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

FILED

se

No. 01-1243 AUG 26 2002

| _ ORPICE 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;

and 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 AND

THE ALABAMA, ALASKA, FLORIDA, IDAHO,

ILLINOIS, KANSAS, LOUISIANA, MONTANA,

NEBRASKA, NEW HAMPSHIRE, NEW YORK,

NORTH DAKOTA, OREGON, PENNSYLVANIA,

RHODE ISLAND AND SOUTH CAROLINA

STATE FARM BUREAU FEDERATIONS

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 Curiae

LT

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

am AT

TABLE OF CONTENTS

I. DEEP PLOWING IS NORMAL PLOWING

AND A NORMAL FARMING ACTIVITY

EXEMPT FROM REGULATION BY CWA

SECTION 404(f)

PASTURES AND FORGAGE CROP LANDS

ARE ESTABLISHED AGRICULTURAL

THE NINTH CIRCUIT NEGATED THE

SECTION 404(f) NORMAL FARMING

EXEMPTION WHEN IT RULED THAT

THE “RECAPTURE” PROVISION CAN

MAKE EVEN NORMAL PLOWING AND

ANY OTHER FARMING’ ACTIVITY

REGULABLE WHEN IT CHANGES A

WETLAND’S HYDROLOGY

CONCLUSION

TABLE OF AUTHORITIES

CASES Page

Avoyelles Sportsmen’s League, Inc. v. Marsh,

715 F.2d 897 (Sth Cir. 1983) .......cccscesseneseeeeees 9

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

Eng’rs, 261 F.3d 810 (9th Cir. 2001).........-00008 17

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

ei BO YF cecentesencrsesccessessessasesssvecsesesssonncces 16

Natural Resources Defense Council, Inc. Vv.

Callaway, 392 F.. Supp. 685 (D.D.C. 1975)....... 6

Solid Waste Agency of Northern Cook County v.

U.S. Army Corps of Eng’rs, 531 U.S. 159

ee el 3

STATUTES AND REGULATIONS

SSE passim

33 C.F.R. §209 (July 25, 1975) .cccccccccsssssssssseesseeeee 7

i 18

| AT 18

A 15

TATE 18

MISCELLANEOUS

Agricultural Resource Management Study

(ARMS), Phase Il—Production Practices,

Interviewer’s Manual, U.S. Department of

Agriculture, National Agricultural Statistics

Service, August 2000 ............c:ccscsssssessssssnsteeeeens 11

A Legislative History of the Clean Water Act of

1977: A Continuation of the Legislative His-

tory of the Water Pollution Control Act (1978)... 16

For More Soybeans, Dig Deep, Agriculture

Research, February 1999 ..............ccscsscsseseseeeeees 12

iii

TABLE OF AUTHORITIES

Irrigating Deciduous Fruit and Nut Trees in

Oregon, Oregon State University Extension

A Ce er cntenensepnscsnsnsenensasensnssemsenmnensens

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

Se hansincnsnsmnnnienitanmecunsemnsscenntecennenenntmmmaginees

Kahn, Lawsuits in Eden; Fury Over Napa

Vineyards, New York Times, April 14, 2002....

Minimum tillage practices affect disease and

yield of lettuce, California Agriculture,

Report on Resolution Providing for Considera-

tion of Conference Report on H.R. 3199, Clean

IDG HOU E cemnencunenemenmamensmememenn

Rester, Subsoiling to Increase Cotton Yields,

Louisiana State University, Ag Research &

RGL No. 86-01, Army Corps of Engineers,

ee

RGL No. 96-02, Army Corps of Engineers and

Environmental Protection Agency, December

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,

GRR Bi cxignsmnntinseusscctcersnsmammnpinenenneememanenens

The Mid-Atlantic Wine Grape Grower's Guide,

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

12

12

11

12

12

iv

TABLE OF AUTHORITIES

Page

2001 Virginia Cotton Production Guide, Vir-

ginia Cooperative Extension Service, Virginia

RE aesenscnssersecessssnnsssnenssenmasesuasnenssusensntsenssnsneamnese 12

Wetlands Characteristics and Boundaries,

National Academy Press, 1995 .............ccss0e00+ 13

IN THE

Supreme Court of the United States

No. 01-1243

BORDEN RANCH PARTNERSHIP;

ANGELO K. TSAKOPOULOS,

Petitioners,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS;

and UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Resvondents.

