Jan. 9, 2003 -- On Dec. 16 the U.S. Supreme Court issued a 4-4 decision in Borden Ranch Partnership v. US Army Corps of Engineers, which arose under Section 404 of the Clean Water Act (CWA) and an activity known as "deep ripping."
Because the Court was equally divided, the judgment of the lower court, which had ruled in favor of the Government, was affirmed.
The case presented to the Supreme Court three key three legal issues related to (1) whether deep ripping involves the "addition" of "pollutants" from a "point source;" (2) if so, whether it was exempt from permit requirements under CWA Section 404(f); and (3) the methodology used to calculate the penalty amount.
The case arose from an enforcement action involving the use of deep ripping to convert ranch land to vineyards and orchards without a Section 404 permit. Petitioner was warned a number of times that this activity required a permit but continued nonetheless. "Deep ripping" is a process in which bulldozers drag rippers, consisting of four-foot to seven-foot metal prongs, through the earth to break up a restrictive clay layer and disgorge earth, rock, sand, and biological material behind the ripper.
When, as here, deep ripping equipment passes through a wetland, it moves soil from adjoining uplands into the wetland and also brings up substrate into the wetland. It has the effect of draining and filling the wetland.
The Government alleged this activity resulted in a discharge of dredged and/or fill material into various swales (a type of wetland) which were adjacent to waters of U.S. The district court had ruled that the government had authority under the CWA to regulate such deep ripping, and the court of appeals had affirmed (261 F.3d 810 (9th Cir., 2001)).
As is the practice when the Supreme Court is equally divided, their opinion merely indicates the judgment of the court below is affirmed, and does not address or discuss the substance of the issues presented, nor does it serve as legal precedent.
