Amicus Curiae Brief — Borden Ranch Partnership v. United States Army Corps of Engineers

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Supreme Court, U.S.

FILED

wy)

No. 01-1243 APR 29 2002

OFFIC OF THE CLERK

IN THE

Supreme Court of the Anited States

BORDEN RANCH PARTNERSHIP;

ANGELO K. TSAKOPOULOS,

Petitioners,

Vv.

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

BRIEF AMICUS CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER *

MICHAEL J. STIENTJES

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, IL 60068

(847) 685-8600

* Counsel of Record Counsel for Amicus Curiue

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

229"

QUESTIONS PRESENTED

Amicus, the American Farm Bureau Federation, will

address the following questions:

1. Whether the court of appeals’ narrow construction of

the “normal farming” exemption set out in Section

404(f) of the Clean Water Act, and its expansive

construction of that section’s “recapture” provision,

fail to comport with the statute or its implementing

regulations.

2. Whether the court of appeals’ misconstruction of

Section 404(f) imposes intolerable burdens on

farmers and ranchers that Congress did not intend.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTED............cccccssssseesserssereeeeneees

TABLE OF AUTHORITIES ............ccccccssceeseereeereeeeenees

INTEREST OF AMICUS CURIAE. ........c00csecseeeeeseeeeeees

THE NINTH CIRCUIT’S CONSTRUCTION

OF SECTION 404(f) DOES NOT COMPORT

WITH THE TEXT OF THE STATUTE OR

ITS IMPLEMENTING REGULATIONS. .........

A. Congress Specifically Amended The Clean

Water Act To Exempt Ordinary Farming

Activities From The Burdensome Section

404 Permit Schone ......0..000ccercresccecsesseceseeeees

B. Congress Did Not Intend That The

Application Of The Normal Farming

Exemption Involve The Manufacture Of

Artificial Distinctions In Agricultural

RF CIID censscsczsscsessserscessxennscscencemessnsseaseen

C. Plowing Is Not Now And Never Was A

Discharge Subject To Section 404

PIII cosccnnsesessesenscscecssesssnesasessssensessnseeses

D. “Deep Ripping” Is Normal Plowing.............

THE NINTH CIRCUIT’S MISCONSTRUC-

TION OF SECTION 404(f) IMPOSES

INTOLERABLE BURDENS ON FARMERS

PDE RAE cccccccccccccccccccscccccccsccsscsscnsesceees

CN IIIN cccccccscceccsscescccccescescnsccsscsecossesssescssssessecssee

TABLE OF AUTHORITIES

CASES Page

E.l. du Pont de Nemours & Co. v. Train, 430

EL ee 9

Natural Resources Defense Council, Inc. v.

Callaway, 392 F. Supp. 685 (D.D.C. 1975)....... 5, 10

United States v. Huebner, 752 F.2d 1235, cert.

