# Petition for Writ of Certiorari — Borden Ranch Partnership v. United States Army Corps of Engineers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 536 U.S. 981 ## Text No. 0 Supe Cour u = | FiLes in The 941243 FEB 22 2003 Supreme Court of the Usted States S BORDEN RANCH PARTNERSHIP; ANGELO K. TSAKOPOULOS, Petitioners, UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondents. ¢ On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit ¢ PETITION FOR A WRIT OF CERTIORARI S Timotny S. BisHop Mayer, Brown, Rowe & Maw 190 South LaSalle Street Chicago, IL 60603 (312) 782-0600 EDMUND L. REGALIA Miter, STARR & REGALIA A Professional Law Corporation 1331 N. California Blvd. Fifth Floor Post Office Box 8177 Walnut Creek, CA 94596 (925) 935-9400 ARTHUR F. Coon ‘Counsel of Record Miter, STARR & REGALIA A Professional Law Corporation 1331 N. California Blvd. Fifth Floor Post Office Box 8177 Walnut Creek, CA 94596 (925) 935-9400 Counsel for Petitioner \ QUESTIONS PRESENTED The issue presented by this case is whether a farmer needs a federal permit to plow his agriculturally-zoned ranchland to plant new crops. Section 404 of the Clean Water Act authorizes the Army Corps of Engineers to require permits only for those activities that “discharge” or “add” a “pollutant” from a “point source” into waters of the United States, and further expressly exempts “nor- mal farming and ranching activities, such as plowing,” which do not convert the body of water “into a use to which it was not previously subject.” Petitioners acquired the Borden Ranch, an 8,400 acre property in California’s Central Valley that is zoned for agricultural use, and sought to enhance portions of the land that previously had been used to grow forage crops for higher value vineyards and orchards. Petitioners did this by deep plowing to prepare the soil for these deep-rooted crops. The Army Corps asserted jurisdiction under Section 404 of the Clean Water Act over these plowing activities, claiming petitioners were discharging pollutants into sea- sonal wetlands. The Ninth Circuit upheld this assertion of federal jurisdiction, over Judge Gould’s dissent. and in conflict with the D.C. Circuit’s National Mining decision. The questions presented are: l. Does a rancher’s deep plowing to enhance the soil’s agricultural viability “add” a “pollutant” to a wetland so as to constitute a regulated point-source “discharge” within the meaning of Section 404 of the Clean Water Act? ii QUESTIONS PRESENTED - Continued 2. Is deep plowing of ranchland, which is used to grow forage crops and is farmable in its natural state, in order to plant crops with deeper root systems, statutorily exempt from regulation under Section 404 as a “normal farming activ- ity” that does not bring a water of the United States “into a use to which it was not previously subject”? 3. Does the Clean Water Act's civil penalty section, authorizing penalties “not to exceed $25,000 per day for each violation,” authorize assessing the maximum daily penalty for each time a plow crosses a jurisdictional drainage feature, without regard to the number of days when such activity occurred? ili TABLE OF CONTENTS Page QUESTIONS PRESENTED .............ccsccccecees i TABLE OF AUTHORITIES ..............cceceeeeees Vv TS + ccnesesedeeseeesncecesntoces: 1 EE bcd Ebb sdeSedénadedescddccdetcenecs 1 STATUTORY PROVISIONS INVOLVED............. 1 PEE, bo b0biee he cbuedocews see ccdeccedossocess 2 A. The Statutory and Regulatory Scheme ........ 5 1. Basic Elements of Section 404 Jurisdiction ... 5 2. The CWA’s Farmer Exemptions ............ 7 3. The Penalty Provision ..................4:- 8 B. Petitioners’ Plowing Activities On Borden Ranch and the Corps’ Assertion of Jurisdiction ....... 9 C. Petitioners’ To The Corps’ Jurisdiction Over Plowing And District Court’s Ruling... 11 D. The Ninth Circuit’s Decision .................. 13 REASONS FOR GRANTING THE PETITION ....... 15 I. THE CIRCUITS ARE SPLIT OVER THE CORPS’ AUTHORITY TO REGULATE “INCIDENTAL FALLBACK” AS A POINT SOURCE DIS- CHARGE OF POLLUTANTS UNDER THE CWA Il. THE NINTH CIRCUIT ERRED IN HOLDING PLOWS ARE “POINT SOURCES” ............. 20 iv TABLE OF CONTENTS - Continued Page Ill. THE NINTH CIRCUIT ERRED IN HOLDING THAT PLOWING RANCHLAND TO PLANT CROPS IS A “CHANGE IN USE” NEGATING THE CWA’S INTENDED BROAD EXEMPTION OF PLOWING AS A “NORMAL FARMING RETEUEEE cccedccuseccccececcccccecececeesees IV. THE NINTH CIRCUIT ERRED IN CALCULAT- ING THE CIVIL PENALTY BY CALCULATING EACH PASS OF THE PLOW THROUGH WATERS, RATHER THAN EACH DAY OF PLOWING, AS A SEPARATE VIOLATION UNIT “ee enennenenvnneeneeneneeeneneeneneeeeeneenereeeenereeeeeeeeeeeeeee 21 Vv TABLE OF AUTHORITIES Page Cases Angelo K. Tsakopoulos v. American Manufacturers Mutual Insurance Co., et al. (U.S. Dist. Ct. E.D. Cal.), Civ. No. S-99-0853 GEB Pc cnecesacecoceccceséédeesbedesNawedenvedecveces 1 Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128 (11th Cir. 1990).................. 28, 29 Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d fhe See 14, 21, 22, 23, 24 Bay Foundation v. Gwaltney of Smithfield, 791 F2d 304 (4th Cir. 1986)...............0005. 28, 29 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Se eee GEF Gee coverncccccressnnccesncoccsecss 27 Downer v. U.S. By And Through Dept. of Agriculture, 894 F.Supp. 1348 (D.S.D. 1995) ..........,....0eee. 23 Harrison v. Northern Trust Co., Be Ce GO GD cnccecc ccc ccdéteeccdudbececdeses 7 Hawaii's Thousand Friends v. City and County of Honolulu, 821 FSupp. 1368 (D. Haw. 1993)............... 28, 29 Hess v. Port Auth. Trans-Hudson Corp., SED TBS GRIPE 0 cer ccccicesccccccvess bGGabevcee 26 In re Carsten, , 211 B.R. 719 (Bkrtcy. D. Mont. 1997) ............ 7, 22 vi TABLE OF AUTHORITIES - Continued Page National Mining Ass'n. v. U.S. Army Corps of at on 145 F.3d 1399 (D.C. Cir. 1998).............055. passim Resource Invs. v. U.S. Army Corps of Eng’rs., 151 F.3d 1162 (9th Cir. 1998).............0cceues 6, 19 Rybachek v. United States EPA, 904 F.2d 1276 (9th Cir. 1990)......... 3, 13, 14, 17, 18 Solid Waste Agency of Northern Cook County v. U.S. yp Ag of Eng’rs. (“SWANCC”), Se GD MED co cccdeccncsocescesces 6, 16, 26, 27 Tidewater Oil Co. v. United States, ! SF Ce BS QE cc cedd tice cot scdcvedededecsesées 8 United States v. Akers, 785 F.2d 814 (9th Cir. 1986)................ 23, 25, 26 United States v. Amoco Oil Co., 580 F.Supp. 1042 (W.D. Mo. 1984)................. 29 United States v. Bass, Se See GE ED ccvemsarecnccocconncnduencseaes 27 United States v. Deaton, 209 F.3d 331 (4th Cir. 2000)................. 3, 13, 14 U.S. v. Riverside Bayview Homes, Inc., Ge ee Se Ge etnns scare come pages cccndsuseene 6 United States v. Wilson, fF 3s 8 4: Be eer 7 Clean Water Act Section 404 (33 U.S.C. § 1344) ................ passim vii TABLE OF AUTHORITIES - Continued Page 1985 Food Security Act ...........ccccceceeeeeeneees 23 BD Wes B TOE ve cccccciccccccccccccésoccsessetuve 1 SD WEG, Boss ee ccc b tec cicdeccvccvoeess 5, 20, 26 i) 0 Fr rerrrrrrr Try 1, 5 PD OBE. OBIE. inks ccc ciiswtedevcccssces 1, 8, 9, 28 BD DB © Tec cccccccdcccesetesscvcevecceesees 5, 26 a Te | PPE EPPPTTTITISTTTTT TTT Tee passim 33 U.S.C. § 1344(f)(1)(2) ... 2... cece cece eee eeees passim 33 U.S.C. § 1362(6), (12), (14), and (16).......... passim 33 C.F.R. Section 323.2(d)(1), (iii), (2)(i) (ii), (3)(iii), (4)(iii) . . . . . 2 BED GEER ceececcdesevceveccedonescccescceces 25 Section 323.4(a)(1)(i), (ii), (i#i)(D) ............6--006- 2 40 C.F.R. Section 232.3(c)(1)(i)Aii) and (d)(4) ............2-05- 2 Section 232.4(4)(idi) ... 0... 6. cece cece cece ee ee ences 1 OrHER AUTHORITIES Vol. 3, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 (1978) (hereafter “1977 LEG. HIST.”) at 645 (Senate Report on S. & | + eer rrr rrr rrr rT rrr 24 4 1977 LEG. HIST. at pp. 919-920......... eencepeces 25 4 1977 LEG. HIST. at pp. 924, 181, 289, 351, 524... 24 Viii TABLE OF AUTHORITIES - Continued Page AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, NEW COLLEGE ED. Se aC a conn s cb bisdiccoddebinecdescciecc 23 BLACK’S LAW DICTIONARY (5th ed. 1979), p. EEE LES ETRE LE EN Ee ae in 23 S. - No. 95-370, at 76 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4401 ..... fe otagebtdedeceess 2, 20 WEBSTER’S DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (Encycl. ed. 1977)..... 5 1 PETITION FOR A WRIT OF CERTIORARI Petitioners Borden Ranch Partnership and Angelo K. Tsakopoulos respectfully petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit. OPINIONS BELOW The court of appeals’ opinion (App., infra, 1-22) is reported at 261 F.3d 810. The district court’s opinion on summary judgment (App., infra, 28-56) is unreported. Its decision after the counterclaim trial (App., infra, 67-121) is unofficially reported at 1999 WL 1797329. The district court’s summary judgment opinion in a related action, Angelo K. Tsakopoulos v. American Manufacturers Mutual Insurance Co., et al. (U.S. Dist. Ct. E.D. Cal.), Civ. No. S-99-0853 GEB JFM (Hon. Garland E. Burrell, Jr.) (App., infra, 135-164) is unreported. The U.S. Army Corps of Engineers’ (“Corps”) December 12, 1996 Regulatory Guidance Letter setting forth the basis for its regulation of petitioners’ deep plowing is set out at App., infra, 199-207. JURISDICTION The court of appeals’ opinion was filed August 15, 2001. On November 28, 2001, the court of appeals issued its Order denying petitioners’ petition for rehearing en banc. On December 18, 2001, the court of appeals issued its Order granting petitioners’ motion to stay the man- date pending filing of this petition. Jurisdiction of this Court is invoked under 28 U.S.C. Section 1254(1). STATUTORY PROVISIONS INVOLVED The relevant provisions of the Clean Water Act, 33 U.S.C. Sections 1311(a), 1319(d), 1344(a), (f), 1362(6), (12), (14), and (16), are reproduced at App., infra, 209-213. The relevant regulations, 40 C.F.R. Section 232.4(4)(iii), 40 “- C.F.R. Section 232.3(c)(1)(i)(ii) and (d)(4), and 33 C.FR. Section 323.2(d)(1), (iii), (2)(i),{ii), (3)(iii), (4)(iii) and 33 U.S.C. Section 323.4(2)(:)(i), (ii), (iii)(D), are reproduced at App., infra, 213-218. STATEMENT The fundamental issue in this case is whether a farmer and rancher may deeply plow his agriculturally- zoned ranchland to plant higher value crops without need of a federal permit or, conversely, whether the Corps has jurisdiction to regulate such traditional plow- ing activity under the Federal Clean Water Act (“CWA” or “Act”). The Corps asserts such jurisdiction in this case and others, contending that the traditional farming activ- ity of plowing alone of dry ground in areas of seasonal wetlands constitutes the “discharge” of “pollutants” (native soil) from a “point source” (the plow) which is regulated under CWA Section 404. The Corps’ expansive claim of federal permitting jurisdiction over traditionally local activities - such as farming and plowing - under CWA Section 404! has resulted in conflict among the courts of appeals as to the statute’s reach. The D.C. Circuit has held “incidental fallback” of native materials from a dredge bucket during aquatic dredging operations is not an “addition” of pollu- tants and thus not a “discharge” of dredged or fill mate- rial regulated under Section 404, because no materials are added and the disturbed native materials fall back to their same general location. National Mining Ass'n. v. U.S. Army Corps of Eng’rs., 145 F.3d 1399, 1404 (D.C. Cir. 1998). 1 33 U.S.C. § 1344, see App., infra, 210-211. Congress did not intend CWA Section 404 to extend to normal farming activities, which it contemplated would be “controlled by State and local agencies under (the Act’s non-point source provisions].” S. Rep. gigs, at 76 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 3 It further held the CWA farmer exemptions for plowing and other normal farming activities evince that Congress “emphatically did not want the law to impede these bucolic pursuits.” Id. at 1405. The Ninth Circuit, by contrast in its 2-1 decision here (Judge Gould, dissenting), holds deep plowing - which also adds no materials and results in plowed native soil falling back to its same general location - produces a “regulable redeposit” of the plowed soil “pollutant” because it “constitutes environmental damage sufficient to constitute a regulable redeposit.” App., infra, 8. Over the strong dissent of Judge Gould, who would have fol- lowed National Mining and held “the return of soil in place after deep plowing is not a ‘discharge of a pollu- tant[,]’” App., infra, 18, the panel majority relied on the Ninth Circuit’s prior decision holding redeposits of extracted and processed materials from in stream placer mining operations are regulated, and a Fourth Circuit decision (citing the same Ninth Circuit decision) holding “sidecasting” from backhoe dredging to drain wetlands for residential subdivision construction was regulated. Rybachek v. United States EPA, 904 F.2d 1276, 1285 (9th Cir. 1990); United States v. Deaton, 209 F.3d 331, 333-336 (4th Cir. 2000). App., infra, 6-8. Despite the express statutory exemption for any “dis- charges” from “normal farming . . . and ranching activ- ities such as plowing . . . for the production of food, fiber... ,” App., infra, 210, the Ninth Circuit also holds the “recapture” exception to the exemption applies because “[c]onverting ranch land to orchards and vine- yards is clearly bringing the land ‘into a use to which it was not previously subject[.]’” App., infra, 10; see App., infra, 211. The Ninth Circuit’s decision is legally erroneous and inconsistent with the CWA’s plain language and legisla- tive history, as well as authorized implementing regula- tions. Plowing alone does not “add” pollutants or soil 4 and does not produce regulated point source “dis- charges.” No statute or regulation states plowing is a CWA-regulated activity. Moreover, the relevant statutes and regulations expressly exempt all forms of plowing from Section 404 regulation as required by Section 404(f)(1)’s “farmer exemptions.” App., infra, 210; see App., infra, 212 (exempting agricultural runoff from point source pro- gram). No other case has ever invoked the facially-nar- row “recapture provision” to hold plowing alone - as opposed to plowing conducted