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 AND

THE ALABAMA, ALASKA, FLORIDA, IDAHO,

ILLINOIS, KANSAS, LOUISIANA, MONTANA,

NEBRASKA, NEW HAMPSHIRE, NEW YORK,

NORTH DAKOTA, OREGON, PENNSYLVANIA,

RHODE ISLAND AND SOUTH CAROLINA

STATE FARM BUREAU FEDERATIONS

IN SUPPORT OF PETITIONERS

With the written consent of the parties given and filed with

the Clerk of the Court, the American Farm Bureau Fed-

eration, Alabama Farm Bureau Federation, Alaska Farm

Bureau, Inc., Florida Farm Bureau Federation, Idaho Farm

Bureau Federation, Illinois Agricultural Association, Kansas

Farm Bureau, Louisiana Farm Bureau Federation, Inc.,

2

Montana Farm Bureau Federation, Nebraska Farm Bureau

Federation, New Hampshire Farm Bureau Federation, Inc.,

New York Farm Bureau, Inc., North Dakota Farm Bureau,

Oregon Farm Bureau Federation, Pennsylvania Farm Bureau,

Rhode Island Farm Bureau Federation, Inc., and the South

Carolina Farm Bureau Federation (hereinafter collectively

referred to as “Farm Bureau”) respectfully submit this brief as

amici curiae."

INTEREST OF AMICI 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 Cor-

poration 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. The

Alabama Farm Bureau Federation, Alaska Farm Bureau, Inc.,

Florida Farm Bureau Federation, Idaho Farm Bureau

Federation, Illinois Agricultural Association, Kansas Farm

Bureau, Louisiana Farm Bureau Federation, Inc., Montana

Farm Bureau Federation, Nebraska Farm Bureau Federation,

New Hampshire Farm Bureau Federation, Inc., New York

Farm Bureau, Inc., North Dakota Farm Bureau, Oregon Farm

Bureau Federation, Pennsylvania Farm Bureau, Rhode Island

Farm Bureau Federation, Inc., and the South Carolina Farm

Bureau Federation, are constituent members of AFBF,

representing the interests of farmers and ranchers in their

respect’ve states.

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

other person or entity other than amici, their members or counsel have

made a monetary contribution to the preparation or submission of

3

Farm Bureau’s farmer and rancher members produce

virtually every agricultural commodity produced commer-

cially 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 and ranch efficiently, and, in some instances,

have eliminated their ability to farm and ranch altogether.

The protection of wetlands under Section 404 of the CWA

poses one of the more onerous regulatory problems produc-

tion 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 most controversial, complex and conten-

tious program. Its application and misapplication to farms

and farming have played a key role in its evolution.

Farm Bureau has a direct interest in the outcome of the

instant case. Farm Bureau has followed the wetland pro-

tection evolution for nearly three decades and watched it take

on a life of its own as it marched relentlessly 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 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 courts, have

been happy to cooperate in expanding the reach of the Section

404 wetlands program.’ The Ninth Circuit has now expanded

? A prime example of the Corps willingness to interject itself into

matters of local land use regulation is the situation which gave rise to this

Court’s decision in Solid Waste Agency of Northern Cook County v. U.S.

4

the reach of Section 404 regulatory jurisdiction to activities

that Congress clearly never intended to be regulated.

Farm Bureau’s farmer and rancher members have been

severely restricted in the productive use of their farm and

ranch lands by the Ninth Circuit’s crabbed interpretation of

Section 404(f) of the Clean Water Act (CWA)—an inter-

pretation that eviscerates the Congressional exemption of

normal farming practices from the burdens of the CWA’s

Section 404 permit program. The Ninth Circuit's construc-

tion 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 tarming activities to substantial penalties.

Farm Bureau urges this Court to reverse the Ninth Circuit’s

decision to correct its unjustified narrowing of a legislative

exemption expressly intended to shield farmers and ranchers

from excessive entanglement with overzealous bureaucratic

agencies.