denied, 474 U.S. 817 (1985) ........cccccccscceeereeeeeees 6

STATUTES AND REGULATIONS

FD CUBE 6 BG Gerecenevcnssnccsssssnsssesessscsssssescssesesssemes passim

33 C.F.R. § 209 (July 25, 1975)...........ccccercsesereeees 11

pid E>) 5 15

SD CF tie © Fi A ccennsensnsssnensssasnsssnemnseseerssenesssen 9

Se Rf ee 15

MISCELLANEOUS

Agricultural Resource Management Study

(ARMS), Phase Il—Production Practices,

Interviewer’s Manual, U.S. Department of

Agriculture, National Agricultural Statistics

Service, August 2000 ..............scccccsscssssssssesesees 15

A Legislative History of the Clean Water Act of

1977: A Continuation of the Legislative

History of the Water Pollution Control Act

GF crccscsnnssncntemnmmnnmeencnnel 6, 7,9, 17, 18

For More Soybeans, Dig Deep, Agrculture

Research, February 1999 ............cccccsssscseeesesenes 16

Irrigating Deciduous Fruit and Nut Trees in

Oregon, Oregon State University Extension

aPCSSR, DEaay FEO ccccesccczsessecsssessssscssesscccsssansssese 16

TABLE OF AUTHORITIES—Continued

Irrigation Management Practices To Protect

Ground Water and Surface Water Quality,

State of Washington, EM 4885, Washington

State Department of Ecology and Coopera-

tive Extension Service, Washington State

I crnnntennctesntnesnnesssemnesnennminnmmmnsanntesmanes

Minimum tillage practices affect disease and

yield of lettuce, California Agriculture,

Jammary-Fobruary 2002 ......00cccccscsccscsccssesscsseseeees

Report on Resolution Providing for Consid-

eration of Conference Report on H.R. 3199,

Clean Water Act Of 1977 ......cccsccssscssssesessseseeeees

Rester, Subsoiling to Increase Cotton Yields,

Louisiana State University, Ag Research &

Small Ranch, University Of Nevada at Reno.........

Stine, Regulating Wetlands in the 1970s, U.S.

Corps of Engineers and the Environmental

Organizations, Journal of Forest History,

RES GD centempmneememennen

The Mid-Atlantic Wine Grape Grower's Guide,

North Carolina State University.....................+

2001 Virginia Cotton Production Guide, Vir-

ginia Cooperative Extension Service, Virginia

Page

——_ A ce RE

IN THE

Supreme Court of the Anited States

No. 01-1243

BORDEN RANCH PARTNERSHIP;

ANGELO K. TSAKOPOULOS,

Petitioners,

Vv.

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

BRIEF AMICUS CURIAE OF THE

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

With the written consent of the parties given and filed with

the Clerk of the Court, the American Farm Bureau Federation

respectfully submits this brief as amicus curiae.'

' Counsel for amicus curiae have authored this brief in whole and no

other person or entity other than amicus, its members or counsel have

made a monetary contribution to the preparation or submission of

the brief.

INTEREST OF AMICUS CURIAE

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization formed in 1919 and

organized in 1920 under the General Not-For-Profit Corpo-

ration Act of the State of Illinois. AFBF was founded to

protect, promote and represent the business, economic, social

and educational interests of American farmers and ranchers.

AFBF has member organizations in all 50 states and Puerto

Rico, representing more than 5 million member families.

AFBF has participated in many cases involving issues of

importance to its members in the U.S. Supreme Court,

including issues arising under the Clean Water Act (CWA).

AFBF’s farmer and rancher members produce virtually

every agricultural commodity produced commercially in the

United States. They own or lease significant amounts of land

on which they depend for their livelihoods and upon which all

Americans rely for food and other basic necessities. In recent

years they have become increasingly subjected to restrictive

laws and regulations that impair their ability to farm

efficiently, and, in some in instances, have eliminated their

ability to farm altogether. The protection of wetiands under

Section 404 of the CWA poses one of the more onerous

regulatory problems production agriculture faces today.

Section 404 of the CWA, 33 U.S.C. § 1344, regulates “the

discharge of dredged or fill material into the navigable waters

at specified disposal sites.” From its inception in 1972 and its

court ordered expansion in 1975, the Section 404 permit

program remains a very controversial, complex and conten-

tious program. Its application and misapplication to farms

and farming have played a key role in its evolution.

AFBF has a direct interest in the outcome of the instant

case. AFBF’s farmer and rancher members have been

severely restricted in the productive use of their lands by the

Ninth Circuit’s crabbed interpretation of Section 404(f) of the

Clean Water Act (CWA)—an interpretation that eviscerates

the Congressional exemption of normal farming practices

from the burdens of the CWA’s Section 404 permit program.

The Ninth Circuit’s construction of the statute’s exemption

and recapture provisions expands the reach of the CWA far

beyond what Congress intended, at best creating uncertainties

about permissible conduct and at worst exposing farmers

and ranchers pursuing routine farming activities to sub-

stantial penalties.

AFBF has followed the wetland evolution for nearly three

decades and watched it take on a life of its own as it marched

relentless up the hill consuming ever-dryer land. Those

forces which did not succeed in getting federal land use

control legislation in the late 1960s and early 1970s seem to

have seized upon the Section 404 wetlands program as a

mechanism to control as much of the landscape as possible.