incidental to and as a minor part of other activities primarily intended to fill and dry out waters or wetlands - is a CWA-regulated activity. No other case has held plows used only for normal farming purposes are “point sources.” Dissenting from the Ninth Circuit panel majority’s complete evis- ceration of the Act’s fundamental jurisdictional require- ments and farmer exemptions, Judge Gould would have held return of soil in place after deep plowing is not a “discharge,” because “deep ripping” does not involve any significant removal or “addition” of material to the site, and plows are not “point sources.” App., infra, 19-22. He observed the majority was making new law in upholding federal regulation under Section 404’s point source program of a traditional farming activity without any clear or express Congressional authorization of that result. App., infra, 22. Given (1) the split among circuits on whether “inci- dental fallback” is a regulated “discharge,” (2) the stat- utorily untenable basis of the Corps’ position that it may regulate any form of mere plowing of agricultural land as a point-source discharge, (3) the nationwide importance of agriculture and (4) the nationwide importance of effec- tuating Congress’ intent to meaningfully exempt farming activities from Section 404, this Court’s review of the legality of the Corps’s assertion of federal permitting jurisdiction over normal farming activities in this case is appropriate and necessary at this time. Congress did not 5 intend to federalize regulation of traditionally local land use matters when it adopted the CWA. It did not intend or envision when it enacted the CWA and its “farmer exemp- tions” that a farmer plowing dry, agriculturally-zoned ranchland to plant higher value crops — a normal activity farmers have engaged in since colonial times, App., infra, 18 — would require a federal permit for the “discharge” of “pollutants” from a “point source” to do so. A. The Statutory and Regulatory Scheme 1. Basic Elements of Section 404 Jurisdiction CWA Section 404 authorizes the Corps to directly regulate and issue federal permits “for the discharge of dredged or fill material into the navigable waters at speci- fied disposal sites.” 33 U.S.C., § 1344(a); App., infra, 210. Section 301(a) provides that the “discharge of any pollu- tant by any person” is unlawful unless in compliance with the Act’s permit requirements. § 1311(a); App., infra, 209. “Discharge” is defined as “any addition of any pollutant to navigable waters from any point source.” § 1362(16), (12); App., infra, 212; National Mining, supra, 145 F.3d at 1401.? As a prerequisite to the existence of a regulated point source “discharge,” the statute’s plain text requires an “addition” of a “pollutant.” To “add” is “to join or unite (to) so as to increase the number, size, quantity, etc.” WEBSTER’S DICTIONARY OF THE ENGLISH LAN- GUAGE UNABRIDGED (Encycl. ed. 1977). The courts below treated plowed native soil as both a “pollutant” and “fill material,” and plows themselves as 2 CWA Sections 208 and 319 direct the States to take certain steps to address nori-point source pollution, but the States determine the nature of those steps. See 33 U.S.C. §§ 1288, 1329. Farming and ranching activities are explicitly contemplated to fall within the non-point source area subject to State and local control. E.g., 33 U.S.C. §§ 1288(b)(2)(F), 1362(14). 6 regulated “point sources.” “Pollutants” within the Act include, inter alia, “dredged spoil, . . . rock, sand, cellar dirt . . . and agricultural waste discharged into water.” § 1362(6); App., infra, 211. “Fill material” has been held to mean material used for the “primary purpose” of replac- ing an aquatic area with dry land or changing the bottom elevation of a water body. Resource Invs. v. U.S. Army Corps of Eng’rs., 151 F.3d 1162, 1168 (9th Cir. 1998); National Mining, supra, at 145 F.3d at 1402, fn. 1. A “point source” is defined as “any discernible, confined and dis- crete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, con- tainer, rolling stock, concentrated animal feeding opera- tion, or vessel or other floating craft, from which pollutants are or may be discharged... . ” § 1362(14); App., infra, 212, emph. added. The relevant “navigable waters” or “waters of the United States” on the semi-arid Borden Ranch are widely dispersed seasonal drainage swales and intermittent drainages — shallow linear features ranging from several inches to several feet wide, and up to several hundred feet long - which exist and carry stormwater runoff for brief periods only during and after seasonal rains, and which ultimately drain to intermittent streams, which themselves ultimately flow to tributaries of navigable waters. App., infra, 2; ER1011-12.3 “Navigable waters” under the Act include wetlands adjacent to rivers, streams and more conventionally identifiable “waters”, National Mining, supra, 145 F.3d at 1401, citing U.S. v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-32 & n. 8 (1985), but not isolated intrastate waters. Solid Waste Agency of North- ern Cook County v. U.S. Army Corps of Eng’rs. 3 As cited herein, “ER” is the “Excerpts of Record” from the Ninth Circuit’s proceedings, “CR” is the Court Record, taken from the district court’s Docketing Sheet, and “TE” is a district court Trial Exhibit. 7 (“SWANCC”), 531 U.S. 159, 167-174 (2001); United States v. Wilson, 133 F.3d 251, 257 (4th Cir. 1997). The Corps defines wetlands as areas “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circum- stances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” National Mining, supra, 145 F.3d at 1401-1402. 2. The CWA’s Farmer Exemptions In 1977, Congress amended Section 404, adding “farmer exemptions” to clarify “that certain discharges, such as those associated with farming, silviculture, and ranching activities, are not prohibited or otherwise sub- ject to regulation under § 404.” In re Carsten, 211 B.R. 719, 731 (Bkrtcy. D. Mont. 1997). As amended, Section 404 exempts any “discharge”: (A) from normal farming, silviculture, and ranch- ' ing activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation practices;. . . . 33 U.S.C. § 1344(f)(1)(A); App., infra, 210, emph. added. Section 1344(f)(2)’s textually narrow “recapture” exception to these “farmer exemptions” requires a permit for: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the naviga- ble waters into a use to which it was not previously subject, where the flow or circulation of naviga- ble waters may be impaired or the reach of such waters be reduced... . § 1344(f)(2); App., infra, 211, emph. added. The legislative history of the 1977 CWA mn farmer exemptions” must be used to determine Congress’ intent and provide context. Harrison v. Northern Trust Co., 317 8 U.S. 476, 479 (1943); Tidewater Oil Co. v. United States, 409 U.S. 151, 157 (1972). The CWA farmer exemptions evince Congress “emphatically did not want the law to impede these bucolic pursuits.” National Mining, supra, 145 F.3d at 1405. The EPA and Army Corps expressly interpret the CWA to exempt plowing ranchland to plant crops in their regulations defining “plowing” as: ... all forms of primary tillage, including mold- board, chisel, or wide-blade plowing, disking, harrowing, and similar physical means utilized on farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to prepare it for the planting of crops. . . . Plowing, as described above, will never involve a discharge of dredged or fill material. App., infra, 216; see id. at 218. 3. The Penalty Provision As applied here, 33 U.S.C. Section 1319(d), App., infra, 209, authorizes civil penalties “not to exceed $25,000 per day for each violation” for discharging pollu- tants without a permit. * * * Petitioners challenge the Corps’ assertion of federal permitting jurisdiction over the plowing of ranchland to plant crops in this case as in violation of CWA Section 404’s jurisdictional limitations requiring a “discharge” of “pollutants” from a “point source,” as well as its express exemption for “normal farming . . . and ranching activ- ities such as plowing.” Should this Court determine the Corps has Section 404 jurisdiction over plowing ranch- land which is farmable in its natural state to plant crops, Petitioners challenge the lower courts’ imposition of the maximum $25,000 penalty for each time a plow crossed a seasonal drainage feature, without regard to the number 9 of days on which such activity occurred, as violating Section 1319(d). B. Petitioners’ Plowing Activities On Borden Ranch and the Corps’ Assertion of Jurisdiction The 8,400-acre Borden Ranch is all agriculturally- zoned, Central Valley land, in both Sacramento and San Joaquin Counties, and is bisected by Dry Creek, the County Line. Presently owned by Borden Ranch Partner- ship (“BRP”) (Tsakopoulos is managing partner and title holder) and its vendees, the Ranch has historically been used for cattle grazing, irrigated pasture, and growing wheat, hay, alfalfa, and row crops. Since late 1993, por- tions have been deep plowed and planted to vineyards and orchards. The Ranch contains seasonal hydroiogical features such as vernal pools, and swales and intermittent drainages (both hereinafter “drainages”). ER101i-12; App., infra, 2-3. The Corps asserted CWA jurisdiction over the Ranch’s drainages and vernal pools as “navigable waters” and contended that deep plowing, also ey as . ripping” or “d slip plowing,” rangeland in Pua tn. a Sd Per An. dredged or fill material and requires a Section 404 permit. CR189, ER1013-1015; App., infra, 3. Despite the Act and regulations, which exempt all ‘orms of plowing, the Corps and EPA first distinguished deep plowing from shallower plowing. The Corps con- tended plowing in seasonal wetlands to “root zone depth,” including disking, is not regulated but that deep plowing is. The Corps and EPA contended deep plowing would adversely affect “navigable waters” by puncturing restrictive subsurface soil layers believed integral to their inundation and functioning. TE30, ER13-15, he TE31, App. infra, 2-3. Relying on the Corps’ oral and written ices abenunied tried to plow in ways the Corps told him would not require CWA permits. CR204, ER921:8-16. 10 The Corps sought guidance from EPA in 1994 as to whether the CWA’s farmer exemptions applied to Tsakopoulos’ deep plowing. TE2., ER7. EPA confirmed the Corps’ jurisdiction, and the Corps in late 1994 again distinguished deep plowing (prohibited without a per- mit) from shallow plowing at root zone depth, which it conceded was au‘t ~ized under the exemptions without a permit and wiuc. sone Corps regulator testified was 18 to 24 inches into the soil. TE30, ER13, CR204, ER910:18 - 911:2. Tsakopoulos authorized further plowing under the Corps’ guidance until the winter rainy season, when it is not possible to plow once the ground becomes wet. CR204, ER909:3-6, CR226, ER981-983. In 1995, Corps and Federal Natural Resources Con- servation Service (“NRCS”) officials met at the Ranch to discuss Tsakopoulos’ plowing plans. NRCS advised deep- ripping through drainages had no hydrological impact and was a good farm management practice. CR204, ER915:11-20. The Corps continued to assert jurisdiction over deep plowing, but told Tsakopoulos orally and in writing he could deep rip uplands and cross areas delin- eated as “waters/wetlands” with the deep plow provided he raised the shank as high as possible even though it would still drag across and cut into the ground to some extent. TE31, ER20, TE558, ER16; see App., infra, 3. Tsakopoulos attempted to comply in authorizing addi- tional 1995 plowing in Sacramento County. CR204, ER921:8-16. The Corps and EPA later claimed noncom- pliance and issued a November 1995 cease and desist order. App., infra, 3; TE50, ER30. Without conceding wrongdoing, Tsakopoulos settled the alleged 1995 plow- ing violations by dedicating a 1418-acre seasonal wet- lands preserve (with 1368 contiguous acres) in May 1996. App., infra, 3-4, 165, 176; TE66, ER33, TE592, ER65. In September 1996, Corps and EPA officials provided guidance for 1996 plowing on the Ranch’s San Joaquin side, and reconfirmed that without a permit Tsakopoulos 11 uld “d low” uplands and cross drainages with the ane Pow coed CR204, ER922-926. Tsakopoulos again attempted to comply in 1996 plowing, TE617, ER, TE615, ER88, CR227, ER994-995, CR226, ER984-987, which plowing ended before December 1996. TE78, 80, 83, 85, 88, ER90, 97, 133, 148, 158. Pibidotods The Corps’ first official public guidance distinguish- ing “deep ripping” from other plowing was a December 12, 1996 Regulatory Guidance Letter (“RGL : ). App., infra, 4, 199-207. The RGL came only after dedication of the preserve and after all plowing operations later found to be CWA violations had already occurred, App., infra, 103; CR189, ER1043:12-15; TE78, 80, 83, 85, 88; ER90, 97, 133, 148, 158, see CR204, ER909. After the 1996-1997 rainy season, BRP resumed plow- ing (disking) in San Joaquin, and almost immediately EPA representatives unaware of the September 1996 guid- ance descended on the site, saw shallow furrows through some drainages (from raised deep plow shanks in 1996 plowing), and claimed some vernal pools were clipped. CR226, ER970:17-973:23; App., infra, 4. Ignoring concerns expressed by EPA’s Washington headquarters that deep plowing might not produce jurisdictional discharges in light of the D.C. district court's then-recent American Mining decision (affirmed on appeal in 1998 as National Mining), TE630, ER309, EPA Region 9 took an aggressive enforcement position and issued an April 1997 cease and desist order stopping all Ranch activity involving machinery crossing drainages. TE103, ER313; App., infra, 4. C. Petitioners’ Challenge To The Corps’ Jurisdiction Over Plowing And The District Court’s Ruling Petitioners filed their Complaint May 6, 1997, for declaratory relief and to challenge Government regula- tions and the RGL. CR1, ER328. On August 6, the Govern- ment answered and counterclaimed alleging CWA 12 violations by “filling waters of the United States” on four Borden Ranch San Joaquin County parcels. CR7, ER385; App., infra, 4. By August 3, 1998 order, App., infra, 28-56, the district court denied Tsakopoulos’ summary judg- ment