STATEMENT

Petitioner, Borden Ranch, located near Sacramento, Cali-

fornia, was fined $1.5 million at the behest of the U.S. Army

Corps of Engineers (Corps) for deep plowing agricultural

lands, that contained wetlands and had been used to grow

Corps of Eng’rs., 531 U.S. 159 (2001). There the Corps lent its federal

regulatory powers to opponents of a proposed solid waste landfill to

override state and local approvals therefor by finding jurisdictional wet-

lands to exist under its overly broad “migratory bird rule.” Given the

Corps’ propensity to become involved in local land use regulation today,

one is given cause to wonder if the instant case isn’t the result of the

Corps lending its federal regulatory powers under Section 404 to the side

Over Napa Vineyards.”

5

forage crops, to prepare the soil for higher value, deep rooted

crops. The Corps asserted jurisdiction over this plowing

under Section 404 of the Clean Water Act (CWA).

A 2 to 1 majority of the Ninth Circuit upheld the Corps’

assertion of Section 404 jurisdiction ruling that deep plowing

resulted in a “discharge” (plowing) of “pollutants” (plowed

native soil) from a “point source” (the plow). In so ruling, the

Ninth Circuit erroneously rejected, among others, petitioner's

argument that its plowing activities were exempt from

regulation under the provisions of Section 404(f) which

expressly exempt “normal farming . . . and ranching activities

such as plowing.” The Ninth Circuit erroneously ruled that

the so-called “recapture” provision of Section 404(f) can

make “even normal plowing” and “any farming activity”

regulable when it “changes a wetland’s hydrological regime.”

Dissenting Judge Gould would have correctly held “that

the return of soil in place after deep plowing” does not pro-

duce a regulated “discharge” because it does not involve any

“addition” of material to the site. He would have correctly

held that the “farmer exemptions” apply to deep plowing

even assuming for sake of argument that it did produce a

regulated “discharge.” Judge Gould stated that the “crux of

this case is that a farmer has plowed deeply to improve his

farm property to permit farming of fruit . . . more profitable

than grazing” and that farmers have engaged in such

agricultural activities and pursuits “from the becinning of

our nation.”

Farm Bureau submits that Congress in the CWA never

intended that plowing or any other normal farming activity on

agricultural lands containing wetlands would fall within the

scope of federal Section 404 regulatory jurisdiction and

penalties. To the contrary, Congress clearly confirmed this

intent in the broad “normal farming” exemption provisions of

Section 404(f).

6

Neither plowing nor any other normal farming activity was

a regulatory issue under Section 404 until the Corps made it

one through exaggerated statements of potential regulatory

impacts made for the purpose of gaining political support for

limiting its jurisdictional responsibility to traditionally

navigable waters. The Corps was initially reluctant to extend

its new dredge and fill regulatory authority under Section 404

of the Federal Water Pollution Control Act Amendments of

1972 (FWPCA) beyond traditionally defined navigable

waters, such as lakes, large rivers and intercoastal waterways.

Stine, Regulating Wetlands in the 1970s, Journal of Forest

History, April 1983, at 65. Senior Corps officials were

convinced that Congress intended the Corps to so limit its

dredge and fill regulatory activities for fear that “[a] broader

interpretation of section 404 . . . would be tantamount to

federal land use control.” /d. at 66. Consequently, the Corps

was surprised and disappointed when Judge Aubrey F.

Robinson, Jr., ruled in Natural Resources Defense Coun-

cil, Inc. v. Callaway, 392 F. Supp. 685 (D.D.C. 1975)

that “navigable waters” extend to “the maximum extent per-

missible under the Commerce Clause of the Constitution” and

are “not limited to the traditional tests of navigability” and

directed the Corps to revise and expand it regulations. /d.

The Department of Justice refused to appeal and the

administration gave the Corps no policy guidance. Corps

officials realized that any challenge to the court ordered

expansion of Section 404 regulatory jurisdiction would have

to take place in the political arena. /d. at 67. On May 6,

1975, the Corps issued a news release calculated to ensure

maximum outcries over proposed regulations drafted in coop-

eration with the Environmental Protection Agency (EPA) and

environmental groups and published for public comment on

the same date. Most notably, the press release warned:

[F]ederal permits may be required by the rancher who

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

7

to deepen an irrigation ditch or plow a field, or

the mountainer who wants to protect his land against

stream erosion.

The release further 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 ruling and were concerned

that the political forces unleashed by the Corps might well

indeed lead to the overturn of the decision by Congress.

