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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 981

## Text

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

a

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

eS
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

10

17
18

iV
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

v
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.

2
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

3

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
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.

5

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

6

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.

8

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

9
“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

10

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

ll

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

12

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.

13

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.

14

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

15

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

16

(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

17

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,

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 Curiae
April 2002

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A07. Public record. Not legal advice.