motion, and partially granted and denied the Gov- ernment’s motion, leaving for trial the Counterclaim issues concerning alleged CWA violations. CR74, ER500-526; App., infra, 4-5. At the bench trial, from August 24 through September 16, 1999, App., infra, 5, the U.S. claimed Tsakopoulos’ deep plowing in San Joaquin deposited “fill” into jurisdictional “waters” including drainages and pools. Tsakopoulos disputed these claims and contended he had followed the Government’s wee by oe the ri shank to uppermost position when crossing drain- an anmnen only in concededly unregulated shallow plowing. He also contended the six tiny pools allegedly filled were not jurisdictional “waters” within the Govern- ment’s Comrnerce Clause power to regulate, since they were wholly isolated and not hydrologically connected to navigable waters, and were not actual migratory bird or endangered species habitat. On November 8, 1999, the district court entered its 50-page Findings of Fact and Conclusions of Law, App., infra, 67-121, finding 348 separate deep plowing viola- tions in 29 widely dispersed drainages (aggregating “about 2 acres” in total area) and 10 violations in a single 150 square foot vernal pool - the only one of six pools it found to be a jurisdictional water. App., infra, 5, 91, 98, 103, 105, 109; ER1030-1032. Despite Tsakopoulos’ acknowledged efforts to follow the Corps’ guidance, App., infra, 143-144, and the tiny area of alleged viola- tions in comparison to the size of the Ranch area plowed and the area of wetlands/waters wholly avoided, Arp., infra, 105, 109, the court imposed a $1.5 million civil penalty. App., infra, 5, 118. On February 10, 2000, the court denied without hearing Tsakopoulos’ Motion for 13 More Specific Findings as to the actual depth of the plowing violations it had found. App., infra, 5, 122-126. On March 3, 2000, final judgment was entered. App., infra, 127-134. Petitioners timely appealed on March 28, 2000. App., infra, 5; CR220, ER1092. D. The Ninth Circuit's Decision The Ninth Circuit affirmed the district court's deci- sion in most respects in a 2-1 panel decision, the majority holding, over Judge Gould’s dissent, that Petitioners’ deep plowing of historical ranchland is regulated under CWA Section 404, App., infra, 210, which governs “dis- charges” of “pollutants,” including “dredged or fill mate- rial,” from “point sources” into “navigable waters.” App., infra, 6-8. The panel majority reasoned this case was like Rybachek v. United States EPA, 904 F.2d 1276 (9th Cir. 1990), which held placer mining, i.e., extracting raw mate- rials from a stream, processing them to remove gold, and later returning the mining overburden to the stream at a distance from the origina! location, constituted “addi- tion” of a “pollutant” and hence a Section 404 “dis- charge.” It also relied on United States v. Deaton, 209 F.3d 331 (4th Cir. 2000), which held “sidecasting” materials from the digging with a backhoe of a 1240-foot drainage ditch to drain wetlands for the purpose of residential subdivision construction produced a regulated “discharge.” App., infra, 6-8. It rejected Petitioners’ argument that purely deep plowing to prepare land for new crops is wholly unlike those unrelated activities and even less like an “addition” of pollutants than the “incidental fallback” the D.C. Circuit in National Mining, supra, 145 F.3d 1399 held unregulated under Section 404. It distinguished National Mining in cursory fashion in a footnote, stating that deep plowing “does not involve mere incidental fallback, but constitutes environmental damage sufficient to constitute a regulable redeposit.” App., infra, 8, fn. 2. 14 Rejecting Petitioners’ argument that plows are not “discernible, confined and discrete conveyance[s]” so as to constitute “point sources” under 33 U.S.C. Section 1326(14), the Ninth Circuit relied on a Fifth Circuit case holding “bulldozers and backhoes” can constitute “point sources” where they are not merely plowing to plant crops but performing earthmoving, excavation and ditching activities with engaged blades and shovels to dry out water bodies. App., infra, 8-9; see Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 901, 920-921, 926-927 (5th Cir. 1983). The court reached this conclusion notwith- standing the undisputed fact that the bulldozers and tractors (not backhoes) pulling deep plows on Borden Ranch were not engaged in any such grading, excavation or ditching, and were simply performing a normal farm- ing operation by using their motive power to drag normal farming implements - deep plow shanks - through soil to prepare it for the planting of deeper rooted crops. App., infra, 2-3. The Ninth Circuit also rejected Petitioners’ argument that even if deep plowing could somehow constitute a “point source” “discharge” it was exempt from regulation (and not recaptured) under the CWA’s farmer exemptions for “normal farming . . . and ranching activities such as plowing|.]” App., infra, 210; National Mining, supra, 145 F.3d at 1405; see App., infra, 9-10. Finally, in affirming the $1.5 million civil penalty, the Ninth Circuit panel m. jority ignored conflicting authority from the Fourth and Eleventh Circuit courts, and a pub- lished Ninth Circuit district court decision, in interpret- ing 33 U.S.C. Section 1319, App., infra, 209, to allow assessment of the maximum daily penalty for each time a plow shank crossed a drainage without regard to the number of days on which the activity occurred. App., infra, 13-16. Dissenting Judge Gould found Rybachek and Deaton readily distinguishable and would have held plows are 15 not “point sources,” App., infra, 22, and “that the return of soil in place after deep plowing” does not produce a regulated “discharge” under National Mining, supra, 145 F.3d 1399, App., infra, 18, because “deep ripping does not involve any significant removal or ‘addition’ of material to the site.” App., infra, 19; see App., infra, 18-22. He would have held the “farmer exemptions” applicable to “deep plowing” even assuming, arguendo, that it pro- duced regulated “discharges.” App., infra, 21. Judge Gould stated the “crux of this case is that a farmer has plowed deeply to improve his farm property to permit farming of fruit crops ... more profitable than grazing” and tnat farmers have engaged in such agricultural pur- suits “from the beginning of our nation, and indeed in colonial times.” App., infra, 18. In Judge Gould’s view, the majority acted without clear or express Congressional direction, and beyond Congress’ intent under the CWA, in prohibiting “a traditional form of farming activity.” App., infra, 20, 22. Judge Gould states the majority opin- ion “makes new law by concluding that a plow is a point source and that deep ripping includes discharge of pollu- tants into protected waters,” and concludes that “the judicial determination that a deep plowing technique constitutes a pollution of navigable waters, with no prior adequate guidance from Congress, goes beyond mere statutory interpretation.” According to Judge Gould, the majority's holding rests on “an agency power too unbounded or judicial law making, which is worse.” App., infra, 22. REASONS FOR GRANTING THE PETITION This Court should grant review because the circuits are split over the fundamental jurisdictional reach of CWA Section 404 as it pertains to “incidental fallback,” and because the Ninth Circuit’s decision erroneously interprets several key elements of the statute resulting in expansive, intrusive and overreaching Federal regulatory 16 jurisdiction over normal farming activities, such as plow- ing, which Congress emphatically never intended to regulate at all under the CWA. National Mining, supra, 145 F.3d at 1405. As underscored by Judge Gould’s dissent, App., infra, 18-22, the majority’s decision ignores Congressional intent, eviscerates the Act’s jurisdictional requirements and farmer exemptions, and substantially alters “the fed- eral-state framework by permitting federal encroachment upon a traditional state power” SWANCC, supra, 531 U.S. at 173-174 , namely, the traditional state and local govern- ment authority to regulate the use of land for farming and agricultural activities. I. THE CIRCUITS ARE SPLIT OVER THE CORPS’ AUTHORITY TO REGULATE “INCIDENTAL FALL- BACK” AS A POINT SOURCE DISCHARGE OF POLLUTANTS UNDER THE CWA “Section 404(a) grants the Corps authority to issue permits ‘for the discharge of dredged or fill material into the navigable waters at specified disposal sites.’ ” SWANCC, supra, 531 U.S. at 163; App., infra, 210. “Dis- charge” is defined as “any addition of any pollutant tc navigable waters from any point source.” National Min- ing, supra, 145 F.3d at 1401; App., infra, 212. The issue whether “redeposit” of native materials removed from and then returned to jurisdictional waters in “substan- tially the same spot” — referred to as “fallback” or “inci- dental fallback”, National Mining, supra, 145 F.3d at 1401, 1403 - is a regulated “discharge” has produced disagree- ments among the courts of appeals. The Fourth Circuit in National Mining invalidated the Corps’ and EPA’s so-called “Tulloch Rule,” purporting to regulate any redeposit from any excavation activities, and held: (1) “the straightforward statutory term ‘addition’ cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back,” 17 National Mining, supra, 145 F.3d at 1404; and (2) such “incidental fallback” (which occurs when material is dredged from a water, and some of it falls back off the dredge bucket into the same general location) is not an “addition” and thus not a regulated “discharge.” Id. at 1403. National Mining distinguished Rybachek v. EPA, 904 F.2d 1276 (9th Cir. 1990) - which it found was “the strongest authority for the agencies’ position,” National Mining, supra, 145 F.3d at 1406 — as involving a regulable discharge which was the “discrete act of dumping left- over material into the stream after it had been processed” rather than the “incidental fallback of dirt and gravel” to its original location. Id., at 1406. The statute’s use of the word “addition,” as well as the phrase “specified dis- posal sites,” shows “that Congress had in mind either a temporal or geographic separation between excavation and disposal which simply does not fit incidental fall- back.” Id., at 1410, Silberman, J., concurring. The Ninth Circuit gave short shrift to National Min- ing, rejecting it in a three-sentence footnote and following Rybachek, supra, 904 F.2d 1276 (9th Cir. 1990), which held placer mining operations extracting, processing and redepositing raw materials in a stream at considerable distance from the original location, constituted “addi- tion” of a “pollutant.” App., infra, 6. While Rybachek held return of extracted, processed mining overburden was addition of pollutants even though the overburden origi- nated from the riverbed, the regulable “discharge” or “addition” was the discrete act of dumping the leftover material into the stream after it had been extracted, collected and processed. App., infra, 6; Rybachek, supra, 904 F.2d at 1285. The majority purports to follow Rybachek in holding the instantaneous turning in place by a plow of unex- tracted, uncollected and unprocessed native soil consti- tutes “addition” of a pollutant. App., infra, 8. This is, as Judge Gould stated in dissent, “incremental judicial rea- soning” by which the majority extends Rybachek - and 18 Section 404 - to an entirely different context where it is simply inapposite. App., infra, 22. The Ninth Circuit’s rejection of National Mining was mistaken. Contrary to the majority’s reasoning in its foot- note attempting to distinguish National Mining, the dis- tinction between “regulable redeposit” and unregulated “incidental fallback” depends on the existence of the jurisdictional prerequisite of an addition of material, not upon whether the involved activity supposedly “consti- tutes environmental damage sufficient to constitute a reg- ulable redeposit.” Compare App., infra, 8, fn. 2 with National Mining, supra, 145 F.3d at 1402-1403. Nowhere does the Ninth Circuit cite CWA or other authority for a standard it apparently created of whole cloth. Unlike regulated “point source” discharges, plowing does not extract, hold, collect or remove native materials such that “redeposit” could occur. Even “incidental fall- back” could not occur from any significant distance. Plows cut through, break up and turn soil in place while adding nothing and redepositing nothing from any collecting bucket, container, shovel, blade or other “confined” or “discrete conveyance” designed to hold or redistribute material. As Judge Gould stated, “[bJecause deep ripping does not move any material to a substantially different geographic location and does not process such material for any period of time, Rybachek is not controlling.” App., infra, 20. Judge Gould recognized National Mining could not be distinguished and should control because plowing produces, at most, “incidental fallback” of native soil which cannot be held to be a “discharge.” He also recog- nized plows are not “point sources.” App., infra, 22. It is supremely ironic and significant that the Corps and EPA themselves argued in National Mining that plow- ing, among other exempt farming activities, produced noth- ing more than “incidental fallback” in an effort to convince the D.C. Court of Appeals in that case that such fallback was regulated; the agencies reasoned that Congress must 19 have considered the “incidental fallback” from these activities to be a regulated “discharge” or it would not have needed to include an exemption in the Act. National Mining, supra, 145 F.3d at 1405. In response to this argu- ment, the National Mining Court stated: We find the exemptions far less telling. Some of the named activities - plowing, ditch mainte- nance, and the like - may produce fallback, but they may also produce actual discharges, i.e., addition of pollutants, so that § 404(f) accom- plishes a useful purpose simply by exempting them insofar as they produce the latter. . . . [W]e are reluctant to draw any inference other than that Congress emphatically did not want the law to impede these bucolic pursuits. National Mining, supra, 145 F.3d at 1405. The Ninth