Outcries from the agricultural and forestry communities were

particularly pronounced, especially after the Secretary of

Agriculture began a campaign against the extended regu-

lations. Jd. at 68.

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

release, the Corps backtracked from its exaggerated impacts

statements by including in its regulatory definitions of

“dredged material” and “fill material” an exclusion for

“(material resulting from normal farming, silvaculture [sic],

and ranching activities, such as plowing, cultivating, seeding,

and harvesting, 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 and, thus, was excluded from regulation

under Section 404. This exclusion, among others, 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 amend-

ments to the FWPCA (which amendments also redesignated

the FWPCA as the “Clean Water Act” (CWA)).

It is important to note that Congress exempted what the

Corps, with the blessing of the EPA, had already excluded. In

8

other words, Congress said that any discharges of dredged or

fill material resulting from normal farming 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. There is nothing in the statute or

legislative history to suggest that Congress intended to no

longer treat these practices as exclusions. In fact the legisla-

tive history indicates that it was the intent of the Congress to

endorse the agencies’ exclusions and did not intend to draw a

distinction between an exemption and an exclusion.?

As the legislative record clearly indicates, Congress was

responding to the furor of its agricultural constituency when it

enacted the “normal farming” exemption in 1977. It was the

intent of Congress to put Section 404 regulatory matters back

to where they were before the Corps’ exaggerations opened

Pandora’s box in its effort to limit its jurisdictional respons-

ibilities to traditional navigable waters. Congress was

making it clear with the broad “normal farming” exemption

provisions that it never intended to regulate plowing or any

other normal farming activity under Section 404 when it

enacted the FWPCA in 1972.

The legislative record also clearly shows that the caveat

which Congress included in the so-called, but mislabeled

“recapture” provision of Section 404(f), was for the limited

> Congressman Hammerschmidt, for example, 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 discharges of dredged or fill material.”

[Emphasis added.] House debate, December 15, 1977. Report on Reso-

lution Providing for Consideration of Conference Report on H.R. 3199,

Clean Water Act of 1977, p. 351. And Senator Baker: “. . . First the

conference bill clarifies the exclusion 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... .” Senate debate, December 15, 1977. /d at 524.

9

purpose of precluding the “normal farming” exemption from

being misconstrued as authorizing the conversion of wetland

areas to agricultural uses where none could otherwise

have been undertaken. Because the farming exemption was

written so broadly, there were fears expressed by Congress’

environmental constituents that it could be construed to allow

the filling and conversion of otherwise untillable wetlands as

long as it was for agricultural purposes. Section 404(f)(2)

was added to dispel such concern. Further, it clearly was not

intended to “recapture” anything, but rather merely to

preclude the farming exemption from being used as

justification to fill and otherwise manipulate wetlands to

convert them into new agricultural lands suitable for tilling,

such as the situation involved in Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d 897 (Sth Cir. 1983), where

bulldozers and backhoes were employed not merely to plant

crops, but to perform earthmoving, excavation and ditch-

ing activities with engaged blades and shovels to dry out

water bodies.

Thus, the Ninth Circuit’s narrow construction of the “nor-

mal farming” exemption and its expansion of the “recapture”

provisions of Section 404(f) do not comport with the relevant

statutory or regulatory language, history or practical realities.

The unjustified results of the Ninth Circuit’s decision for

production agriculture are:

1. The decision drastically 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. The decision makes a farmer or rancher’s plow a

point source of pollution.

3. The decision finds that normal agricultural plowing

results in the discharge of dredge and fill pollutants.

10

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 substantial

penalty for violating the Clean Water Act.

Farm Bureau urges this Court to correct the Ninth Circuit's

errors and to restore the “normal farming” exemption to the

broad scope originally intended by Congress.

ARGUMENT

I. DEEP PLOWING IS NORMAL PLOWING

AND A NORMAL FARMING ACTIVITY

EXEMPT FROM REGULATION BY CWA

SECTION 404(f)

Congress made a deliberate policy choice when it enacted

the broadest possible exemption for normal farming activities

like plowing from regulation under Section 404. 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 construc-

tion or maintenance of . . . irrigation ditches, or the main-

tenance of drainage ditches.” 33 U.S.C. § 1344(f)(1)(A), (C).

