Borden Ranch Partnership v. United States Army Corps of Engineers

I respectfully dissent. The crux of this case is that a farmer 1 has plowed deeply to improve his farm property to permit farming of fruit crops that require deep root systems, and are more profitable than grazing or other prior farm use. Farmers have been altering and transforming their crop land from the beginning of our nation, and indeed in colonial times. Although I have no doubt that Congress could have reached and regulated the farming activity challenged, that does not in itself show that Congress so exercised its power. I conclude that the Clean Water Act does not prohibit “deep ripping” in this setting.

I would follow and extend National Mining Association v. U.S. Army Corps of Engineers, 145 F.3d 1399 (D.C.Cir.1998), and hold that the return of soil in place after deep plowing is not a “discharge of a pollutant.” In National Mining, the court held that the Corps exceeded its authority under section 404 of the Clean Water Act by regulating the redeposit of dredged materials that incidentally fall back in the course of dredging operations. The court explained that “the straightforward statutory term ‘addition’ cannot reasonably be said to encompass the situation in which…

This appeal concerns the authority of the U.S. Army Corps of Engineers (“the Corps”) and the Environmental Protection Agency (“EPA”) over a form of agricultural activity called “deep ripping” when it occurs in wetlands. We conclude that the Clean Water Act applies to this activity and affirm the district court’s findings that Borden Ranch violated the Act by deep ripping in protected wetland swales. We reverse the district court’s findings of liability with respect to isolated vernal pools in light of Solid Waste Agency of N. Cook County v. United States Amy Corps of Eng’rs, 531 U.S. 159 , 121 S.Ct. 675 , 148 L.Ed.2d 576 (2001), and remand for a recalculation of the civil penalties.

Facts and Procedural Background

In June of 1993, Angelo Tsakopoulos, a Sacramento real estate developer, purchased Borden Ranch, an 8400 acre ranch located in California’s Central Valley. Pri- or to Tsakopoulos’s purchase, the relevant areas of the ranch had been used primarily as rangeland for cattle grazing. The ranch contains significant hydrological features including vernal pools, swales, and intermittent drainages. Vernal pools are pools that form during the rainy season, but are often dry in…