Circuit’s decision also conflicts with appli- cable Corps regulations, as interpreted by National Mining and its own previous decision, in holding native soil turned in place by a plow constitutes “fill” material, because the “primary purpose” of plowing is to enhance and revitalize farming soil, “not to replace an aquatic area with dry land or to change the bottom elevation of a water body[.]” See Resource Invs., supra, 151 F.3d at 1168 (9th Cir. 1998) (holding solid waste landfill leak detection and collection system placed in wetlands were not “fill material” under “primary purpose” test); National Min- ing, supra, 145 F.3d at 1401, fn. 1 (noting “primary pur- pose” requirement for defining “fill material”). Had petitioners’ plowing occurred in the D.C. Cir- cuit, the result in this case would have been different - under National Mining deep plowing would not be held a “discharg2” subject to Section 404’s permit requirements. In the Ninth Circuit, under Borden Ranch, it is. These issues are of national significance and fundamental importance to the farming, ranching and mining indus- tries, as underscored by amici briefs and participation of 20 California Farm Bureau Federation, California Cattle- men’s Association, California Mining Association and Pacific Legal Foundation, in support of Petitioners below and on appeal. The existence of Federal CWA Section 404 jurisdiction over “incidental fallback” from normal farm- ing activities, such as plowing, should not depend on the happenstance of a farm’s or ranch’s location. Farmers and ranchers throughout the nation are entitled to equal treat- ment under the CWA, and the need for national unifor- mity is particularly great because farming activity completely unregulated in one jurisdiction could result in a multi-million dollar fines — or even criminal liability — if conducted in another. This case’s exceptional importance warrants the granting of certiorari. Il. THE NINTH CIRCUIT ERRED IN HOLDING PLOWS ARE “POINT SOURCES” An essential element of CWA Section 404 permitting jurisdiction is that the “pollutant” be “discharged” or “added” by a “point source,” defined as “any discernible, confined and discrete conveyance.” App., infra, 212. Reg- ulation of potential sources of non-point source pollution is generally left to the States. E.g., 33 U.S.C. § 1288(b)(2)(F); see S. Rep. No. 95-370, at 76 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4401 (normal farm- ing activities to be regulated as non-point sources by State and local agencies). A plow is not a “point source,” i.e., a “confined and discrete conveyance,” since it is neither “confined” nor a “container,” nor does it function as a “conveyance” of pollutants/materials from one loca- tion to another. No prior case has ever held a plow is a “point source.” The Ninth Circuit’s reliance on a Fifth Circuit case finding “bulldozers and backhoes” can constitute “point sources” is misplaced since there the bulldozers and backhoes were not used for merely plowing (by pulling plow shanks) but for entirely different purposes and 21 activities including performing earthmoving, excavation and ditching functions with engaged blades and shovels. Avoyelles Sportsmen's League, Inc. v. Marsh, supra, 715 F.2d at 901, 920-921, 926-927. In Avoyelles, the owner of a 20,000-acre tract leveled the property, cut down timber and vegetation with bulldozers with shearing blades, pushed, burned, raked and disked all these materials into the land’s low spots to raise and level it, and further dug a drainage ditch, for the express purpose of filling and drying out a swampy Louisiana flood plain so that it could thereafter be farmed for soybeans. Id., at passim, 926. The bulldozers and tractors (not backhoes) pulling deep plows on the semi-arid Borden Ranch were indis- putably not engaged in any such grading, excavation or ditching, and were simply using their motive power to drag normal farming implements - deep plow shanks - through the soil to break it up, and turn it in place, i.e., to plow. Neither Avoyelles nor any other reported decision, until Borden Ranch, holds that plowing alone produces a “point source” discharge. The issue is critical to the nation’s farmers and not limited to deep plowing, as the agencies are now going beyond even their own unauthorized December 12, 1996 RGL and attempting to regulate even the shallowest forms of plowing - including disking - under the authority of the Borden Ranch decision. See, e.g., App., infra, 41, 48 (district court summary judgment order finds both deep ripping and disking are regulated). III. THE NINTH CIRCUIT ERRED IN HOLDING THAT PLOWING RANCHLAND TO PLANT CROPS IS A “CHANGE IN USE” NEGATING THE CWA’S INTENDED BROAD EXEMPTION OF PLOWING AS A “NORMAL FARMING ACTIVITY” It is wholly unnecessary to reach the issue of inter- pretation of the CWA’s farmer exemptions if the Court 22 concludes that deep plowing produces no regulated point source “discharge” so as to fall under the Corps’ CWA Section 404 permitting jurisdiction. Congress’ 1977 CWA amendments were intended to prevent regulatory over- reaching and make clear that no permit is required in any event for any alleged “discharge,” i.e., “addition” of a pollutant: (A) from normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or upland soil and water conservation prac- tices;. ... App., infra, 210. Congress provided a narrow “recapture” provision removing from the exemption: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the naviga- ble waters into a use to which it was not previ- ously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced. App., infra, 211, emph. added. This exception is not concerned with any “discharges” from the isolated activ- ity of plowing productive farm or ranchland in its natural state, or with changes in agricultural use, such as from pasture and forage crop to orchard/vineyard crop. Rather, it addresses intentional conversion of unproductive wetlands to drylands on a significant scale to enable normal farming activities which could not otherwise occur. In re Carsten, supra, 211 B.R. at 735. Thus, where activities are done for the primary pur- pose of draining and drying out significant water bodies to convert them to farmable uplands - i.e., the Avoyelles situation -— the exemption cannot be claimed on the grounds that otherwise unregulated farming activities, 23 such as plowing, are later performed “incidental to,” i.e., as a “minor concomitant,” AMERICAN HERITAGE DIC- TIONARY OF THE ENGLISH LANGUAGE, NEW COL- LEGE ED. (1975), p. 665, of the primary conversion project. This reasonable interpretation is compelled by the plain language of the “farmer exemptions”, Congress’ clear intent to meaningfully exempt normal farming activities from onerous federal regulation under the CWA’s “point source” program, the lawful agency regula- tions expressly exempting all forms of plowing, and related statutes.* The Ninth Circuit relied on the “recapture” provision as interpreted by Avoyelles, supra, 715 F.2d at 925, and another Ninth Circuit decision, United States v. Akers, 785 F.2d 814, 820 (9th Cir. 1986), to hold petitioners’ deep plowing to plant vineyards and orchards was not exempt and was “recaptured” because it supposedly “radically altered the hydrological regime of protected wetlands.” App., infra, 10. The Ninth Circuit confused the normal activity of converting from one agricultural crop to another with that of converting waters to uplands, and erroneously reasoned, that “[cjonverting ranch land to 4 For example, Congress subsequently enacted “Swampbuster” in the 1985 Food Security Act (“FSA”). Under the FSA “there will be liability for conversion of a wetland if it is manipulated ‘for the purpose or to have the effect of’ making the land farmable.” Downer v. U.S. By And Through Dept. of Agriculture, 894 F.Supp. 1348, 1356 (D.S.D. 1995), emph. added, aff’d 97 F.3d 999 (8th Cir.). Statutes in pari materia are construed together. BLACK’S LAW DICTIONARY (5th ed. 1979), p. 711. “Wetlands” subject to being farmed by use of “normal cropping or ranching practices” (i.e., plowing) as a result of their “natural condition” (e.g., drought or, as here, regular dryness in a semi-arid region throughout the long growing season) are not deemed converted (i.e., brought into a use to which they were not already subject) when so farmed. Merely plowing (without more) thus triggers neither FSA farm subsidy ineligibility under “Swampbuster” nor CWA Section 404’s recapture provision. 24 orchards and vineyards is clearly bringing the land into a use to which it was not previously subject . . . ” Id. at 815. If this were true, then any change in agricultural crop or practice could subject plowing to federal regulation, and CWA Section 404’s exemption for plowing ranchland to plant crops, App., infra, 218, would be rendered meaning- less. Indeed, under the Ninth Circuit’s interpretation, Section 404(f)(1) is a mere “grandfather” clause which would not apply at all to plowing historically ranched land for the first time either to improve the forage or to plant non-forage crops. The CWA’s legislative history refutes this crabbed interpretation of the “farmer exemp- tions” and shows Congress never intended to regulate mere plowing at all under the CWA. Senator Muskie, a primary CWA sponsor, Avoyelles, supra, 715 F.2d at 915, explained “the bill [adding farmer exemptions] tries to free from the threat of regulation those kinds of man made activities which are sufficiently de minimis as to merit general attention at the state and local level and little or no attention at the national level.” Vol. 3, A LEGISLATIVE HISTORY OF THE CLEAN WATER ACT OF 1977 (1978) (hereafter “1977 LEG. HIST.”) at 645 (CR36, ER489) (Senate Report on S. 1952, 95th Cong.); see also id. (Vol. 4) at 924 (ER 492) (Domenici comments); 181 (ER482) (President’s comments); 289, 351, 524 (ER481, 483, 487) (Stafford comments). Where, as here, plowing is a permitted farming activity under locally-enacted agricultural zoning and other State and local regulations, Congress intended the federal govern- ment to have no role under the CWA. During the December 15, 1977 Senate debate, Senator Muskie recognized the 1972 CWA’s basic objective was “to eliminate toxic pollutants in toxic amounts” id., 426, ER484, and stated of the “farmer exemptions”: The conferees agree to adopt the Senate amend- ment that legislatively clarifies the exclusion of cer- tain activities that do not typically involve point source discharges of dredged or fill material .. . plowing, seeding, cultivating, harvesting, minor 25 drainage, and soil and water conservation practices performed on uplands were not intended to require section 404 permits. . . . [{] . . . While it is under- stood that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, the exemptions do not apply to discharges that convert extensive areas of water into dry land or impede circulation or reduce the reach or size of the water body. ER485, emph. added; see also 4 1977 LEG. HIST. at pp. 919-920 (ER490-491) (Chafee comments); see ER495, 493, 494. The legislative history shows Congress never intended to regulate pure plowing under the CWA and never even considered it to produce “discharges.” The implementing agency regulations accordingly exclude all plowing from CWA regulation. 33 CFR Section 323.2(f), for example, provides “fill” is addition of material and never includes plowing. EPA’s regulations provide: Plowing means all forms of primary tillage, including moldboard, chisel, or wide-blade, disking, harrowing, and similar physical means used 7: farm, forest or ranch land for the breaking up, cutting, turning over, or stirring of soil to pre- pare it for the planting of crops... . Plowing, as described above, will never involve a discharge of dredged or fill material. App., infra, 218, emph. added. Nor does the case law support the Ninth Circuit's unwarranted extension of Section 404 jurisdiction to purely farming activities. In Akers, the farmer purchased a 9,600 acre property which contained 2,889 acres of wetlands - known as the “Big Swamp” - on which he planned to “carry out extensive grading, leveling, drain- age and water diversion to convert the wetlands to farm- lands suitable for growing upland crops.” Akers, supra, 785 F.2d at 816-817. Toward this end, he constructed a 3-mile long dike and 50-foot wide ditch to drain the 26 wetlands. Id. Based on Akers’ extensive dike building, gra- ding, leveling and water diversion activities, which were specifically designed to convert the marshy Big Swamp from non-farmable land into farmable land, the Ninth Circuit “affirm[ed] the injunction [against Akers] as a reasonable response to the peculiar facts before [it].” Id. at 820, emph. added. It did not endorse the Government's more extreme arguments, including arguments that “mere discing of soil” constituted a point source dis- charge of pollutants and that farmers required CWA per- mits to change from one wetland crop to another. Id. at 820; see id. at 819 (holding farmer exemptions inapplica- ble because court “cannot view Akers’ plowing, discing and seeding in isolation” from other activities). Akers never held mere plowing of already-farmable land alone was regulated. Petitioners’ plowing here must be viewed in isolation, because that is undisputedly how it occurred, on semi-arid ranchland already dry enough to plow and plant in its natural state. No case has ever held the Corps’ CWA Section 404 jurisdiction extends to regulatiiig mere plowing on land dry enough to farm in its natural state without first undertaking extraordinary conversion activities. To the extent the Ninth Circuit unduly deferred to EPA’s unauthorized application and interpretation of the CWA and its own regulations, its decision conflicts with this Court’s SWANCC decision, which es clear that the States retain traditional and primary power to regu- late land and water use. SWANCC, supra, 531 U.S. at 174, citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 44 (1994). As recognized by the CWA, farmers’ and ranchers’ agricultural land uses, including activities like plowing, are traditional matters of state and local, not federal, control. 