Plowing was recognized in the exemptions as a normal

farming activity, but beyond that it was not otherwise

described in either statutory language or legislative history.

That is because it was common knowledge that plowing is a

normal farming activity and it was also commonly known

that farmers and ranchers employ many types of plowing in

the normal conduct of their production agriculture activities

that vary with location, climate, types of soils, types of crops,

developing technology and a whole host of other variables.

That is why, for instance, when the U.S. Department of

Agriculture conducts its periodic survey of the nation’s

11

agricultural resources, its lists 16 different types of plowing

(including “deep ripper”) for its interviews to use in tabu-

lating plowing activity by farmers and ranchers. See, i.e.,

Agricultural Resource Management Study (ARMS), Phase

ll—Production Practices, Interviewer’s Manual, U.S.

Department of Agriculture, National Agricultural Statistics

Service,

Nowhere is there a definition of plowing as to a particular

type of plowing, or maximum depth to which plowing may be

performed or the frequency plowing must be performed in

order to remain within the realm of a normal farming activity

that Congress intended to exempt. Similarly, nowhere is

there any inference that plowing should ever be so defined.

Normal plowing is that which farmers and ranchers employ to

meet their production agricultural needs. In other words,

normal plowing would be a matter for the agricultural

community to determine. That is why, among other reasons,

it is ludicrous and beyond the Corps or EPA’s authority to

specify depths and frequencies of exempt plowing as they did

in their December 12, 1996 Field Memorandum on “Deep

ripping.” RGL. No. 96-02, Army Corps of Engineers and

Environmental Protection Agency, December 12, 1996. The

Corps is not the arbiter of what production agriculture

activities are “normal.”

As indicated above, “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.

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

12

grape vines and fruit trees. See i.e., Restef, 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); Irrigation Management Practices To Protect

Ground Water And Surface Water Quality, State of Wash-

ington, 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 “nor-

mal” plowing activity for production agricultural purposes.

The frequency with which it is performed depends upon

matters such as the degree of compaction of the soil and the

needs of the crop to be grown. 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

13

crops or grains. Frequency is not the determining factor in.

what constitutes “normal” in production agriculture; crops,

conditions, technology and results are.

Thus, 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 exempted from Section

404 regulation.

Il. PASTURES AND FORAGE CROP LANDS ARE

ESTABLISHED AGRICULTURAL LANDS

The Ninth Circuit, rubber stamping the interpretation of

overzealous regulators, ruled that changing pasture and forage

croplands containing wetlands to vineyards and orchard was

akin to the conversion of wetland areas to agricultural uses

where none had previously existed.

Contrary to the Ninth Circuit’s holding, pastures and

forage crop lands have always been recognized as agricultural

lands. This fact was evident when the National Academy of

Science undertook its extensive study of wetland charac-

teristics and boundaries. As stated in their published report:

Agricultural wetlands are defined here as wetlands found

on agricultural lands. Agricultural lands, in turn, are

those that are intensively used and managed for food and

fiber production and from which natural vegetation has

been removed and cannot be used in making a wetland

determination. Examples include cropland, hayland, and

pasture composed of planted grasses and legumes;

14

orchards; vineyards; and areas that support wetland

crops such as cranberries, taro, watercress, and rice

(NFSAM, 1994.).

Wetlands Characteristics and Boundaries, National Academy

Press, 1995, at 158.

Further, an exarvine. of the examples of normal farming

and ranching activities .numerated 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 exemptions

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

profitable 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.

Preparatory 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 whi:n 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

15

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

example, from irrigated forage crop production and pasturing

to vineyards and orchards—would avoid the recapture pro-

vision. 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

* Of interest in this regard is a statement included by EPA in the

take

place on ‘established’ farm or forest lands. This requirement has been

deleted.”

16

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 inter-

fere with the operations of farms and ranches by requiring 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. A Legislative History of

the Clean Water Act of 1977: A Continuation of the Legis-

lative History of the Water Pollution Control Act (1978) at

1042. Yet, as the Senator stated, the 1977 amendments

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

such activities. /d. 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.