The federal agencies, especially the Environmental Protection

Agency, Corps of Engineers and the Fish and Wildlife

Service, with the aid of the lower courts, have been happy to

cooperate in expanding the reach of the Section 404 wetlands

program. Now the Ninth Circuit has planted the seeds for

further expansion.

AFBF’s concerns with the Ninth Circuit’s decision can be

summarized as follows:

1. The decision clearly narrows the normal farming

exemption of Section 404(f)(1) and places the U.S.

Army Corps of Engineers and the Environmental

Protection Agency in the business of regulating day-

to-day farming and ranching practices.

2:-Fhe decision disturbingly finds that normal agri-

cultural plowing can result in the discharge of a

pollutant.

3. The decision finds that a farmer or rancher’s plow

can be a point source.

4. The decision expands the Section 404(f)(2) “recap-

ture” provision to the point where a farmer or rancher

will not be able to change his cropping patterns or

commodity mix without a permit from the federal

government or significant concern of a penalty for

violating the Clean Water Act.

This Court should grant review because the Ninth Circuit’s

decision erroneously interprets several key elements of Sec-

tion 404 resulting in expansive, intrusive and overreaching

federal regulatory authority over normal farming and

ranching activities which Congress never intended to regulate

at all under the CWA. As Judge Gould aptly noted in his

dissenting opinion, the majority’s decision ignores Congres-

sional intent, eviscerates the CWA’s jurisdictional require-

ments and farmer exemptions, and substantially alters the

federal-state framework by permitting federal encroachment

upon traditional state authority to regulate land use and

agricultural activities.

ARGUMENT

I. THE NINTH CIRCUIT’S CONSTRUCTION OF

SECTION 404(f) DOES NOT COMPORT WITH

THE TEXT OF THE STATUTE OR ITS

IMPLEMENTING REGULATIONS

This case squarely presents an important issue of federal

law with significant practical consequences for farmers and

ranchers. In 1977, Congress made a deliberate policy choice

to exempt the ordinary agricultural activities of farmers and

ranchers from the costly and burdensome requirements of the

Clean Water Act (CWA) Section 404 permit scheme. Now,

the Ninth Circuit in this case has seriously narrowed the

scope of the exemption for “normal farming . . . activities”

while simultaneously expanding the reach of the statute’s

so-called “recapture” provision. In so doing, it has extended

the scope of the permit requirement far beyond that intended

by Congress.

This overreaching has significant adverse consequences for

all American farmers and ranchers. It interrupts long

established and accepted agricultural practices and adds a

new layer of burdensome regulatory compliance requirements

and costs. It denies farmers and ranchers full entitlement of

property ownership and the ability to farm and ranch in an

efficient, flexible, productive and profitable manner. It

spawns precisely the regulatory nightmares from which

Congress intended to protect farmers and ranchers when it

amended the CWA in 1977. This Court should intervene in

this case to reinstate the intended breadth of the normal

farming exemption.

A. Congress Specifically Amended The Clean

Water Act To Exempt Ordinary Farming

Activities From The Burdensome Section 404

Permit Scheme

Controlling surface and subsurface water to ensure suf-

ficient, but not overly abundant supply is critical to successful

farming and ranching. Thus, it is not surprising that the

wetlands protection program enacted in Section 404 of the

Clean Water Act of 1972 engendered considerable contro-

versy between the government and the agricultural com-

munity when a federal district court ruled that the jurisdiction

of the Act extended to waters far beyond “the traditional tests

of navigability” and could reach ordinary farmland. See

Natural Resources Defense Council, Inc. v. Callaway, 392 F.

Supp. 685 (D.D.C. 1975).

The expansive reach of the Act threatened to impose a

permit requirement on enormous numbers of farmers and

ranchers whose lands occasionally contained standing water.

Section 404 became “a symbol to many Americans of how a

well-intentioned legislative initiative can turn into a quagmire

of disruption, frustration, and bureaucratic entanglement for

ranchers, farmers, foresters, and average citizens of this

country.” 4 A Legislative History of the Clean Water Act of

1977: A Continuation of the Legislative History of the Water

Pollution Control Act (“Legislative History”) 902 (1978)

(statement of Sen. Bentsen). As the chairman of the Senate

Committee on Environment and Public Works observed, the

complaints of farmers and ranchers evinced “widespread

concern that many activities that are normally considered

routine would be made extremely difficult because of the

complex regulatory procedures.” Jd. At 897 (statement of

Sen. Randolph).

