Wetlands: Supreme Court hears arguments on Clean Water Act jurisdiction

December 11, 2002

By Damon Franz, Greenwire staff writer

Eight Supreme Court justices pondered the question yesterday of whether
farmers, developers and others might be able to plow or excavate wetlands
without a permit as long as they do not add an outside pollutant.

The Clean Water Act (CWA) prohibits the "discharge of any pollutant" into waters of
the United States, and federal agencies have used that language to prohibit
the destruction of wetlands, saying dirt and rocks pushed into the wetland
from outside, and even material moved around within the wetland could be
considered pollutants. That interpretation is being challenged, however, by
California landowner Angelo Tsakopoulos, who has been fined about $1.5
million for using a "deep ripper" to plow wetlands on his property.

Representing Tsakopoulos, attorney Timothy Bishop argued before the court
that Congress never intended federal agencies to consider dirt, mud and rocks
churned up within a wetland to be considered the addition of a pollutant. And
even if those substances were considered pollutants, the CWA would not apply
in this case because Congress exempted normal farming activities from the
act.

Much of Bishop's argument before the justices centered on whether a plow can
be considered a "point source" and whether material from within a waterway
can constitute the "addition of a pollutant" if the are redistributed within
the same waterway.

In order for the government to find a violation, "the pollutant must be fill
or dredge material and it must come from a point source," Bishop told the
justices. "We don't think a plow is a point source. But even if it is, there
is no addition of a pollutant because nothing is coming in to the wetland."

While courts have found bulldozers to be considered point sources for the
purpose of the CWA, Bishop said a plow should not be considered a point
source because it lacks certain qualities. "The things that are considered
point sources all have certain characteristics," he said. "They confine
material, and they convey it."

Justice Ruth Bader Ginsberg countered that although the plow might not add
anything new to the wetland, it transforms material that was not formerly a
pollutant -- the rocks and clay below the wetland -- into a pollutant by
mixing it into the waterway. And Justice Stephen Breyer said even though the
intent of a plow is not to move material from place to place, it does have
that effect, and could thus be classified as a means of conveyance.

According to Bishop, there were only three instances in which Tsakopoulos'
plow dragged material from the upland down into the wetland.

Assistant to the Solicitor General Jeffrey Minear disagreed, saying
Tsakopoulos actually imported material into the wetland with his plow 33
times. But even if the farmer had not dragged upland material into the
wetland, the U.S. EPA still considers the deep ripping to be the addition of
a pollutant because the plow, with its seven-foot-long tines, pulls material
from the wetland's underlying clay pan up to the surface. Since the agency
considers the top of the clay pan to be the wetland's vertical boundary,
material from the clay pan can be considered the addition of a pollutant.

Justice John Paul Stevens indicated he found this argument somewhat
convincing. "At least the material from the bottom was the addition of a
pollutant," he said.

Minear likened deep plowing to dredging, an activity for which EPA requires
permits, since both move material about within a waterway. "It is unlikely
that Congress would exclude the most common form of dredging, which is to
take material from a waterway and redeposit it in another area," he said.

Still, some justices indicated such a philosophy could be taken too far.
"People will worry that next you'll say they can't rake their beach because
it involves moving sand around," Breyer said. Minear replied that EPA is only
concerned with environmental damage, but that did not satisfy Justice Antonin
Scalia. "I don't think Congress wanted homeowners to be at the mercy of a
benign agency that says, 'There, there. We won't come after you for raking.'"

If the justices, who will rule on the case before June, find that material
within a waterway is not considered a pollutant when redistributed within the
same waterway, the consequences could potentially be far-reaching. The ruling
could allow mining activities that remove material from a wetland without
adding anything and development projects that move dirt around within a
wetland could be freed from the permitting process.

Farming groups, miners, foresters, developers and road builders have filed
briefs in the case saying the wetlands policies of federal agencies have been
exceeding the authority granted them by the CWA. Likewise, environmentalists
have filed briefs on behalf of the government, saying a ruling in favor of
Tsakopoulos would open the door to wholesale wetlands destruction across the
country.

But the court's ruling could also lead to stronger protections for wetlands.
Circuit courts have issued conflicting opinions on whether the incidental
spilling of dredged material into protected waterways constitutes a
discharge. The justices' decision could clarify those rulings.

In a lesser issue, the court will also decide whether deep ripping
constitutes a "normal farming activity" that should be exempt from the CWA.
Bishop told the judges deep ripping is a form of plowing, which always falls
under the normal farming exemption.

Minear countered that a deep ripper is not a normal plow, but rather a
three-ton machine with seven-foot-long blades. And he said the normal farming
exemption does not apply when a landowner converts his land to other uses.
Tsakopoulos used the deep ripper to convert pastureland to orchards and
vineyards.

According to Bishop, changing land use from forage crop to fruit crop does
not constitute a change in use.

Tsakopolous is also challenging the fine he was issued by EPA -- originally
set at $8,950,000, but later reduced by a trial court to $1.5 million and
then again to $500,000 after he agreed to restoration work. While EPA says it
can charge $25,000 for each pass Tsakopolous made with the ripper,
Tsakopolous insists the agency can only charge $25,000 for each day he
violated the law.

Tsakopoulos bought the 8,348-acre ranch in 1993 for $8.3 million with the
intent to convert parts of it to vineyards and orchards, uses for which deep
ripping is necessary. The same year, the U.S. Army Corps of Engineers claimed
jurisdiction over swales and drainages as waters of the United States and
informed Tsakopoulos he needed a permit before deep ripping those areas,
which totaled about two acres, according to Minear.

In 1993, 1994, 1995 and 1996 Tsakopoulos deep ripped wetlands without a
permit. By 1996, he had sold 4,036 acres of deep-ripped property for $16.2
million, according to court records. The same year, EPA filed a ruling that
Tsakopoulos had violated the CWA, and the landowner then sued the federal
agencies, saying they had overstepped their jurisdiction. The district court
and circuit court both ruled in favor of the government.

Supreme Court Justice Anthony Kennedy, who practiced and taught law in
Sacramento and other parts of California for more than 20 years, has recused
himself, presumably because he was acquainted with the plaintiff. In the
event of a 4-4 tie, the circuit court ruling will stand.

http://www.eenews.net/Greenwire/Backissues/121102/121102gw.htm#14