Wetlands: Supreme Court hears arguments on Clean Water Act jurisdiction
December 11, 2002
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
the destruction of wetlands, saying dirt and rocks pushed into the
from outside, and even material moved around within the wetland could
considered pollutants. That interpretation is being challenged, however,
California landowner Angelo Tsakopoulos, who has been fined about
million for using a "deep ripper" to plow wetlands on his
Representing Tsakopoulos, attorney Timothy Bishop argued before the
that Congress never intended federal agencies to consider dirt, mud
churned up within a wetland to be considered the addition of a pollutant.
even if those substances were considered pollutants, the CWA would
in this case because Congress exempted normal farming activities from
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
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
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
While courts have found bulldozers to be considered point sources
purpose of the CWA, Bishop said a plow should not be considered a
source because it lacks certain qualities. "The things that are
point sources all have certain characteristics," he said. "They
material, and they convey it."
Justice Ruth Bader Ginsberg countered that although the plow might
anything new to the wetland, it transforms material that was not formerly
pollutant -- the rocks and clay below the wetland -- into a pollutant
mixing it into the waterway. And Justice Stephen Breyer said even
intent of a plow is not to move material from place to place, it does
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
times. But even if the farmer had not dragged upland material into
wetland, the U.S. EPA still considers the deep ripping to be the addition
a pollutant because the plow, with its seven-foot-long tines, pulls
from the wetland's underlying clay pan up to the surface. Since the
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
pollutant," he said.
Minear likened deep plowing to dredging, an activity for which EPA
permits, since both move material about within a waterway. "It
that Congress would exclude the most common form of dredging, which
take material from a waterway and redeposit it in another area,"
Still, some justices indicated such a philosophy could be taken too
"People will worry that next you'll say they can't rake their
it involves moving sand around," Breyer said. Minear replied
that EPA is only
concerned with environmental damage, but that did not satisfy Justice
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
If the justices, who will rule on the case before June, find that
within a waterway is not considered a pollutant when redistributed
same waterway, the consequences could potentially be far-reaching.
could allow mining activities that remove material from a wetland
adding anything and development projects that move dirt around within
wetland could be freed from the permitting process.
Farming groups, miners, foresters, developers and road builders have
briefs in the case saying the wetlands policies of federal agencies
exceeding the authority granted them by the CWA. Likewise, environmentalists
have filed briefs on behalf of the government, saying a ruling in
Tsakopoulos would open the door to wholesale wetlands destruction
But the court's ruling could also lead to stronger protections for
Circuit courts have issued conflicting opinions on whether the incidental
spilling of dredged material into protected waterways constitutes
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
under the normal farming exemption.
Minear countered that a deep ripper is not a normal plow, but rather
three-ton machine with seven-foot-long blades. And he said the normal
exemption does not apply when a landowner converts his land to other
Tsakopoulos used the deep ripper to convert pastureland to orchards
According to Bishop, changing land use from forage crop to fruit
not constitute a change in use.
Tsakopolous is also challenging the fine he was issued by EPA --
set at $8,950,000, but later reduced by a trial court to $1.5 million
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
violated the law.
Tsakopoulos bought the 8,348-acre ranch in 1993 for $8.3 million
intent to convert parts of it to vineyards and orchards, uses for
ripping is necessary. The same year, the U.S. Army Corps of Engineers
jurisdiction over swales and drainages as waters of the United States
informed Tsakopoulos he needed a permit before deep ripping those
which totaled about two acres, according to Minear.
In 1993, 1994, 1995 and 1996 Tsakopoulos deep ripped wetlands without
permit. By 1996, he had sold 4,036 acres of deep-ripped property for
million, according to court records. The same year, EPA filed a ruling
Tsakopoulos had violated the CWA, and the landowner then sued the
agencies, saying they had overstepped their jurisdiction. The district
and circuit court both ruled in favor of the government.
Supreme Court Justice Anthony Kennedy, who practiced and taught law
Sacramento and other parts of California for more than 20 years, has
himself, presumably because he was acquainted with the plaintiff.
event of a 4-4 tie, the circuit court ruling will stand.