These concerns lead in 1977 to amendments to the Act that

provided “for the first time statutory recognition that normal

farming, ranching, and silviculture activities do not belong in

this permit program.” 3 Legislative History at 351 (statement

of Rep. Hammerschmidt). Congress provided that no permit

is required for “the normal farming, silviculture, and ranching

activities such as plowing, seeding, cultivating, minor

drainage, harvesting . . . or upland soil and water conservation

practices,” or “for purposes of construction or maintenance of

. . . ittigation ditches, or the maintenance of drainage

ditches.” 33 U.S.C. § 1344(f)(1 (A), (C). On the other hand,

a so-called “recapture” provision stipulated that a permit was

required for discharges of dredged or fill material “incidental

to any activity having as its purpose bringing an area of

navigable waters into a use to which it was not previous

subject.” Jd. § 1344(f)(2).

These amendments, as the Seventh Circuit has observed,

created “a delicate balance of exceptions that protected wet-

lands while permitting routine activities to go on unimpeded.”

United States v. Huebner, 752 F.2d 1235, 1241 (7th Cir.),

cert. Denied, 474 U.S. 817 (1985). Congress thus made a

deliberate policy choice that “[t}he upland farming, forestry

and normal development activity carried out primarily by

individuals and as a part of a family business or family

farming activity need not bear the burden of an effort directed

primarily at regulating the kinds of activities which interfere

with the overall ecological integrity of the Nation’s waters.”

Senate Report No. 370, quoted in 4 Legislative History

at 644. As Senator Muskie, one of the principal Senate

sponsors, explained, “[t]he drainages exemption is very

clearly intended to put at rest, once and for all, the fears that

permits are required for draining poorly drained farm or

forest land of which millions of acres exist. No permits are

required for such drainages.” /d. At 1042 (emphasis added).

B. Congress Did Not Intend That The Application

Of The Normal Farming Exemption Involve

The Manufacture Of Artificial Distinctions In

Agricultural Land Usage

The Ninth Circuit, rubber stamping the interpretation of

overzealous regulators, construed the statutory exemption and

implementing regulations very narrowly. It ruled that

changing irrigated pasture and forage croplands containing

wetlands to vineyards and orchard was akin to the conver-

sion of wetland areas to agricultural uses where none had

previously existed.

An examination of the examples of normal farming and

ranching activities enumerated in Section 404(f) lends

support to the view that Congress did not intend the courts

applying the exemption to manufacture artificial distinctions

in land usage for various agricultural purposes (such as

between pastures and vineyards and orchards). The listed

activities include land preparation (plowing, seeding), pro-

duction (cultivating, harvesting), and maintenance (drainage

and conservation). Contrary to the Ninth Circuit’s holding,

there is absolutely no indication that Congress regarded

the precise nature of a farmer or rancher’s actions within

this wide range of conduct as determinative of the exemp-

tions applicability.

Congress understood the frequency with which farmers and

ranchers Can, and often must, change and/or diversify their

operations to achieve an economically viable or more prof-

itable farming or ranching operation. The transition from one

farming or ranching use to another, such as from pasture to

planting crops, occurs often in production agriculture. Pre-

paratory activities, which may include draining and plowing

and often occur over a period of years, still constitute normal

farming and ranching activities.

Pasturing and planting are simply subsets of the myriad

activities that comprise “normal farming.” Acknowledging

this reality, the statute and regulations give farmers and

ranchers flexibility to operate within the broad categories of

activities (farming, silviculture, and ranching) to which the

Section 404 exemption applies, without worrying that the

choice between one sort of farming or ranching activity and

another on a given piece of land may result in a CWA

violation. The Ninth Circuit’s ruling that it is the particular

existing use of a portion of a farm or ranch that counts in

determining if the normal farming exemption applies, not the

fact that the land is part of a continuing farming or ranching

operation, destroys this very necessary flexibility and for

practical purposes destroys the exemption.

