After receiving a battery of briefs seeking its review, the U.S. Supreme Court has agreed to decide the important issue of whether the Clean Water Act (CWA) regulates the farming practice known as “deep ripping” or “deep plowing.”
A number of farming associations, including the California Farm Bureau Federation and California Cattlemen’s Association, have joined the litigation as interested parties, an indication of how central this issue is to farmers and farming practices.
The appeal to the Supreme Court was brought by Angelo Tsakopoulos, a California rancher and farmer. Tsakopoulos is asking the Court to overturn a Ninth Circuit decision holding that deep ripping his farm in an effort to turn pastureland into farmland for vineyards and orchards falls within the scope of CWA regulation.
The land contains seasonal hydrological features, such as vernal pools and swales, affected by the plowing. The Ninth Circuit held the plowing added a “pollutant” to the wetlands, constituting a regulated “discharge” under the CWA. The circuit court further held the deep plowing did not fall within the “normal farming activity” exemption from the CWA because the change from pastureland to farming “radically altered the hydrological regime of protected wetlands.”
The Ninth Circuit is frequently reversed by the U.S. Supreme Court. By agreeing to hear the case, the Court signals it believes the circuit court may have overstepped its authority.
The U.S. Department of Justice filed briefs opposing Supreme Court review, to which Tsakopoulos responded. Although the Supreme Court has already decided to hear the case, the contents of those briefs are still worth noting, as they indicate the nature of the arguments to come.
Government: Plowing means polluting
The Department of Justice’s arguments on behalf of the Bush administration comport with the key points of the Ninth Circuit’s decision. The administration argues the Ninth Circuit was correct to find deep ripping, in the context of this case, to result in a discharge of a pollutant since the plowing is an activity in which the soil is “wrenched up, moved around, and re-deposited somewhere else.” Such an activity, the DOJ states, results in the “addition” of a pollutant under the CWA.
The DOJ also agrees with the Ninth Circuit’s holding that the addition does not constitute mere incidental fallback or an insignificant amount of re-deposits, which would exempt the activity from regulation. Rather, the deep ripping in this case “constitutes environmental damage sufficient to constitute a regulable deposit.”
Another issue in the case involves whether the plowing practice in question constitutes a “point source” of pollution under the CWA. Arguing that it does, the DOJ notes the bulldozers and tractors that pulled the metal plowing prongs through the earth fall within the Clean Water Act’s definition of a point source, which includes earthmoving equipment.
The administration argues further that the normal farming exemption is inapplicable in this case because the plowing altered the hydrological regime of protected waters. Rather than the simple substitution of one crop for another, which would be a normal farming operation, the plowing here actually changed the landscape such that wetlands were converted to dry lands.
The method of assessing penalties is also an issue in this case. The DOJ and EPA would have penalties assessed per day for each violation; that is, for each pass of the ripper through a wetland. Tsakopoulos would have a penalty apply to each day of violation regardless of the number of passes.
The counter-arguments in Tsakopoulos’s reply brief seeking Supreme Court review are likely indicative of the arguments he will use once the case is fully briefed.
Tsakopoulos challenges the government’s position that “sufficient environmental damage” be used as a test for CWA jurisdiction. The test, Tsakopoulos argues, is simply whether there has been an “addition” of a pollutant. He contends there has been no addition other than unregulated incidental fallback.
Tsakopoulos also objects to the notion that a plow can be a “point source” of pollution. Since plowing itself cannot be a point source, Tsakopoulos states, it makes no sense that tractors pulling plows—not acting like bulldozers—could be point sources.
As for the farming exception, Tsakopoulos’s reply brief warns that “since all farming—and all plowing—changes the land’s hydrology, there is no farming activity that will not come within the Corps’ permitting authority under the government’s interpretation.”
The Bush administration claims to support agriculture, but its position in this case does not seem to support its rhetoric. To date, the policy people at the Department of Justice, Environmental Protection Agency, and Department of Agriculture have expressed no awareness of how a case like this undercuts the President’s pro-agriculture statements.
Gary Baise is an attorney with the Washington, DC-based law firm of Baise and Miller PC.
For more information
The full text of the Ninth Circuit Court of Appeals’ decision in Borden Ranch Partnership; Angelo Tsakopoulos v. United States Army Corps of Engineers; United States Environmental Protection Agency is available through PolicyBot. Request document #9401.