Wetlands Protections Upheld by U.S. Supreme Court

By Cat Lazaroff

WASHINGTON, DC, December 17, 2002 (ENS) - The U.S. Supreme Court has upheld a lower court decision aimed at protecting wetlands from agricultural operations. In a divided decision, the court reaffirmed a half million dollar fine against a California farmer who converted wetlands into vineyards and orchards without obtaining a federal pollution permit.

At issue was whether the deep ripping of protected wetlands for farming purposes was a violation of the Clean Water Act. After hearing oral arguments in the case last week, the court voted 4-4 on Monday, with one justice abstaining from the vote, to support a federal appeals court decision levying a $500,000 fine against Angelo Tsakopoulos.

draining wetlands

Millions of acres of wetlands have been drained for agriculture across the U.S. (Photo courtesy EPA)
Justice Anthony Kennedy did not participate in the vote because he is an acquaintance of Tsakopoulos. Under court rules, in the case of an evenly divided vote, the appellate court ruling is affirmed.

"Today's ruling by the Supreme Court is a victory for clean water," said Ed Hopkins, who directs an environmental quality program at the Sierra Club, one of several groups who filed briefs supporting the government's case.

"Polluters wanted to create a huge loophole in the nation's protections of wetlands and streams, and the Supreme Court said 'no'," Hopkins added.

The case brought by Tsakopoulos and the Borden Ranch Partnership against the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency (EPA) was closely watched for its potential impacts on the authority of the federal agencies under the Clean Water Act.

wetland

Wetlands often lose out to the need to maximize crop acreage. (Two photos courtesy U.S. Fish and Wildlife Service)
The Corps and the EPA had concluded that conversion of wetlands on private land to agricultural uses could not be undertaken without a permit. Tsakopoulos was ordered to pay $500,000 in compensation, and restore four acres of wetlands, a decision supported by federal district and appellate courts in California.

The problems on 8,400 acre Borden Ranch near Sacramento started almost 10 years ago, when Tsakopoulos began to prepare portions of the land for orchards and vineyards. Part of the property was covered with seasonal wetlands known as swales and vernal pools, which are protected under the Clean Water Act.

Believing his activities were exempt from the Act under special rules that apply to farm plowing, beginning in 1993, Tsakopoulos used deep rippers - long prongs that puncture soil to a depth of about six feet (two meters) - to prepare the soil for planting. In 1994, the Corps gave him a "retrospective permit" covering land that had already been ripped, but the agency ordered Tsakopoulos not to use the deep rippers in vernal pools.

Documents filed by the government charge that Tsakopoulos violated that order in 1995 and 1997 when he used deep rippers on protected land. Tsakopoulos than filed a lawsuit challenging the Corps and EPA's jurisdiction over deep ripping.

Tsakopoulos's attorneys argued that he was "wrongly and excessively" punished, and the case was supported by a wide range of industry interests who filed briefs supporting Tsakopoulos. Representing proponents of agriculture, as well as of mining, road building, homebuilding, and other infrastructure projects, they claimed they should be allowed to damage or destroy wetlands and streams without a permit.

filled wetland

The wetland on this farm has been drained and filled
Development groups also asked the Court to reject the interpretation of the Clean Water Act underlying a key 2001 wetland and stream rule that protected wetlands from dredging, ditching and mechanized land clearing. Both the Clinton and Bush administrations have supported this rule.

If the Supreme Court had overturned the lower court rulings, it could have set a precedent exempting a wide variety of activities from Clean Water Act permitting requirements. In upholding the appellate court ruling, the Supreme Court offered tacit support for the EPA's interpretation of the Clean Water Act and its authority to bar activities that could harm wetlands.

Several conservation groups filed friend of the court briefs in the case, asking the Supreme Court to uphold the Act's authority over a variety of activities, including agriculture, mining, logging and road building.

"The Supreme Court declined industry's invitation to open major loopholes in the Clean Water Act," said Howard Fox of Earthjustice, the attorney who represented four conservation groups who intervened in the case. "Industry should start focusing its efforts on protecting our precious wetlands and streams, instead of seeking special breaks from the courts."

wetlands

Intact wetlands can filter runoff from crops and livestock paddocks, protecting water quality. (Photo by Ron Nichols, courtesy U.S. Department of Agriculture)
Earthjustice filed a friend-of-the-court brief on behalf of National Wildlife Federation, Sierra Club, Natural Resources Defense Council, and National Audubon Society.

After the ruling, the conservation groups expressed relief at the Court's support, but said they were still concerned about the tenuous nature of the laws that govern wetlands protection. Had Justice Kennedy not recused himself from the case, the Court might have sided with the development interests.

"The agricultural, mining, and roadbuilding industries were looking for a way to pollute whenever they wanted, even when their projects foul our waters and aggravate flooding," said the Sierra Club's Hopkins. "We hope these industries will accept some responsibility and avoid harming our waterways, rather than continue trying to whittle away clean water protections."