The Ninth Circuit also wrongly construed the recapture

provision of Section 404(f) to extend the reach of the CWA

into normal farming activities that Congress intended to leave

alone. That provision requires permitting for an activity that

“bring[s] an area of the navigable waters into a use to which it

was not previously subject.” 33 U.S.C. § 1344(f)(2). The

statute provides no further elaboration on the meaning of

“use,” and the conflicting provisions of the implementing

regulations simply confuse matters.

On the one hand, the regulations appear to adopt a broad

‘and flexible approach to farming and ranching “uses” and

“activities” by specifying that a “permit will be required for

the conversion of a cypress swamp to some other use or the

conversion of a wetland from a silviculture to agricultural

use.” 33 C.F.R. § 3323.4(C). This provision implies that a

conversion from one agricultural use to another—for exam-

ple, from irrigated forage crop production and pasturing to

vineyards and orchards—would avoid the recapture provi-

sion. On the other hand, the regulation states categorically

that “[a] conversion of a Section 404 wetland to a non-

wetland is a change in use of an area of waters of the United

States.” Jd. This latter provision lacks textual or structural

support in the CWA, is inconsistent with related regulatory

provisions, and, more importantly, conflicts with the intent of

Congress. See E./. du Pont de Nemours & Co. v. Train, 430

U.S. 112, 138 (1977) (“The question . . . is not what a court

thinks is generally appropriate to the regulatory process; it is

what Congress intended for these regulations”). Every

indication in the statute and regulations, save this one, points

to “farming, silviculture, or ranching”—not to “wetlands or

non-wetlands”—as the relevant frames of reference for the

application of the recapture provision.

Moreover, the legislative history of the normal farming

exemption makes clear that Congress did not mean to

interfere with the operations of farms and ranches by requir-

ing a permit every time a farmer or rancher makes a change in

the productive use of agricultural lands from one crop to

another, or from pasture to planting. Congress, as Senator

Muskie pointed out, well understood that “draining poorly

drained farm{land]” would affect a substantial hydrological

alteration to “millions of acres” nationwide. 4 Legislative

History at 1042. Yet, as the Senator stated, the 1977

amendments established “once and for all” that no permits are

required for such activities. Jd. Accordingly, the Ninth

Circuit’s contrary ruling notwithstanding, the recapture

provision of Section 404(f)(2) does not remove active and

ongoing farming and ranching operations from within the

ambit of the normal farming exemption merely because there

occurs a change from one agricultural use to another.

C. Plowing Is Not Now And Never Was A

Discharge Subject To Section 404 Regulation

On March 27, 1975, the U.S. District Court for the District

of Columbia ruled that “navigable waters” extend to “the

maximum extent permissible under the Commerce Clause of

the Constitution” and are “not limited to the traditional tests

of navigability.” Natural Resources Defense Council, Inc. v.

Callaway, 392 F. Supp. 685 (D.D.C. 1975). Many within the

U.S. Army Corps of Engineers (Corps) felt this dramatic

expansion of federal jurisdiction should at least be confirmed

by a higher court, but the U.S. Department of Justice decided

against an appeal. Stine, Regulating Welands in the 1970s,

U.S. Corps of Engineers and the Environmental Organiza-

tions, Journal of Forest History, April 1983.

The Corps realized that any challenge to or relief from the

court ordered expansion of regulatory jurisdiction would have

to take place in the political arena. On May 6, 1975, the

Corps released a provocative news release that stated among

other things:

Federal permits may be required by the rancher who

wants to enlarge his stock pond, or the farmer who wants

to deepen an irrigation ditch or plow a field, or the

mountaineer who wants to protect his land against

stream erosion.

The release warned that “millions of people may be presently

violating the law” and “may be subject to fines up to $25,000

a day and one year imprisonment.” /d.