33 U.S.C. §§ 1288, 1329; App., infra, 210, 212. Where administrative statutory interpretation is not only clearly erroneous but alters the federal-state frame- work by permitting federal encroachment on traditional state powers, courts do not apply the deferential standard 27 of Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). SWANCC, supra, 531 U.S. at 173. Rather, in such cases, Congress must “convey its purpose clearly” or courts will deem it not to “have significantly changed the federal state balance.” Id., quoting United States v. Bass, 404 U.S. 336, 349 (1971). The Ninth Circuit’s expansive definition of the terms “discharge,” “addition,” “point source” and “pollutant”, and narrow interpretation of the farmer exemptions, so as to include the pure plowing done in this case within the Corps’ CWA Section 404 jurisdiction, substantially expands federal power to an unprecedented extent at the expense of State and local authority. SWANCC forbids this absent Congress’ clearly-expressed intent. As Judge Gould stated, “If Congress intends to prohibit so natural a farm activity as plowing, and even the deep plowing that occurred here, Congress can and should be explicit. Although we interpret the prohibition of the [CWA] to effectuate Congressional intent, it is an undue stretch for us absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity.” App., infra, 19-20. IV. THE NINTH CIRCUIT ERRED IN CALCULATING THE CIVIL PENALTY BY CALCULATING EACH PASS OF THE PLOW THROUGH WATERS, RATHER THAN EACH DAY OF PLOWING, AS A SEPARATE VIOLATION UNIT If one assumes, solely arguendo, that plowing alone is a regulable activity under CWA Section 404, the Ninth Circuit nevertheless erred as a matter of law when it held the maximum CWA penalty was properly calculated by multiplying the number of passes the district court found were made by the plow, App., infra, 12-16, through each jurisdictional feature by the statutory dollar amount rather than multiplying the number of days during which 28 plowing “discharges” occurred in particular “waters” by the statutory dollar amount. 33 U.S.C. Section 1319(d), App., infra, 209, authorizes civil penalties “not to exceed $25,000 per day for each violation” against persons violating Section 1311(a) by discharging pollutants without a permit. This statute con- templates maximum penalties will be calculated not in terms of the total number of individual violations of the same type, but, rather, in terms of daily violation units. The “top-down” method of penalty assessment (employed here) involves calculating the maximum statutory penalty by first finding how many distinct categories of CWA violations occurred, and then finding the number of days during which each category occurred and multiplying the number of days by $25,000. Chesapeake Bay Foundation v. . Gwaltney of Smithfield, 791 F.2d 304, 314 (4th Cir. 1986) vacated and remanded on other grounds, 484 U.S. 49 (§ 1319(d) speaks “in terms of penalties per day of viola- tion, rather than per violation.”); Atlantic States Legal Foun- dation v. Tyson Foods, 897 F.2d 1128, 113° (11th Cir. 1990) (“each distinct violation is subject to a separate daily pen- alty assessment of up to $25,000 . . . ”); Hawaii's Thousand Friends v. City and County of Honolulu, 821 F.Supp. 1368, 1395 (D. Haw. 1993) (discussing top-down method of calculating number of categories and “daily violations” to arrive at maximum penalty). The Gwaltney court rejected defendant's interpreta- tion there as untenable because it impermissibly calcu- lated the statutory maximum penalty “per violation,” rather than “per day of violation.” Gwaltney, supra, 791 F.2d at 314. The Ninth Circuit and district courts here, too, read the words “per day” out of the statute and impermissibly divided daily soil discharges within a sin- gle category of violation into hundreds of separate viola- tions. App., infra, 12-16. Under Gwaltney, Tsakopoulos’ maximum penalty should have been limited to, at most, the number of days during which the same type of “point 29 source discharges” of soil actually occurred in particular waters. Counting as separate violation units the number of times a single point source (i.e., a plow shank) crossed a single jurisdictional feature during a single day imper- missibly converts a single daily violation unit of the same activity into numerous sub-daily violation units and ille- gally establishes the maximum penalty “per violation, rather than per day of violation” — a result “inconsistent with the language of § 1319(d).” Gwaltney, supra, 791 F.2d at 314. Where the “violation unit” is measured by less than a single day’s period of time - for example, an “hourly maximum violation” occurring multiple times during the same day - the CWA limits the maximum penalty to one day for all such violations if they are of the same type. United States v. Amoco Oil Co., 580 F.Supp. 1042, 1046, n. 1 (W.D. Mo. 1984), cited with approval by Tyson Foods, supra, 897 F.2d at 1138, 1138-1139 (holding Congress amended § 1319(d)’s language to its current “per day for each violation” to clarify the statute in accordance with Amoco’s interpretation). . Tsakopoulos’ alleged violations all fell within the sin- gle distinct category of alleged discharge of a single “pollu- tant” - “fill” from native soil turned in place ~ from a “point source” without a permit. App., infra, 15. In per- forming its “top-down” analysis, the court should have added the number of daily violations of this category and multiplied that total by $25,000. Hawaii's Thousand Friends, supra, 821 F.Supp. at 1395. Despite extensive evi- dence introduced by the Government in the form of daily time records of the deep plow operators, the lower courts failed to engage in any analysis of the number of days on which such plowing occurred in either fall 1995 or fall 1996 on the Ranch’s San Joaquin side, and never even estimated the number of daily violation units. CR189, ER1042-1043. 30 CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, Timotny S. BisHop Mayer, BRowN Rowe & Maw 190 South LaSalle Street Chicago, IL 60603 (312) 782-0600 EDMUND L. REGALIA Miter, STARR & REGALIA A Professional Law Corporation 1331 N. California Blvd., 5th Floor Post Office Box 8177 Walnut Creek, CA 94596 (925) 935-9400 ARTHUR F. Coon Counsel of Record Miter, STARR & REGALIA A Professional Law Corporation 1331 N. California Blvd., 5th Floor Post Office Box 8177 Walnut Creek, CA 94596 (925) 935-9400 Counsel for Petitioner February 2002 United States Court of A Panel Opinion (08/15/01)............--0+00- App. APPENDIX TABLE OF CONTENTS for the Ninth Circuit United States District Court for the Eastern Dis- trict of California Proceedings Joint Stipulation and Preliminary Injunction Gallen GVM aa oc cnsccvcciscnvecesqseccs App. Amended Order on cross-motions for summary judgment (8/3/98)..........0ceeceeeeeeeeees App. Order denying AKT’s motion for entry of final judgment and certification of order on sum- mary judgment (8/10/98)................54- App. Findings of Fact and Conclusions of Law RUA ens A ae a ci RS App. Order Denying Borden Ranch’s motion to amend findings of fact and conclusions of law td tccekpewtdvetedsbededekeovsnens App. Final Order directing entry of Judgment with one change from jointly submitted proposed final judgment (3/3/00) .......-...-..eeeeee App. Judgment (3/3/00). ..........0eeee cece eeeeee App. Relevant Administrative Orders and Companion Case Angelo K. Tsakopoulos v. American Manufac- turer’s Mutual Insurance et al.: Order on cross- motions for summary judgment (8-9-00)..... App. May 1996 Administrative Order On Consent i ditikintiee 6 dhdeiede bees enbdbedd inen App. Page 23 28 57 67 122 127 134 135 165 ii APPENDIX TABLE OF CONTENTS - Continued December 12, 1996 ACE/EPA Field Memeran- dum Regarding Deep Plowing.............. App. 199 United States Court of Appeals for the Ninth Circuit Order denying petition for rehearing en banc RFEIP OED hs dc bude csonsasuhekhecgncsingndose App. 208 Relevant Statutes and Regulations set out verbatim with citation Statutes 1. 33 U.S.C. section 1311(a).................. App. 209 2. 33 U.S.C. section 1319(d).................. App. 209 S. 33 USC. auction 1960(e) .........ccccccece App. 210 4. FB UBA. GUGM TROBE) «cc cccccccccccns App. 210 5. 33 U.S.C. section 1344(f)(2)................ App. 211 6. 33 U.S.C. section 1362(6)..............0005 App. 211 Fe Be Dee GREE Fs hike cccccdécccces App. 212 8. 33 U.S.C. section 1362(14)................. App. 212 S WUBC. spctham WIG... cc cccccvscuses App. 213 Regulations 1. 33 C.FRR. section 323.2(d)(1)(iii)............ App. 213 2. 33 C.FR. sections 323.2(d)(2)(i), 323.2(d)(2){ii) App. 213 3. 33 C.ER. section 323.2(d)(3)(iii)............ App. 214 4. 33 C.FR. section 323.2(d)(4)(iii)............ App. 214 5. 33 CER. sections 323.4(a)(1)(i), 323.4(a)(1)(ii) App. 215 o oN iii APPENDIX TABLE OF CONTENTS - Continued 33 C.ER. section 323.4(a)(1)(iii)(D)......... App. 216 40 C.RR. section 232.2(4)(iii)............... App. 216 40 C.ER. sections 232.4(c)(1)(i), 232.3(c)(1)(ii) App. 217 40 C.RR. section 232.3(d)(4) ...........000. App. 218 App. 1 BORDEN RANCH PARTNERSHIP; Angelo K. Tsakopoulos, Plaintiffs-Appellants, Vv. UNITED STATES ARMY CORPS OF ENGINEERS; United States Environmental Protection Agency, an agency of the United States, Defendants-Appellees. No. 00-15700. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 9, 2001. Filed Aug. 15, 2001 Arthur F. Coon (argued) and Edmund L. Regalia (argued), Miller, Starr & Regalia, Walnut Creek, Califor- nia, for the plaintiffs-appellants. Sylvia Quast (argued), U.S. Department of Justice, Environment and Natural Resources Division, Washing- ton, D.C., for the defendants-appellees. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, District Judge, Presiding. D.C. No. CV-97-00858-GEB (JFM). Before: CANBY, HAWKINS, and GOULD, Circuit Judges. - MICHAEL DALY HAWKINS, Circuit Judge: 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 App. 2 activity and affirm the district court’s findings that Bor- den 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 Army 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. Prior 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 drain- ages. 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. Tsakopoulos intended to convert the ranch into vine- yards and orchards and subdivide it into smaller parcels for sale. Vineyards and orchards, however, require deep root systems, much deeper than the restrictive layer in the relevant portions of Borden Ranch permitted. For App. 3 vineyards and orchards to grow on this land, the restric- tive layer of soil would first need to be penetrated. This requires a procedure known as “deep ripping,” in which four- to seven-foot long metal prongs are dragged through the soil behind a tractor or a bulldozer. The 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 the Corps. Since 1993, Tsakopoulos and the Corps have dis- agreed about the Corps’ authority to regulate deep rip- ping in wetlands. Tsakopoulos initiated deep ripping without a permit in the fall of 1993, and the Corps granted him a retrospective permit in the spring of 1994, when Tsakopoulos agreed to various mitigation require- ments. In the fall of 1994, the Corps and the EPA informed Tsakopoulos 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. The next spring, the Corps discovered that deep ripping had occurred in protected wetlands and promptly issued a cease and desist order. From July 1995 through November 1995, Tsakopoulos again initiated deep ripping on various parcels of land without a permit. The Corps concluded that more protected wetlands had been ripped and again issued a cease and desist order. In May of 1996, the Corps and the EPA entered into an Administrative Order on Consent with Tsakopoulos that was intended to resolve his alleged Clean Water Act violations. Under the agreement, Tsakopoulos set aside a App. 4 1368-acre preserve and agreed to refrain from further violations. In December of 1996, the Corps and the EPA issued a regulatory guidance letter that distinguished deep rip- ping from normal plowing activity. The letter stated that deep-ripping in wetlands “destroy[s] the hydrological integrity of these wetlands” and therefore “requires a permit under the Clean Water Act.”? In March of 1997 the Corps concluded that Tsakopoulos had continued to deep rip wetlands without permission. That April, EPA investigators visited the ranch and observed fully engaged deep rippers passing over jurisdictional wetlands. EPA then issued an Admin- istrative Order to Tsakopoulos. Tsakopoulos responded by filing this lawsuit, chal- lenging the authority of the Corps and the EPA to regu- late deep ripping. The United States filed a counterclaim seeking injunctive relief and civil penalties for Tsakopoulos’s alleged violations of the Clean Water Act. 1 In the district court, Tsakopoulos argued that this letter was invalid. The district court found that “it is unclear whether the regulatory guidance letter has actually been applied to Plaintiffs. Therefore decision is reached without reference to it.” The district court also found that “any as-applied challenge to the regulations that might also include a challenge to the application of the [regulatory guidance letter] is not ripe.” On appeal, Tsakopoulos again challenges the regulatory guidance letter, arguing for the first time that the letter is a substantive rule that required notjce-and-comment rule making. Since this new argument was not presented to the district court, we decline to consider it on appeal. See Nelson v. City of Irvine, 143 F.3d 1196, 1205-06 (9th Cir.1998). App. 5 Both parties filed motions for summary judgment. The district court ruled that the Corps has jurisdiction over deep ripping in jurisdictional waters. However, the court found disputed facts with respect to whether such deep ripping had actually occurred. These facts were litigated in a bench trial that began on August 24, 1999, and concluded on September 16, 1999. The district court heard evidence from over twenty witnesses and received hundreds of documentary exhibits. The district court subsequently entered findings of fact and conclusions of law determining that Tsakopoulos had repeatedly violated the Clean Water Act. The court found 348 separate deep ripping violations in 29 drain- ages, and 10 violations in a single vernal pool. The dis- trict court gave Tsakopoulos the option of paying a $1.5 million penalty or paying $500,000 and restoring four acres of wetlands. Tsakopoulos chose the latter option. After denying a motion for more specific findings of fact, the district court entered its final order in favor of the United States. Tsakopoulos then brought this timely appeal. We have jurisdiction under 28 U.S.C. § 1291. Analysis I. Corps Jurisdiction over Deep Ripping The Clean Water Act prohibits “the discharge of any pollutant” into the nation’s waters. 