Reproduced with permission from Daily Environment Report, No. 238, p. A-10 (Dec. 11,2002). Copyright 2002 by The Bureau of National Affairs, Inc. (800-372-1033)
Wetlands Deep Ripping Not a Regulated Discharge, Rancher's Attorney Tells U.S. Supreme Court
By Susan Bruninga and John H. Stam
Oral arguments before the U.S. Supreme Court Dec. 10 on whether a deep plowing technique violated the Clean Water Act focused extensively on whether the process caused a regulable discharge requiring a permit
(Borden Ranch Partnership v. U.S. Army Corps of Engineers, U.S., 01-1243, oral arguments 12/10/02).
Angelo Tsakopoulos, a California rancher, used the technique known as "deep ripping" to plant orchards on a portion of his 8,000-acre ranch. Deep ripping involves dragging long metal shanks through the ground to break it up and to make it suitable for planting. The U.S. Army Corps of Engineers argued that this process required a permit under Section 404 of the Clean Water Act because the shanks were dragged across several wetlands and caused material to be redeposited or discharged.
Timothy Bishop, of Mayer, Brown, Roe, & Maw in Chicago who represented Tsakopoulos, argued that a plow is not a point source and that the act of deep ripping alone can not add pollutants to a wetland. As a result, no Clean Water Act permit would be required for the activity, he said.
The Ninth Circuit held that deep ripping constitutes the regulated discharge of dredged material and is not subject to a farming exemption in the Clean Water Act. The appeals court also upheld civil penalties against Tsakopoulos for each violation of deep ripping wetlands without a permit (Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810, 52 ERC 2025 (9th Cir. 2001); 161 DEN A-4, 08/21/01 ).
Kennedy Recused Himself
Justice Anthony Kennedy recused himself because he is an acquaintance of Tsakopoulos. One observer who supports greater protections for wetlands said that could be the key to the case because the court could reach a 4-4 decision, which would uphold the appeals court ruling.
One environmental advocate attending the hearing said she felt like "we won."
However, an industry attorney said that could not be discerned. Several industry attorneys said they were impressed by the "balanced" arguments, making it difficult to guess how the court would rule.
Geographical, Temporal Separation
Bishop said there must be a geographical or temporal separation between dredging and deposit for material to be considered dredge spoil, a regulated pollutant, citing National Mining Ass'n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 46 ERC 1769 (D.C. Cir. 1998).
That decision overturned the so-called Tulloch rule, in which "incidental fallback" was classified as a discharge requiring a permit. In the case of deep ripping, Bishop said, there is no dredging; there is only the cutting of soil and the incidental movement of soil a short distance as the plow punches into the ground and is dragged through the earth.
Justice Stephen Breyer said this argument seemed to imply that if Tsakopoulos moved "only a little dirt and punched only small holes, this did not violate the act. So your argument is if you only violate the act a little you are not in violation of the act."
Tsakopoulos only altered the wetlands by punching a hole through the clay pan under the wetlands, Bishop argued. The disturbed soil from deep ripping does not fall under a plain reading of either the definition of dredge material or of fill material, he said.
Justice Antonin Scalia noted, however, that the broad statutory definition of pollutants includes even rock and sand. Bishop said that was true but irrelevant. The district court only found, Bishop said, that Tsakopoulos discharged dredge and fill material without a permit under Section 404(a) of the act, not the general discharge of pollutants requiring permits under Section 402.
Plow as Point Source Argued
Bishop also argued that a plow is not a point source under the act. Justice Ruth Bader Ginsburg stated that under the statutory definition, backhoes and bulldozers are listed as examples of point sources and asked why deep ripping plows should not be considered point sources as well.
Bishop responded that the statutory definition states that point sources are discernible, confined, discrete conveyances with some specific examples. Bishop argued that plows are not confined conveyances.
Scalia agreed stating that a conveyance is designed to move material and a plow is not intended to move material.
Justice David H. Souter, however, stated that regardless of intent, that is the effect of a plow.
Bishop stated that while soil from deep ripping does get pushed to the side, a point source is defined as a confined conveyance.
Scalia asked Bishop why there needs to be an exemption for normal farming activities such as plowing if it is not a point source that discharges pollutants.
Bishop responded that there does not need to be an exemption. The exemption does not change the definitions of point sources, discharges or additions of pollutants, he said. The exemption also covers other nondredge and fill activities such as seeding, he noted. The exemption, he said, was passed by Congress in the 1970's in response to statements by the U.S. Army Corps of Engineers asserting jurisdiction to regulate farming activities. The exemption was not needed, but made explicit that the corps could not regulate farms he said.
"As one report at the time said, they were staking the vampire twice," Bishop said.
Bishop also argued that one of the purposes of the act was to support state power to regulate and farming is a traditional area of state and local, as opposed to federal, regulation.