The anticipated firestorm was quick to follow as the story

was picked up by newspapers across the country. Environ-

mental groups viewed the news release as a deliberate attempt

by the Corps to sabotage the court order. And the Admin-

istrator of the U.S. Environmental Protection Agency, Russell

Train, wrote the Chief of the Corps on May 16, 1975 saying:

We are particularly concerned that the false impression

that farmers must obtain permits whenever they plow a

field be corrected. Since this was clearly not contem-

plated by either the Corps or EPA and is not required by

the statute, we fail to understand how such a statement

could appear in this press release. As you are well

aware, the primary concern of section 404 is to address

situations where dredged or fill material is discharged

into wetland areas. By no stretch of the imagination can

the simple act of plowing be considered to fall under

that category.

Id.- No one can dispute that the environmental community

and the federal government’s key official for administering

the CWA, the Administrator of the EPA, made it clear in

1975 that plowing was not a discharge subject to Section

404 regulation.

Responding to the furor raised by the May 6, 1975 news

release, the Corps included in the definitions of “dredged

material” and “fill material” an exclusion for “[mJaterial

resulting from normal farming, silvacutire [sic], and ranching

activities, such as plowing, cultivating, seeding, and har-

vesting, for the production of food, fibre, and forest products.

33 C.F.R. § 209(d)(4) and (6) (July 25, 1975). As the Corps

made clear in the preamble to those regulations, material

resulting from these practices was neither fill nor dredged

material, thus excluded from regulation under Section 404.

This exclusion, along with some other exclusions written into

the Corps’ 1975 regulations, and concurred in by the EPA,

became the catalyst for the statutory exemptions enacted by

Congress as Section 404(f) of the 1977 amendments to the

CWA. But it is important to note that Congress exempted

what the Corps had already excluded. In other words,

Congress said any discharges of dredged or fill material

resulting from these practices were exempt from regulation

whereas the agencies had already said these practices were

not a discharge of dredged or fill material in the first place.

It is important to distinguish between an “exclusion” and

an “exemption”. An excluded activity is one determined not

to involve a discharge in the first place and is thus not subject

to any program regulating discharges. An exempted activity

is one that does involve a discharge, but that discharge has

been statutorily exempted from regulation subject to a so-

called recapture provision.

There is nothing in the statute or the legislative history to

suggest that Congress intended to no longer treat these

practices as exclusions. In fact the legislative history includes

a number of references indicating an intent to endorse the

exclusions. In House debate on December 15, 1977, Con-

gressman Hammerschmitt stated:

On the positive side, we will now have for the first time

statutory recognition that normal farming, ranching and

silviculture activities do not belong in this permit

program. These exemptions reemphasize that Congress

never intended these activities to be considered dis-

charges of dredged or fill material. (Emphasis added)

Report on Resolution Providing for Consideration of

Conference Report on H.R. 3199, Clean Water Act of

1977, 351.

On the Senate side, Senator Baker stated:

Second, conferees adopted the Senate amendment to

section 404 that clarifies the exclusion of activities that

do not involve point source discharges, such as plowing

and upland conservation activities, and exempts others

that may involve discharges or other placements of

dredged or fill material that will be sucessfully con-

trolled by management practices and performance

standards imposed through the section 208 program.

The conferees agreed to adopt the approach taken by

the Senate in the Senate-passed bill with respect to

activities performed by the farming, forestry and mining

industries. First the conference bill clarifies the exclu-

sion of activities that do not involve point source

discharges of dredged or fill material, such as plowing,

seeding, cultivating, harvesting, and upland conservation

and minor drainage practices. The conference bill also

responds to testimony received in both the House and

Senate committee hearings on the section 404 question

by specifically exempting other farming, forestry, and

mining practices that do involve minor discharges of

dredged or fill material such as stock and farm ponds,

logging roads, temporary mining roads, and farm roads.

It is expected that these activities, while exempt from

permit requirements, would still be subject to section

208 including the best management practices approved

by EPA and imposed through a statewide regulatory

program. (Emphasis added)

Id. at 524.

By not dealing with the issue of exclusion versus exemp-

tion in the statute itself, Congress confused the issue as to

whether plowing is an exclusion, an exemption or both.

Nevertheless, the argument can be made that some forms of

plowing, not meeting the definition prescribed for excluded

plowing, would still result in plowing that is exempted. A

joint field memorandum issued by the Corps and the EPA in

1990 lends support to this argument by stating: “For exam-

ple, plowing that is exempt under Section 404(f) means all

mechanical means of manipulating soil, including land level-

ing, to prepare it for planting of crops.” EPA and Department

of the Army, Memorandum for the Field, May 3, 1990

(emphasis added). Land leveling is not included in the

definition of plowing used for the exclusionary statement in

Corps regulations.