33 U.S.C. § 1311(a). The nation’s waters have been -interpreted-to include wetlands adjacent to navigable waters. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133-35, 106 App. 6 S.Ct. 455, 88 L.Ed.2d 419 (1985). The Act defines dis- charge as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12). A point source is “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). A pollutant is defined, inter alia, as “dredged spoil, . . . biological materials, . . . rock, sand, [and] cellar dirt.” 33 U.S.C. 1362(6). It is unlawful to discharge pollutants into wet- lands without a permit from the Army Corps of Engi- neers. 33 U.S.C. § 1344(a),(d). A. Discharge of a Pollutant Tsakopoulos initially contends that deep ripping can- not constitute the “addition” of a “pollutant” into wet- lands, because it simply churns up soil that is already there, placing it back basically where it came from. This argument is inconsistent with Ninth Circuit precedent and with case law from other circuits that squarely hold that redeposits of materials can constitute an “addition of a pollutant” under the Clean Water Act. Rybachek v. United States Envtl. Prot. Agency, 904 F.2d 1276 (9th Cir.1990), considered a claim that placer mining activities were exempt from the Act. We held that removing mate- rial from a stream bed, sifting out the gold, and returning the material to the stream bed was an “addition” of a “pollutant.” Id. at 1285. The term “pollutant” encom- passed “the materials segregated from gold in placer mining.” Id. Our reasoning in Rybachek is similar to that of the Fourth Circuit in United States v. Deaton, 209 F.3d 331 (4th App. 7 Cir.2000). In Deaton, a property owner alleged that the Corps could not regulate “sidecasting,” which is “the deposit of dredged or excavated material from a wetland back into that same wetland.” Id. at 334. The property owner asserted that “sidecasting results in no net increase in the amount of material present in the wetland” and therefore could not constitute the “addition of a pollu- tant.” Id. at 335. The Fourth Circuit squarely rejected this argument, in language that is worth quoting in full: Contrary to what the Deatons suggest, the stat- ute does not prohibit the addition of material; it prohibits the “addition of any pollutant.” The idea that there could be an addition of a pollu- tant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here. . . . Once [earth and vegetable matter] was removed [from the wetland], that material became “dredged spoil,” a statutory pollutant and a type of mate- rial that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously pre- sent on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that mate- rial was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before. Id. at 335-36. As the court concluded, “Congress deter- mined that plain dirt, once excavated from waters of the United States, could not be redeposited into.those waters without causing harm to the environment.” Id. at 336; see also Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d App. 8 897, 923 (Sth Cir.1983) (holding that the word “addition” may be reasonably understood to include “redeposit”). These cases recognize that activities that destroy the ecology of a wetland are not immune from the Clean Water Act merely because they do not involve the intro- duction of material brought in from somewhere else. In this case, the Corps alleges that Tsakopoulos has essen- tially poked a hole in the bottom of protected wetlands. That is, by ripping up the bottom layer of soil, the water that was trapped can now drain out. While it is true, that in so doing, no new material has been “added,” a “pollu- tant” has certainly been “added.” Prior to the deep rip- ping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else. We can see no meaningful distinction between this activity and the activities at issue in Rybachek and Deaton. We therefore conclude that deep ripping, when undertaken in the con- text at issue here, can constitute a discharge of a pollutant under the Clean Water Act.? Tsakopoulos also contends that no case has ever held a plow to be a point source, and that a prohibited dis- charge must be from a point source. This argument has no merit. The statutory definition of “point source” (“any 2 National Mining Assoc. v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C.Cir.1998), upon which Tsakopoulos heavily relies, does not persuade us to the contrary. That case distinguished “regulable redeposits” from “incidental fallback.” Id. at 1405. Here, the deep ripping does not involve mere incidental fallback, but constitutes environmental damage sufficient to constitute a regulable redeposit. App. 9 discernible, confined, and discrete conveyance”) is extremely broad, 33 U.S.C. § 1362(14), and courts have found that “bulldozers and backhoes” can constitute “point sources,” Avoyelles, 715 F.2d at 922. In this case, bulldozers and tractors were used to pull large metal prongs through the soil. We can think of no reason why this combination would not satisfy the definition of a “point source.” B. The Normal Farming Exception Tsakopoulos next contends, that even if deep ripping constitutes a discharge of pollutants, it is nonetheless exempt from regulation under the “farming exceptions,” which state that discharges “from normal farming . . . and ranching activities, such as plowing” are not subject to the Clean Water Act. 33 U.S.C. § 1344(f)(1)(A). The section of the statute containing the farming exceptions, how- ever, includes a significant qualifying provision: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). Thus, even normal plowing can be regulated under the Clean Water Act if it falls under this so-called “recapture” provision. See Avoyelles, 715 F.2d. at 925 (noting that § 1344(f)(2) can preclude the normal farming exceptions). App. 10 We conclude that the deep ripping at issue in this case is governed by the recapture provision. Converting ranch land to orchards and vineyards is clearly bringing the land “into a use to which it was not previously subject,” and there is a clear basis in this record to con- clude that the destruction of the soil layer at issue here constitutes an impairment of the flow of nearby navigable waters. Although the Corps cannot regulate a farmer who desires “merely to change from one wetland crop to another,” activities that require “substantial hydrological alterations” require a permit. United States v. Akers, 785 F.2d 814, 820 (9th Cir.1986). As we have explained, “the intent of Congress in enacting the Act was to prevent conversion of wetlands to dry lands,” atic we have classi- fied “as non-exempt those activities which change a wet- land’s hydrological regime.” Akers, 785 F.2d at 822. In this case, Tsakopoulos’s activities were not intended simply to substitute one wetland crop for another; rather they radi- cally altered the hydrological regime of the protected wetlands. Accordingly, it was entirely proper for the Corps and the EPA to exercise jurisdiction over Tsakopoulos’s activities. | Il. The Vernal Pool The district court found Clean Water Act violations in one isolated vernal pool on Tsakopoulos’s property. Ear- lier this year, the Supreme Court ruled in Solid Waste that the Corps’ rule extending the definition of “navigable waters” under the Clean Water Act to include intrastate waters used as habitat for migratory birds exceeds the App. 11 authority granted to the Corps under the Clean Water Act. The government now concedes that Solid Waste pre- cludes Corps’ authority over the vernal pool in dispute and has formally withdrawn its enforcement claim with respect to the pool. We accordingly reverse the district court’s findings of Clean Water Act violations in the vernal pool. III. The District Court’s Factual Findings Tsakopoulos challenges the district court’s factual findings of violations of the Clean Water Act. We review for clear error. Ambassador Hotel Co. v. Wei-Chuan Inv., 189 F.3cl 1017, 1024 (9th Cir.1999). Tsakopoulos argues that “there was no substantial evidence at all” to support the court’s factual findings of deep ripping in protected swales. He argues that the evidence can only demonstrate shallow ripping consis- tent with the ripper in its uppermost position, which was permitted under the government's direction. “Where there are two permissible views of the evi- dence, the factfinder’s choice between them cannot be clearly erroneous.” Cree v. Flores, 157 F.3d 762, 768 (9th Cir.1998). The district court here held a four-week bench trial, examined numerous exhibits, and heard over twenty witnesses. There is ample evidence to support the district court’s findings. The court cited documentary evidence showing deep ripping, eyewitness testimony of deep ripping on the property, and Tsakopoulos’s own concession that “mistakes had been made.” The court also relied on the studies of Dr. Lyndon Lee, who conducted extensive investigations at the site. Dr. Lee was able to App. 12 dig soil pits as far as thirty inches into the soil. By examining the composition of the soil in these pits, Dr. Lee could determine whether the underlying clay layer had been ripped up, consistent with deep ripping. The district court chose to credit this evidence that deep rip- ping had occurred, and we can find no clear error on this record. IV. The Civil Penalty The district court found that Tsakopoulos had com- mitted 358 violations of the Clean Water Act. It counted each pass of the ripper through a protected wetland as a separate violation. The statute provides for a maximum penalty of “$25,000 per day for each violation.” 33 U.S.C. § 1319. The statutory maximum penalty was therefore $8,950,000. The court then considered a variety of factors in setting the penalty. The court found that Tsakopoulos “risked damaging rare federal wetlands because of his motivation to reap economic gain.” The court also found an “absence of a good faith attempt to comply with the Act.” The court accordingly set the penalty at $1,500,000, which is $7,450,000 below the statutory maximum. The court also allowed Tsakopoulos to suspend $1,000,000 of the penalty if he performed various restoration measures. Tsakopoulos now makes three challenges to the dis- trict court’s calculation of the civil penalty. We conclude that none of these arguments has merit. App. 13 A. Penalty Calculation per Violation Tsakopoulos first contends that the penalty should have been based on the number of days in which illegal ripping occurred, not on the number of individual passes with the ripper. He argues that the statutory language “per day for each violation” means that he can only be assessed $25,000 for any day in which ripping violations occurred, regardless of the total number of rippings in that day. y We disagree. The statute imposes a maximum penalty “per day for each violation.” 33 U.S.C. § 1319(d). It does not say “per each day in which violations occur” or “per day in which a party pollutes.” The focus is clearly on each violation, and courts have consistently rejected attempts to limit civil penalties to the number of days in which violations occur. A contrary rule would encourage individuals to stack all their violations into one “Pollu- tion Day,” in which innumerable offenses could occur, subject only to the $25,000 maximum. Tsakopoulos relies most heavily on Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th Cir.1986), vacated, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwaltney, the court considered a case of continuous violations of monthly permits. The violator argued that a monthly violation should be treated as a single day of violation. Id. at 313. The court disagreed, concluding “where a violation is defined in terms of a time period longer than’ a day, the maximum penalty assessable for that violation should be defined in terms of the number of days in that time period.” [d. at 314. The App. 14 court explicitly declined to reach the very different ques- tion of “whether multiple violations attributable to a single day may give rise to a maximum penalty in excess of [the penalty amount] for that day.” Id. at 308. This question was addressed in Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th Cir.1990). The court found that the statutory provision was “not a model of clarity,” but nonetheless found that it was “capable of only a single reasonable interpretation: the daily maximum penalty applies separately to each violation of an express limitation.” Id. at 1137, 1138. The court stated that “each excessive discharge of a pollutant on a given day will subject the polluter to a $25,000 maximum fine.” Id. at 1139. This interpretation was con- sistent with the legislative history, which stated that the provision was intended “to clarify that each distinct vio- lation is subject to a separate daily penalty assessment.” Id. (citation omitted). | The Fourth Circuit adopted similar reasoning in United States v. Smithfield Foods, Inc., 191 F.3d 516, 528 (4th Cir.1999). The court noted the serious incentive problems of a contrary ruling: “[I)f the maximum penalty that could be levied against a violator on a single day was $25,000, no matter how many different Permit effluent limitations were violated, the permittee would have a strong disincentive to comply with the other permit lim- itations.” Id. at 527-28. Accordingly, the court treated each permit violation “as a separate and distinct infraction for purposes of penalty calculation.” Id. at 528. We recognize that these cases do not precisely resolve the problem at issue here. These cases are concerned with App. 15 emission of different types of pollutants in violation of different permits. This case is about repeated iilling of wetlands without a permit. Here, the landowner commit- ted the same unlawful act repeatedly. Tsakopoulos argues that treating each rip as a separate violation could lead to nonsensical results in other cases. For example, a polluter . who emitted 25,000 gallons of a pollutant into a stream continuously over the course of a day would be subject to a $25,000 maximum penalty, whereas a polluter who made three separate discharges of one gallon each would be subject to a $75,000 maximum penalty. Tsakopoulos’s position, however, also leads to irra- tional results. The incentive problems at issue in Smithfield are equally strong here. Once a wetland viola- tion has occurred in part of a swale, Tsakopoulos’s pro- posed rule would allow the landowner to rip away at the rest of the swale with impunity from that point forward, because no additional penalty could be imposed. Although neither approach is free from difficulty, we believe the better rule is to treat each rip as a separate violation. This approach is more consistent with the stat- utory language, with prior judicial interpretations of the statute, and with the general policy goal of discouraging pollution. Tsakopoulos’s concern about the disparate treatment of the polluter who emits several small amounts and the serial continuous polluter is not without remedy in the district courts. The district courts have substantial discretion in imposing penalties, and, as the Gwaltney court pointed out in response to a similar argu- ment, the district court “could . . . impose a substantially smaller penalty on [the] hypothetical polluter than on [the larger polluter].” 