Exemption Does Not Apply
Jeffrey P. Minear, the Justice Department attorney arguing the case on behalf of the Corps of Engineers, said the deep ripping action should not qualify for the "normal farming exemption" allowed under the act because it was not an ongoing farming activity. Rather, it was intended to convert wetlands into farmland, an action Clean Water Act regulations were specifically designed to protect against, Minear said. The exemption, he said, was not intended to apply to actions "involved with converting wetlands to dry land."
He pointed out that the wetlands on Tsakopoulos' property represented less than 1 percent of the total acreage.
Justice Sandra Day O'Connor pressed Minear on why the deep ripping plow, which is actually a large bulldozer that pulls the shanks through the soil, is a point source, defined by the act as a confined, discreet conveyance.
Congress recognized that a plow is a point source, Minear said. "That's why it created the normal farming exemption."
However, he said, even if plowing normally falls under the exemption, the deep ripping in this case falls under the recapture provision. The recapture provision applies if there is a change in use of properties and impacts upon waters of the United States. Here the deep ripping punched holes in the clay pan changing the hydrological nature of the wetlands and reducing the waters of the United States, he said.
Minear said the equipment moves the soil vertically and from side-to-side. In the process, it is dragging or conveying dirt, sand, and other materials described in the act as pollutants from one place to another.
Purpose of Deep Ripping
Minear said the requirement for a Section 404 permit authorizing dredge and fill activities stems from the fact that dredging "by nature is moving material from one area of a wetland to another."
Scalia said Minear appeared to be arguing that the purpose of the deep ripping was to move material, "but that's not what it was designed to do."
Copyright © 2002 by The Bureau of National Affairs, Inc., Washington D.C.
Minear responded that the purpose of the action was not what mattered. "It's what happens" that matters, he said. Specifically, dirt is being moved from one point to another and, therefore, constitutes an addition of material requiring a permit, Minear said.
Breyer kept carrying the arguments a step further for clarification. For example, he posed the hypothetical question about whether the boots of someone who walks through poison and then walks in some water and poisons the fish would be a point source.
De Minimus Activities
Minear said the Environmental Protection Agency has determined that certain activities such as walking or biking that have "de minimus effects" and would not be covered. But Breyer pushed him, saying the boots are not normally considered a conveyance but in this case they convey a pollutant.
"Any number of things could subsidiarily convey," Breyer said.
Minear granted him that point, but said the case at hand did not involve de minimis activities, but rather large amounts of wetlands.
Minear then took a different tack in arguing that pollutants were added. He said that during the deep ripping, the shanks "punched" through the clay "pan" or lining beneath the compacted soil. This clay pan prevented the water from percolating through and created the wetland. The material beneath the clay pan was pulled out during the plowing and put into the wetland.
Scalia, who did not seem sympathetic to Minear's argument, said the government "wants to take anything" and to call it an addition.
"How far down does the wetland go?" he asked.
Minear said it varied, but that in this case the clay pan represented the bottom of the wetland and that by going beneath it, the plowing was adding a pollutant to the protected area.
Even if there were not an addition, the redeposit of existing material, Minear said, still could cause environmental harm. For example, arsenic and other metals that collect at the bottom of a wetland could be brought to the top. The action also could have the effect of taking the material and physically changing it from aerobic to anaerobic. The Clean Water Act, he said, intended for the addition of material to include the redeposit.
However, Bishop said, that argument was struck down by the U.S. Court of Appeals for the District of Columbia Circuit, which said such "incidental fallback" was not considered a discharge in National Mining Association v. Corps of Engineers.
"It's unlikely that Congress would regulate dredged material and exclude the most common form," Minear said, referring to his contention that dredging involves the redeposit of material taken from another part of a U.S. water.
Breyer said that if the justices were to agree that material from beneath the wetland is an addition, what action should they take?
Minear urged the justices to affirm the appeals court ruling on that basis. A reassessment of the penalty, he said, would not be necessary.
Court Urged to Uphold Penalties
Minear also asked the court to uphold the $500,000 penalty, a reduction from the $1.5 million initially assessed because the district court held that each pass of the equipment constituted a violation.
"It's quite clear the law applies to every violation every day," he said.
After the argument, Bishop told BNA he was very pleased with how the argument went.
"Scalia seemed to like the conveyance and addition arguments and I have high hopes for O'Connor, " Bishop said.
The addition of the pollutant issue raised in the Deaton case, he said, is readily distinguishable because the material in that case was dredge spoil while the court could find that deep ripping does not involve dredge or fill material
(United States v. Deaton, 209 F.3d 33, 50 ERC 14591 (4th Cir. 2000); 71 DEN A-1, 04/12/00 ).
Deaton held that the act of transforming previously nonpollutant soil from a wetland into dredge spoil constitutes the addition of a pollutant requiring a permit under the act.