The distinction between an “exclusion” and an “exemp-

tion” would not be important were it not for the fact that the

exemptions enacted in 1977 in Section 404(f)(1) were subject

to recall if they triggered the restrictions of Section 404(f)(2),

the so-called “recapture” provision. Under Section 404(f)(2),

an otherwise exempt discharge is “recaptured” if there is a

change in use of waters and a flow/circulation impairment or

reach reduction. Because of the federal government’s

increasing desires to control activities that harm wetlands,

the Corps and the EPA have narrowed the scope of the

exemptions through the years by use of this recapture

provision. But they have not changed their 1975 decision that

normal plowing is excluded.

After Attorney General Benjamin Civiletti opined Septem-

ber 5, 1979 that the EPA and not the Corps had the ultimate

authority to construe the meaning of the Section 404(f)

exemptions, EPA adopted in 1980 regulations defining

“plowing” and concluded with a sentence supporting the 1975

decision that plowing was not a discharge in the first place.

The Corps adopted the same language in 1982. Both

agencies have since overhauled their regulations that include

the definition of plowing, but have not changed the 1980

definition. Of greater significance, both agencies continue to

carry a clear statement at the end of the definition that

plowing conforming to the definition is “never” a discharge:

Plowing r all forms of primary tillage, including

moldbeasd, or wide-biade slowing, dissing, hawowine,

and similar physical means used on farms, forest or

ranch land for the breaking up, cutting, turning over, or

stirring of soil to prepare it for planting of crops.

Plowing does not include the redistribution of soil, rock,

sand, or other surficial materials in a manner which

changes any area of the waters of the United States to

dry land. For example, the redistribution of surface

materials by blading, grading, or other means to fill in

wetland areas is not plowing. Rock crushing activities

which result in the loss of natural drainage char-

acteristics, the reduction of water storage and recharge

capabilities, or the overburden of natural water filtration

capacities do not constitute plowing. Plowing, as

described above, will never involve a discharge of

dredged or fill material. (Emphasis added).

EPA regulations 40 C.F.R. 232.3(d)(4) and Corps regulations

33 C.F.R. 323.4(a)(1 iii (D).

In addition, and lending further support to the conclusion

that plowing, like that which took place in the instant case, is

excluded from Section 404 regulation, the EPA stated in the

preamble to it regulations: “Several commentators questioned

the requirement that plowing take place on established farm

or forest lands. This requirement has been deleted.”

D. “Deep Ripping” Is Normal Plowing

“Deep ripping” is but one of numerous types of normal

plowing that farmers and ranchers routinely employ in the

conduct of their production agricultural activities. The basic

purpose of “deep ripping” is to provide hardpan penetration

(a basic purpose and result of all types of plowing) and at the

same time form root beds that allow ample plant root

development as well as water infiltration and retention. See

Agricultural Resource Management Study (ARMS), Phase

Il—Production Practices, Interviewer’s Manual, U.S. Depart-

ment of Agriculture, National Agricultural Statistics Service,

August 2000.

