Borden Ranch Partnership v. U.S. Army Corps of Engineers

Brief Fact Summary.

Defendant’s asserted limitation on Plaintiff’s deep root system. Defendant asserts that his limitations are proper under the Clean Water Act. Plaintiff files suit, and the United States files a counterclaim, seeking an injunction and civil penalties. The district court finds for the United States, and Plaintiff appeals.

Synopsis of Rule of Law.

The act of ripping up soil in a wetland and, later, depositing the soil back into the wetland is a violation of the Clean Water Act because the act results in a discharge of pollutants.

Facts.

Plaintiff, Angelo Tsakopolous, owned an 8,400 acre ranch in California. Plaintiff tried to convert the ranch into a vineyard and orchard. The conversion would require a deep root system. To implement the deep root system, Plaintiff began a deep ripping process, causing a restrictive layer of soil to be torn up and disgorged by four-to-seven foot long metal prong, which would drag behind a tractor or bulldozer. Defendants, the United States Army Corps of Engineers and the Environmental Protection Agency, tried to place limitations on the deep ripping. Defendants issued a cease and desist order, created an Administrative Order on Consent with Plaintiffs, implemented a regulatory-guidance letter, and, lastly, asserted a Administrative Order to Plaintiff. Defendants’ contend that their legal basis for their actions was protected under the Clean Water Act, which prohibits the discharge of pollutants into the United State’s water. Plaintiff brought suit on the grounds that the Defendants did not have the proper authority to implement their limitations. The United States brought a counterclaim seeking an injunctive relief and civil penalties. The district court sided with the United States, and Plaintiff appealed.

Issue.

Whether ripping up soil in a wetland and later depositing it back into the wetland is a discharge of pollutants under the Clean Water Act.

Held.

Yes, ripping up soil in a wetland and later depositing it back into the wetland is a discharge of pollutants under the Clean Water Act.

Dissent.

The district court’s ruling should be reversed because deep ripping does not add or remove materials to the land. Further, the Clean Water Act does not expressly regulate or refer to such activity.

Discussion.

Generally, removing material from a wetland and, later, depositing it back into the wetland may be a discharge of a pollutant, in violation of the Clean Water Act, as it harms the ecology of the wetland. The Clean Water Act defines the term “discharge” as any pollutant to the wetland at any point source. A point source is defined as any apparent, confined, and concrete conveyance, which courts have previously found may include bulldozers.  Here, the removal of soil from the wetland and the subsequent return of it may constitute a discharge from the point source of the metal prongs attached to the tractor or bulldozer, causing harm to the wetlands. Further, the normal-farming exception to the Clean Water Act does not apply because it is meant for incidental activity in which the wetland was not previously subject to. Therefore, the court agreed with the district court’s holding and affirmed the decision.