Borden Ranch Partnership v. United States Army Corps Of Engineers

261 F.3d 810 (2001)

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Nature of the Case

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Facts

Tsakopoulos (P), purchased Borden Ranch which 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 the summer. Swales are sloped wetlands that allow for the movement of aquatic plant and animal life, and that filter water flows and minimize erosion. Intermittent drainages are streams that transport water during and after rains. All of these hydrological features depend upon a dense layer of soil, called a 'restrictive layer' or 'clay pan, 'which prevents surface water from penetrating deeply into the soil. P intended to convert the land into vineyards and orchards and subdivide it into smaller parcels for sale. Vineyards and orchards require deep root systems, much deeper than the restrictive layer in the relevant portions of the Ranch permitted. P would have to destroy the restrictive layer of soil by 'deep ripping.' A ripper gouges through the restrictive layer, disgorging soil that is then dragged behind the ripper. Under the Clean Water Act, an individual seeking to fill protected wetlands must first obtain a permit from D. P and D have disagreed about D's authority to regulate deep ripping in wetlands. P started without a permit and D granted him a retrospective permit in the spring of 1994 when P agreed to various mitigation requirements. D informed P that he could deep rip in uplands and that he could drive over swales with the deep ripper in its uppermost position, but that he could not conduct any deep ripping activity in vernal pools. Upon inspection, D issues a cease and desist order when it discovered that wetlands had been ripped. D entered into an Administrative Order on Consent with P that was intended to resolve his alleged Clean Water Act violations. P set aside a 1368-acre preserve and agreed to refrain from further violations. In March of 1997 D concluded that P had continued to deep rip wetlands without permission. The EPA then issued an Administrative Order to P. P sued challenging the authority of D to regulate deep ripping. The district court ruled that D has jurisdiction over deep ripping in jurisdictional waters. However, the court found disputed facts with respect to whether such deep ripping had actually occurred. At trial, the court determined that P had repeatedly violated the Clean Water Act. P appealed. P contends that deep ripping cannot constitute the 'addition' of a 'pollutant 'into wetlands, because it simply churns up soil that is already there, placing it back basically where it came from.