Borden at *7, emphasis in original.

The court brushed aside National Mining Association v. United States Army Corps of Engineers, 145 F.3d 1399 (D.C. Cir. 1998). In that case, too, the government had argued that dirt, once excavated, becomes a pollutant that, if returned to the place from which it came, constitutes the addition of a pollutant. Finding this argument "ingenious but unconvincing," the National Mining court had concluded that "[r]egardless of any legal metamorphosis that may occur at the moment of dredging, we fail to see how there can be an addition of dredged material when there is no addition of material." Id. at 1404, emphasis in original. The Borden court found this unpersuasive, explaining: "That case distinguished 'regulable redeposits' from 'incidental fallback.' [Citation.] Here, the deep ripping does not involve mere incidental fallback, but constitutes environmental damage sufficient to constitute a regulable redeposit." Borden at *8 n.2.

The court seems to have been swayed by its perception that deep ripping resulted in environmental degradation. As the court put it, the two cases on which it relied "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." Id. at *8. In the end, the court concluded: "We can see no meaningful distinction between [deep ripping] and the activities at issue in Rybachek and Deaton. We therefore conclude that deep ripping, when undertaken in the context at issue here, can constitute a discharge of a pollutant under the Clean Water Act." Id.

Judge Gould wrote in dissent that he "would follow and extend" National Mining and hold that the return of soil in place after deep plowing is not a discharge of a pollutant. Pointing to the concurring opinion in National Mining, he noted that "'the word addition carries both a temporal and geographic ambiguity. If the material that would otherwise fall back were moved some distance away and then dropped, it very well might constitute an "addition." Or if it were held for some time and then dropped back in the same spot, it might also constitute an "addition." National Mining, 145 F.3d at 1410 (Silberman, J., concurring).'" Borden Ranch at *14 (Gould, J., dissenting). He distinguished Rybachek "[b]ecause deep ripping does not move any material to a substantially different geographic location and does not process such material for any period of time." Id. Likewise, he found Deaton inapposite because deep plowing "is not the same as dredging dirt from and redepositing it in waters." Id.

Borden Ranch petitioned the Ninth Circuit for a rehearing, which was denied. It plans to seek review in the U.S. Supreme Court. Given the split decision in Borden Ranch and the apparent split between the Borden Ranch majority and the D.C. Circuit, which decided National Mining, there is reason to believe that the Supreme Court may decide to hear the case.

Conclusion

For those considering whether to deep plow their land, the foregoing state of affairs offers little clear guidance. While Borden Ranch is the latest word in the Ninth Circuit, which includes all of California, the continued vitality of that opinion remains in doubt until all avenues of review have been completed. To the extent that Borden Ranch remains controlling, it appears to characterize deep plowing as a regulable discharge only in some "contexts," such as those presented in that case. The contours of those contexts are not readily apparent, so it may take some time to sort out when under the decision deep plowing is regulated and when it is not.