791 F.2d at 315. App. 16 In sum, we conclude that the district court correctly included each pass of the ripper as a separate violation. A limited remand for recalculation of the penalty is none- theless in order. The district court included 10 passes through the vernal pool in its total of 358 violations. Since the government now concedes that it lacks jurisdiction over these violations, we remand to the district court to determine what, if any, reduction in the penalty is appro- priate. B. The Simpson Timber Consent Decree Tsakopoulos argues that the penalty imposed here is significantly disproportionate to the penalty imposed in the settlement of violations by the Simpson Timber Com- pany, which deep ripped 987 acres, but was subject only to a $30,000 penalty and a restoration order. By contrast, Tsakopoulos committed violations on only two acres. The district court found that the Simpson Timber consent decree had no relevance to the determination of the civil penalty here, because consent decrees are different from judgments reached after extensive litigation and because that decree imposed significant restoration requirements. The district court did not abuse its discretion. Tsakopoulos knowingly assumed the risk that litigation would result in a judgment more unfavorable than he might have attained through settlement. Having assumed that risk, Tsakopoulos cannot now be heard to complain that his penalty should have been assessed as if he had settled the case. In any event, the statute directs that these disputes be evaluated on a case-by-case basis. Since we know almost nothing about the facts of the Simpson App. 17 Timber dispute, it is impossible to conclude that the district court’s careful analysis of the penalty issue on the facts of this case was an abuse of discretion. C. Further Reductions in Penalty Tsakopoulos finally argues that the district court should have reduced the penalty further because of Tsakopoulos’s good faith, the trivial nature of the viola- tions, and the supposed uncertainty concerning the gov- ernment’s regulatory authority. The district court considered these arguments when setting the penalty (a penalty that was significantly lower than the statutory maximum). None of Tsakopoulos’s arguments rises to the level necessary to demonstrate an abuse of discretion by the district court. | Conclusion We affirm the district court’s holding that deep rip- ping in this context is subject to the jurisdiction of the Corps and the EPA. We also affirm the district court’s factual findings except with respect to the vernal pools. We remand for a recalculation of the civil penalties. Finally, we deny Tsakopoulos’s request that this case be assigned to a different district judge on remand. AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED. Costs on appeal to appellees. App. 18 RONALD M. GOULD, Circuit Judge, dissenting: I respectfully dissent. The crux of this case is that a farmer! 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 trans- forming 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 Nationai Mining Associa- tion v. U.S. Army Corps of Engineers, 135 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 1 Appellant, Angelo Tsakopoulos, is referred to by the majority as a “real estate developer.” As the owner of Borden Ranch, which apparently engaged in both farming and ranching activities, it seems to me correct to refer to him as a farmer or a rancher, in addition to being a developer. Whether viewed as a farmer, rancher, or developer, his rights as a citizen are the same. Because the challenged activities in this case arise on land previously used for rangeland for cattle grazing, and his deep ripping was converting the land for orchard and vineyard farming, I consider him as a farmer and rancher, and the issues raised by his position in this litigation may impact farmers and ranchers regardless of whether they plan to sell portions of improved land. App. 19 regulating the redeposit of dredged materials that inci- dentally 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 material is removed from the waters of the United States and a small portion of it happens to fall back.” Id. at 1404. The court rejected the agencies’ primary argument that incidental fallback con- stitutes an “addition” because once dredged the material becomes a pollutant: Regardless of any legal metamorphosis that may occur at the moment of dredging, we fail to see how there can be an addition of dredged mate- rial when there is no addition of material. Although the Act includes “dredged spoil” in its list of pollutants, Congress could not have con- templated that the attempted removal of 100 tons of that substance could constitute an addi- tion simply because only 99 tons of it were actually taken away. Id. at 1404 (emphasis omitted). Those considerations are persuasive here as deep ripping does not involve any significant removal or “addition” of material to the site. The ground is plowed and transformed. It is true that the hydrological regime is modified, but Congress spoke in terms of discharge or addition of pollutants, not in terms of change of the hydrological nature of the soil. If Congress intends to prohibit so natural a farm activity as plowing, and even the deep plowing that occurred here, Congress can and should be explicit. Although we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, App. 20 it is an undue stretch for us, absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity. Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276 (9th Cir.1990), in my view, is distin- guishable. In Rybachek, we held that placer mining, “a process in which miners excavate dirt and gravel in and around waterways and, after extracting the gold, dis- charge the leftover material back into the water,” fell within the scope of section 404 of the Clean Water Act. Id. at 1285. There, the Rybachek court identified the regulable discharge as the discrete act of dumping leftover material into the stream after it had been processed. Id. As the concurrence in National Mining makes clear, however, “the word addition carries both a temporal and geo- graphic ambiguity. If the material that would otherwise fall back were moved some distance away and then dropped, it very well might constitute an ‘addition.’ Or if it were held for some time and then dropped back in the same spot, it might also constitute an ‘addition.’ ” National Mining, 145 F.3d at 1410 (Silberman, J., concur- ring). Because deep ripping does not move any material to a substantially different geographic location and does not process such material for any period of time, Rybachek is not controlling. Nor is the Fourth Circuit’s opinion in United States v. Deaton, 209 F.3d 331 (4th Cir.2000), relied on by the major- ity, persuasive to me in the context presented. A farmer who plows deeply is not, in my view, redepositing dredged or excavated materials. While the Fourth Circuit relied on the fact that a “dredged spoil” is a statutory App. 21 pollutant, the deep plowing activity here, in my view, is not the same as dredging dirt from and redepositing it in waters. Also, even assuming that deep ripping can be viewed as a discharge of a pollutant into navigable waters, it seems at first consideration exempt as a normal farming activity. The Clean Water Act exempts normal farming activity, including plowing. See 33 U.S.C. § 1344(f)(1)(A). The exemption as cast by Congress is not limited to shallow plowing, but would appear literally to cover the deep plowing technique referred to as deep ripping. This exemption, however, does not apply by its terms to “any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject.” See 33 U.S.C. § 1344(f)(2). Moreover, the Corps of Engineers, by regulation, has provided explicitly that the plowing exemption does not include “redistribution of soil, rock, sand, or other surficial mate- rials in a manner which changes any area of the waters of the United States to dry land.” 33 C.F.R. § 323.4(a)(1)(iii)(D). The Corp’s regulation, which we upheld in United States v. Akers, 785 F.2d 814, 819-20 (9th Cir 1986), must be read consistent with the statute’s terms. Although this limitation defeats the exemption for any deep ripping that had the purpose of transforming land, it does not, in my view, defeat the exemption as to any unintended impairment. Most violations found by the district court involved a purposeful attempt to transform the land. But some of the transgressions (indentations in swales caused by moving the deep ripper to different locations) found by the district court here were appar- ently unintentional, or at least there was no finding by App. 22 the district court of purposeful modification as to all of the violations. I would hold that the district court erred in finding that the activities here required a permit and otherwise violated the Clean Water Act. The problem of interpreta- tion here arises because Congress prohibited the dis- charge or addition of any pollutant to navigable waters from any point source. It did not literally prohibit any conduct by farmers or ranchers that changes the hydro- logical character of their land. The majority opinion, motivated perhaps by the purposes of the statute, makes App. 23 EDMUND L. REGALIA (Bar No. 29017) ARTHUR F. COON (Bar No. 124206) ANTHONY M. LEONES (Bar No. 184499) MILLER, STARR & REGALIA A Professional Law Corporation 1331 N. California Blvd., Fifth Floor Post Office Box 8177 Walnut Creek, California 94596 Telephone: (510) 935-9400 Attorneys for Plaintiffs BORDEN RANCH ASSOCIATES and ANGELO K. TSAKOPOULOS UNITED STATES DISTRICT COURT new law by concluding that a plow is a point source and EASTERN DISTRICT OF CALIFORNIA that deep ripping includes discharge of pollutants into protected waters. The policy decision involved here BORDEN RANCH Case No. CIV-S-97-858 should be made by Congress, which has the ability to ASSOCIATES; GEB ANGELO K. JFM study and the power to make such fine distinctions. | understand how the majority reaches its position based TSAKOPOULOS, (PROPOSED) JOINT on Rybachek, and incremental judicial reasoning. Notwith- Plaintiffs, STIPULATION AND standing, the judicial determination that a deep plowing v. PRELIMINARY technique constitutes a pollution of navigable waters, Us. AD cones cs INJUNCTION ORDER with no prior adequate guidance from Congress, goes ENGINEERS, an agency ) (Filed Oct. 20, 1997) beyond mere statutory interpretation. It would be prefer- of the United States; and able for the public, the regulators, and us were Congress UNITED STATES to speak explicitly on the subjects of what normal farm- ENVIRONMENTAL ing or ranching activities may include discharge of pollu- PROTECTION AGENCY, tants and require permits under the Clean Water Act, and y—thecpsine of the United whether it wishes to exempt any such activities and upon : what terms. The alternatives are an agency power too Defendants. unbounded or judicial law-making, which is worse. I AND RELATED CROSS- respectfully dissent. ACTION 7 Nem me ee ee ee ee eee ee ee ee ee eet eee” ~_— ~—" App. 24 The United States of America, having filed a Coun- terclaim seeking injunctive relief and civil penalties under the Clean Water Act, and a Motion for Temporary Restraining Order and Preliminary Injunction against plaintiff and counterdefendant Angelo K. Tsakopoulos; the Court having on October 9, 1997, orally entered a Temporary Restraining Order against Tsakopoulos for, among other things, planned plowing and planting activ- ities on already “deep-ripped” Borden Ranch parcels for land preparation and the planting of winter wheat and/ or oat crops precluding any such activities from occurring within swales (or other jurisdictional waters of the United States) until a hearing on the United States’ Motion for Preliminary Injunction could be had; Mr. Tsakopoulos having now determined, in light of the eco- nomics of the matter and the delay occasioned by the TRO, not to pursue said plowing operations in the swales; and Mr. Tsakopoulos accordingly having agreed to the entry of a preliminary injunction to preserve the status quo with respect to the Borden Ranch delineated waters and wetlands pending this Court’s decision on the merits of this action, | IT IS HEREBY STIPULATED BY THE PARTIES AND ORDERED BY THE COURT that: 1. Pending the resolution of the parties’ action, counterdefendant Angelo K. Tsakopoulos (“Tsakopoulos”) shall not engage in any activities which the United States has contended result in the discharge of any dredged or fill material into those portions of Borden Ranch designated as waters of the United States by the jurisdictional delineation performed by Sugnet & Associ- ates attached as Exhibit A hereto, except in those portions App. 25 of Borden Ranch where the discharge of dredged or fill materials has been authorized pursuant to a valid section 404 permit. 