The term “deep ripping” can refer to plowing that involves

depths ranging from a few inches for such crops as lettuce,

soy beans, wheat, cotton, and pumpkins, to several feet for

grape vines and fruit trees. See i.e., Rester, Subsoiling

to Increase Cotton Yields, Louisiana State University, Ag

Center Research & Extension (deep ripping 12 to 15 inches to

fracture hardpans); 200] Virginia Cotton Production Guide,

Virginia Cooperative Extension Service, Virginia Tech

(ripping and bedding 6 to 9 inches); For More Soybeans, Dig

Deep, Agriculture Research, February 1999 (deep tillage to a

depth of 12 to 16 inches); The Mid-Atlantic Wine Grape

Grower's Guide, North Carolina State University (subsoiling

18 to 24 inches); /rrigating Deciduous Fruit and Nut Trees in

Oregon, Oregon State University Extension Service, May

1996 (deep ripping to 4 feet). It is also a recommended

practice by both state agricultural extension services and

environmental quality agencies for not only improved crop

yields, but also for disease control and water conservation and

quality control. See i.e., Minimum tillage practices affect

disease and yield of lettuce, California Agriculture, January-

February 2002 (deep ripping 15 to 20 inches); Small Ranch,

University of Nevada at Reno (controlling soil erosion due to

compacted soil runoff by deep ripping and planting or

mulching); /rrigation Management Practices To Protect

Ground Water And Surface Water Quality, State of Washing-

ton, EM4885, Washington State Department of Ecology and

Cooperative Extension, Washington State University (rip

hardpans and compacted soils to improve filtration rates).

The fact that “deep ripping” may not be performed annu-

ally or on a frequent basis does not make it any less a

“normal” plowing activity for production agricultural pur-

poses. The frequency with which it is performed depends

upon matters of soil compaction and crops. It may be

performed only once in connection with the establishment of

a vineyard or orchard, once every several years where no-till

practices are used, or it may be performed annually in the

growing of row crops or grains. Frequency is not the

determining factor in what constitutes “normal” in production

agriculture; crops, conditions, technology and results are.

Depth and frequency of occurrence have nothing to do

with normal plowing for purposes of the Section 404(f)

agricultural exemption. As previously indicated, the purposes

of “deep ripping” are twofold: hardpan penetration and root

bed preparation. Hardpan penetration usually takes place

within a matter of a few inches. Otherwise the depth to

which “deep ripping” is to be performed depends upon the

root bed needed for the particular type of crop to be planted,

and this depth may range from a few inches to several feet.

In sum, “deep ripping” is “normal” plowing and a normal

farming or ranching activity that is excluded or exempted

from Section 404 regulation.

Il. THE NINTH CIRCUIT’S MISCONSTRUCTION

OF SECTION 404(f) IMPOSES INTOLERABLE

BURDENS ON FARMERS AND RANCHERS

The Ninth Circuit’s construction of Section 404(f) to

require farmers and ranchers to obtain a permit to convert

wetland forage crop and pasture lands into vineyards and

orchards imposes significant financial and administrative

burdens; loss of time completing and processing bureaucratic

paperwork, legal fees, delay and uncertainty, potential fines,

and loss of productive land—all costs that will either make

farming and ranching less profitable and thus less desirable as

an investment and livelihood, or will drive up the prices

charged to consumers for food and other basic necessities.

The administrative nightmare associated with the Clean

Water Act Section 404 permit scheme often deters farmers

and ranchers from even applying for a permit and discourages

all but the most determined from challenging a permit denial

in the courts.

Congress envisioned no such consequences when it

amended the CWA in 1977. The legislative history is replete

with statements showing Congress intended that the exemp-

tion scheme would give farmers and ranchers real protec-

tion. By 1977, Section 404 “ha[d] become synonymous

with Federal overregulation, overcontrol, cumbersome

bureaucratic procedures, and a general lack of realism.”

4 Legislative History at 903 (statement of Sen. Bentsen).

Congress undertook to amend the CWA to reflect “the fact

that we never intended under Section 404 that the Corps of

Engineers be involved in the daily lives of our farmers,

realtors, [and] people involved in forestry.” /d. at 924

(statement of Sen. Domenici). The resulting exemption of

normal farming activities from the permit requirement,

Congress hoped, would “greatly simplify the administrative

process and reduce the potential redtape burden.” /d. at 897

(statement of Sen. Randolph).

As this case perfectly demonstrates, implementation of the

normal farming exemption has not proceeded as Congress

intended. The interpretation and administration of the Sec-

tion 404 normal farming exemption by the Environmental

Protection Agency and the U.S. Army Corps of Engineers in

this case, acquiesced in by the Ninth Circuit, have not

fulfilled Congress’ aim of minimizing the interference

of federal regulators in the routine decisions of farmers

and ranchers.

This is not a case about a farmer or rancher indis-

criminately discharging dredged or fill material into navig-

able waters. This is a case of a farmer attempting to plant

a different crop on his farmland, a very normal farm-

ing activity.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,