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“Deep Ripping” in Wetlands Prohibited by the Clean Water Act

Borden Ranch Partnership v. U.S. Army Corps of Eng’rs, 261 F.3d 810 (9th Cir. 2001).

John Treadwell, 3L

In a 2-1 decision, the United States Court of Appeals for the Ninth Circuit held that deep ripping, a process in which metal prongs are dragged by a tractor through the soil so water can drain from the area, falls under the authority of the Clean Water Act (CWA).The court also concluded that the tractors employed during the deep ripping process constitute a point source and that such activity requires a CWA § 404 permit.

Background
In June of 1993, Angelo Tsakapoulos acquired Borden Ranch, an 8,400 acre tract used predominantly for cattle grazing, with the intentions of converting the area into a vineyard and orchard. There are vernal pools, swales and intermittent drainage areas located on the property that depend upon a hard layer of soil called “clay pan” which prevents water from seeping into the ground.1 Because vineyards and orchards require deep root systems, Tsakapoulos had to break up the clay pan using “deep ripping,” a process in which metal prongs are thrust into the soil and dragged away by heavy machinery. In the fall of 1993, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) asserted jurisdiction, informing Tsakapoulos that he could not continue deep ripping activities in these wetland areas without a § 404 permit. Tsakapoulos filed suit challenging the government’s authority to regulate this activity.

Deep Ripping and the Normal Farming Exception
Tsakapoulos maintained that deep ripping is merely another form of plowing and should fall into the CWA’s exemption for normal farming activities. This assertion was summarily rejected. According to the court, the CWA’s “recapture provision” does not exempt any normal farming process, including plowing, that damages water flow. When Congress enacted the CWA, one of its intentions was to “prevent conversion of wetlands to dry lands.”2 As a result, activities that damage a wetland’s normal hydrological functions are not exempt. Relying on evidence that when Tsakapoulos penetrated the clay pan, the water flow was harmed, the district court determined that the EPA and the Corps properly exercised authority over the deep ripping conducted by Tsakapoulos.
The maximum civil penalties for violating the CWA is $25,000 per day for each violation.3 In this case, the district court counted each pass through the wetland slopes as a separate violation. Because this calculated into 348 separate violations, the court could have imposed a maximum penalty of over $8.9 million dollars, however, Tsakapoulos was ordered to pay a $1.5 million dollar fine or a $500,000 fine and if four acres of wetlands were restored.

The Ninth Circuit’s Decision
On appeal, the Ninth Circuit upheld the lower court’s decision as it related to deep ripping in the drainage areas. Tsakapoulos argued that the CWA should not regulate deep ripping because the process does not involve any addition of a pollutant. According to Tsakapoulos, deep ripping only “churns up soil that is already there” and “[places] it back basically where it came from.” The Corps responded that Tsakapoulos added a pollutant when he punched holes in the wetland so the water could drain. The court agreed, noting that activities which damage the ecological integrity of a wetland can be regulated without the discharge of a new material. As a result, the court held that the CWA regulates deep ripping when employed to drain a wetland.

The court also rejected Tsakapoulos’ argument that a plow is not a point source regulated under the CWA. According to the court, the CWA broadly defines a point source as “any discernible, confined, and discreet conveyance.”4 The court reasoned that the statutory definition of a point source was met because tractors and bulldozers were utilized to drag the deep ripping prongs through the soil.

Finally, Tsakapoulos argued that the district court erred by counting each pass through the wetlands with the deep ripper as a separate violation, claiming the maximum penalty should be $25,000 for every day the deep ripper was used. The court rejected his interpretation because the statute clearly provides for a “maximum penalty ‘per day for each violation’ ”5 noting that it would encourage violators to commit all their infractions in one day.

While the court upheld the government’s authority over deep ripping in the drainage areas, citing a recent U.S. Supreme Court case, the court decided that the Corps does not have jurisdiction over isolated, vernal pools.6 Therefore, the district court’s ruling with regard to these isolated wetlands was reversed.

ENDNOTES
1. Borden Ranch Partnership v. U.S. Army Corps of Eng’rs, 261 F.3d 810 (9th Cir. 2001). Vernal pools generally form during the rainy season. However, they usually dry out during the summer. Because swales are essentially sloped wetlands, aquatic plant and wildlife can move freely through the area. These wetlands act as a filter by removing sedimentation from the flowing waters. Swales also assist in curtailing erosion. Intermittent drainages are streams that form so stormwater can be carried away.
2. Borden Ranch Partnership, No. 00-15700 at 10957 (citing United States v. Akers, 785 F. 2d 814, 822 (9th Cir. 1986)).
3. 33 U.S.C. § 1319 (d) (2001).
4. 33 U.S.C. § 1362 (14).
5. Borden Ranch Partnership, No. 00-15700 at 10959. (quoting 33 U.S.C. § 1319 (d)).
6. Solid Waste Agency of Northern Cook Co .v. Army Corps of Engineers, 531 U.S. 139 (2001).

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