17

Il. THE NINTH CIRCUIT NEGATED THE

SECTION 404(f) NORMAL FARMING EXEMP-

TION WHEN IT RULED THAT THE “RECAP-

TURE” PROVISIONS CAN MAKE EVEN

NORMAL PLOWING AND ANY OTHER

FARMING ACTIVITY REGULABLE WHEN IT

CHANGES A WETLAND’S HYDROLOGY

The Ninth Circuit ruled that the “recapture” provisions of

Section 404(f) can make “even normal plowing” and “any

farming activity” regulable when it “changes a wetland’s

hydrological regime.” Such activities were deemed to result

in “environmental damage sufficient to constitute a regulable

redeposit” even when there is no “discharge” and “do not

involve the introduction of material brought in from some-

where else.” Borden Ranch Partnership v. U.S. Army Corps

of Eng’rs, 261 F.3d 810, 814, 815 (9th Cir. 2001).

The Ninth Circuit’s decision has rendered Congress’ legis-

lative effort to exclude plowing and other normal farming

activities from the regulatory reach of Section 404 an exercise

in futility. The Ninth Circuit has negated the carefully crafted

exemption for plowing and other normal farming activities

that Congress enacted in 1977 because most normal farming

activities and any and all plowing will result in a change to a

wetland’s hydrological regime and will, therefore, never be

exempt from Section 404 regulation.

Furthermore, contrary to the Ninth Circuit’s ruling, the

CWA makes it very plain that the existence of a “discharge”

and a “pollutant” are the critical, deciding factors that deter-

mine its reach. Section 301(a) prohibits the “discharge of any

pollutant” except as authorized by other sections of the Act.

33 U.S.C. § 1311(a). Section 404 is one such exception.

Section 404 authorizes the Corps to issue permits for the

“discharge of dredged or fill material into the navigable

waters at specified disposal sites.” 33 U.S.C. § 1344. Section

404 makes it very plain that the existence of a “discharge”

and “dredged or fill material” pollutants are critical, deciding

factors in determining its jurisdictional reach.

The Corps’ implementing regulations contain a lengthy

definition of “discharge of fill material” which provides in

pertinent part:

The term discharge of fill material means the addition of

fill material into waters of the United States . . . The

term does not include plowing, cultivating, seeding and

harvesting for the production of food, fiber, and forest

33 C.F.R. § 323.2(f).

The EPA’s and Corps regulations defining plowing also

expressly exclude this activity from regulation under Section

404 as a “non-discharge”:

Plowing means all forms of primary tillage, including

moldboard, chilsel, or wide-blade plowing, discing, har-

rowing, and similar physical means utilized on farm,

forest or ranch land for 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. (Emphasis added.)

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

33 C.F.R. 323.4(a)(1)(iiiD). The emphasized language that

plowing will never involve a discharge of dredged or fill

material first appeared in the Corps’ regulations of 1975 and

has been included in both agencies regulations since 1980.

Because of continuing disputes and remembering the

lashing it took in 1975 for daring to insinuate that Section 404

might apply to plowing, the Corps issued a guidance letter on

February 11, 1986 reminding its districts that:

Plowing for the purpose of producing food, fiber, and

forest products and meeting the definition in Section

323.4 will never involve a discharge of dredge or fill

material. Such plowing is not subject to any of the

provisions of Section 404(f) exception limitations.

Section 404(f) is applicable to those activities that do

19

involve a discharge but are statutorily exempted from the

need to obtain a permit.

RGL 86-01, Army Corps of Engineers, February 11, 1986."

No conflicting guidance to RGL 86-01 was issued until the

December 12, 1996 Field Memorandum on “deep ripping”

which guidance represented a complete reversal of the Corps’

long standing position on plowing and a direct contradiction

of it regulations.

The Ninth Circuit’s ruling upholding the Corps in this case

is in complete conflict with the “discharge” and “pollutant”

requirements of the CWA generally and Section 404 spec-

ifically. By allowing the EPA and the Corps to assume

jurisdiction over plowing and other normal farming activities

simply on the basis of their environmental effects, the Ninth

Circuit has negated the normal farming exemption provisions

of Section 404(f). The Ninth Circuit’s decision must be

reversed and the integrity of the normal farming exemption

restored to American farmers and ranchers as Congress

intended.

CONCLUSION

The judgement of the Court of Appeals should be reversed.

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

August 26, 2002

‘A copy of RGL 86-01 has been lodged with the Clerk by the

Petitior ner.