2. The prohibited activities in jurisdictional waters shall include, by way of example and not limitation, filling, dredging, deep plowing or deep ripping, discing, floating, levelling, grading, clearing land, and casting aside soil or other surface materials. This preliminary injunction does not enjoin Tsakopoulos from engaging in such activities outside of the delineated jurisdictional waters and wetlands. The United States reserves the right to take appropriate enforcement action against Mr. Tsakopoulos if such activities are in violation of other applicable laws and regulations. 3. Employees and authorized representatives (including contractors) of the United States Environmen- tal Protection Agency (“EPA”) and the United States Army Corps of Engineers (the “Corps”) shall be permit- ted reasonable entry into that certain property owned by Tsakopoulos and more particularly identified in Exhibit “D” to Tsakopoulos’ Complaint for Declaratory and Injunctive Relief in this action (“Borden Ranch”), upon reasonable written notice to Tsakopoulos of not less than 48 hours, for the purpose of monitoring compliance with this Order. As part of monitoring compliance, EPA or the Corps may take samples, measurements, photographs, and videotapes or otherwise record or document infor- mation regarding compliance with this Order. Any party to this Order may ask the Court to resolve any disputes regarding the reasonableness of notice or entry, or regard- ing compliance with this paragraph. App. 26 4. Tsakopoulos, his agents, servants, employees and assigns, and all persons in active concert or participation with them shall not unreasonably interfere in any manner with the implementation of this Order. Mr. Tsakopoulos reserves the right to file a motion with the Court for modification or dissolution of this Order at any time. 5. This Order shall be binding on Tsakopoulos, his agents, servants, employees and assigns, and all persons in active concert or participation with them. By stipulat- ing to this Order, Mr. Tsakopoulos merely agrees to pre- serve the status quo as set forth herein, and makes no concession or admission as to the facts, theories or merits of this action. IT IS SO STIPULATED. Dated: 10/15, 1997 MILLER, STARR & REGALIA By: /s/ Arthur F. Coon Arthur F. Coon Attorneys for Plaintiffs BORDEN RANCH ASSOCIATES and ANGELO K. TSAKOPOULOS Dated: October 15, 1997 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY By: /s/ Sylvia Quast Sylvia Quast Attorneys for Defendants and Counterclaimant IT IS SO ORDERED. App. 27 Dated: October 20, 1997 /s/ Garland E. Burrell, Jr. UNITED STATES DISTRICT JUDGE App. 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CIV-S-97-0858 GEB JFM AMENDED ORDER* (Filed Aug. 3, 1998) BORDEN RANCH PARTNERSHIP; ANGELO K. TSAKOPOULOS, Plaintiffs, Vv. ) ) ) ) ) ) UNITED STATES ARMY? CORPS OF ENGINEERS, ? an Agency of the United ) States; and UNITED ) STATES ) ENVIRONMENTAL ) PROTECTION AGENCY, ? an Agency of the United ) States ) ) ) ) Defendants. AND RELATED CROSS- ACTION. Pending are the parties’ cross-motion for summary judgment on Plaintiffs’ challenge to Defendants’ applica- tion of the Clean Water Act (“CWA” or “Act”) to activities that Plaintiffs claim are not subject to regulation. For the reasons stated below, Plaintiffs’ motion is denied and Defendants’ motion is granted in part. * Because text was inadvertently omitted from the order filed June 9, 1998, this amended order is hereby filed. App. 29 I. BACKGROUND Section 404 of the CWA! establishes a permit pro- gram to control the discharge of dredged and fill mate- rial. See 33 U.S.C. § 1344. Section 301 prohibits discharge of any pollutant without a permit into navigable waters of the United States. See id. at § 1311. Unpermitted dis- charges of dredged or fill material or pollutant may be enforced pursuant to section 309. See id. at § 1319. Congress delegated Defendant United States Army Corps of Engineers (“Corps”) the authority to issue sec- tion 404 permits. See 33 U.S.C. §§ 1344(a), 1344(d). While the Corps retains enforcement authority over permit con- ditions and limitations, Defendant Environmental Protec- tion Agency (“EPA”) has direct enforcement authority Over unpermitted discharges in violation of section 301. See 33 U.S.C. §§ 1319, 1344. Both agencies are empowered to issue regulations and guidance documents and thus share in the administration of the Act. See, e.g., 33 U.S.C. § 1344(b)(1). At issue is whether Plaintiffs Borden Ranch Partner- ship and Angelo K. Tsakopoulos are required to obtain section 404 permits from the Corps before engaging in certain activities in “waters of the United States” on Borden Ranch. Plaintiffs argue they are entitled to plow these “waters” to plant orchards, vineyards, and other deep-root crops without obtaining a permit. They further contend that their deep slip plowing (“deep ripping”) 1 Unless otherwise indicated, all references to code sections pertain to the CWA. App. 30 and shallow plowing (“disking”) in areas of normally dry but seasonally inundated “wetlands” constitute “normal” plowing and farming activities, which are specifically exempt from the permit requirements. Accordingly, Plain- tiffs allege that Defendants have exceeded their delegated authority by arbitrarily and capriciously preparing and applying regulations to Plaintiffs’ activities.* Defendants rejoin that Plaintiffs’ deep ripping and disking activities are not exempt from section 404 permit requirements and that Plaintiffs have violated the CWA by placing fill, which alternatively constitutes pollutant, in protected waters without a permit. Defendants additionally argue that Plaintiffs’ facial challenges to defendants’ regulations are time-barred and that both Plaintiffs’ due process and 2 In the Complaint, Plaintiffs pray for declaratory and injunctive relief from application of both Defendants’ regulations and a Regulatory Guidance Letter (“RGL”) issued by the Corps on December 12, 1996. See Compl. at 29-30. However, based on the factual record presented on the cross motions for summary judgment, it is unclear whether the RGL has actually been applied to Plaintiffs. Therefore, decision is reached without reference to it. Furthermore, the ripeness of Plaintiffs’ challenge to the RGL has not been established. Ohio Forestry Ass'n, Inc. v. Sierra Club, 1998 WL 244192, at *5 (U.S. May 18, 1998). Therefore, any dispute regarding the RGL has not been shown to be justiciable. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967) (explaining that the ripeness requirement was designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties”). App. 31 commerce clause challenges to the regulations lack merit. II. ANALYSIS A. Standard of Review Summary judgment is appropriate where the record shows an absence of a genuine issue of material fact entitling the movant to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The movant has the initial burden of establishing the absence of genuine issues of material fact. Fed. R. Civ. P. 56(c). Once the movant has met its burden, the nonmo- vant must make a sufficient showing on matters on which it will have the burden of going forward with evidence at trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). “The inquiry involved in ruling on a motion for summary judgment .. . necessarily impli- cates the substantive evidentiary standard of proof that would apply at the trial on the merits.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, “[o]n cross motions for summary judgment, the burdens faced by the opposing parties vary with the burden of proof they will face at trial.” Cabo Distributing Co., Inc. v. Brady, 821 F. Supp. 601, 607 (N.D. Cal. 1992). 3 Pacific Legal Foundation, California Farm Bureau Federation, and California Cattlemen’s Association (collectively “PCC”) and California Mining Association (“CMA”) each filed amicus curiae briefs in support of Plaintiffs’ motion for summary judgment. Both PCC and CMA principally contest Defendants’ jurisdiction over “wetlands” on Borden Ranch. App. 32 When cross motions for summary judgment are filed, the ordinary implication is that no disputed issues of material fact exist and that the dispute may be decided as a matter of law. A & A Concrete, Inc. v. White Mountain Apache Tribe, 781 F.2d 1411, 1417, n.1 (9th Cir. 1986). Nevertheless, the Court must determine whether the par- ties have raised issues of material fact that make sum- mary judgment inappropriate. Id. A “material” fact is one that is relevant to an element of a claim or defense and whose exis- tence might affect the outcome of the suit. The materiality of a fact is thus determined by the substantive law governing the claim or defense. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors, Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Neither party seriously disputes the facts giving rise to the issues in suit. Instead, the parties disagree over the requirements of the CWA, and whether Plaintiffs’ activ- ities fall within the CWA’s proscriptions. The motions thus require construction of the Act in light of the undis- puted facts. B. Section 301 Violation To establish that Plaintiffs violated section 301 of the CWA, Defendants must show “(a) that [they have] juris- diction over the subject waters, (b) that the [Plaintiffs] discharged or placed fill [or pollutant] in those waters, and (c) that the [Plaintiffs] did so without a permit from App. 33 the Corps.” United States v. Zanger, 767 F. Supp. 1030, 1033 (N.D. Cal. 1991). 1. Jurisdiction over the Subject Waters The Corps’ section 404 jurisdiction over “waters of United States” includes navigable waters; interstate waters and wetlands; all other waters, the use, degrada- tion, or destruction of which could affect interstate or foreign commerce;* tributaries of all above waters; and wetlands adjacent to such waters. See 33 C.F.R. § 328.3; 40 C.F.R. § 232.2. See also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139 (1985) (approving the Corps’ interpretation of its CWA jurisdiction to include wetlands adjacent to navigable waterways). Borden Ranch supports primarily three types of waters of the United States: vernal pools, sloped wetlands (also known as swales), and intermittent drainages. See Undisputed Material Fact (“UMF”) 45. Some intermittent streams on Borden Ranch are tributaries to tributaries of the Sacra- mento River, a water used in interstate commerce. Id. at 48-49. Plaintiffs “do not dispute the accuracy of [the Corps’] delineation of areas on Borden Ranch as wetlands” for the purposes of their motion. Pls.. Mem. Supp. Mot. Summ. J. at 1, n.1. Therefore, Defendants’ jurisdiction over the subject waters is not at issue. However, the * “Other waters” includes “intrastate lakes, river, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, wet meadows, playa lakes, or natural ponds.” 33 C.F.R. § 328.3(a)(3); 40 C.F.R. § 232.2. App. 34 parties vigorously dispute whether Plaintiffs’ deep rip- ping and disking activities cause “discharge of any pollu- tant” or “dredged or fill material into the navigable waters,” which requires a permit. See 33 U.S.C. §§ 1311, 1344. 2. Discharge of Dredged or Fill Material and Addi- tion of a Pollutant from a Point Source Under the CWA, “dredged material” is defined as “material that is excavated or dredged from the waters of the United States.” 33 C.F.R. § 323.2(c); 40 C.F.R. § 232.2. “Fill material” is “any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water body.” 33 C.F.R. § 323.2(e); see also 40 C.F.R. § 232.2 (defining “fill mate- rial” as “any pollutant which replaces portions of the waters of the United States with dry land or which changes the bottom elevation of a water body for any purpose”). The definition of “pollutant” includes “dredged spoil,. . . . rock, sand, cellar dirt, . . . and agricultural waste discharged into water.” 33 U.S.C. § 1362(6). “Discharge of dredged material” means “any addi- tion of dredged material into, including any redeposit of dredged material within, the waters of the United States.” 33 C.F.R. § 323.2(d); 40 C.F.R. § 232.2. “Discharge 5 Section 404 authorization is not required for “any incidental addition, including redeposit, of dredged material associated with any activity that does not have or would not have the effect of destroying or degrading the waters of the App. 35 of fill material” is “the addition of fill material into waters of the United States.” 33 C.F.R. § 323.2(f); 40 C.F.R. § 232.2. “Discharge of a pollutant” is “any addition of any pollutant to navigable waters form any point source.” 33 U.S.C. § 1362(12). Here, the only question is whether Plaintiffs’ deep ripping and disking activities are subject to section 404 permit requirements. UMF 31-33, 35-36. The answer depends upon whether or not deep ripping and/or disk- ing cause “discharge” of “fill or dredged material” or “pollutant from a point source” into protected waters. Deep ripping is a type or technique of plowing used by farmers throughout the nation in preparation for the planting of deep-root crops that require water to pene- trate down into the root zone. UMF 36, 59. It is achieved by running a four- to seven-foot deep plow through the land to break up compacted soils in order to allow perco- lation of water deeper into the soil. Id. at 31, 58. Disking United States.” 33 C.F.R. § 323.2(d)(3)(i); see also 40 C.F.R. § 232.2. An activity associated with the discharge of dredged material destroys the waters of the United States “if it alters the area in such a way that it would no longer be a water of the United States.” 33 C.F.R. § 323.2(d)(4); 40 C.F.R. § 232.2. An activity associated with the discharge of dredged material degrades th [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A02. Public record. Not legal advice.