ELR Citation: ELR 20011
No(s). 00-15700 (9th Cir. Aug 15, 2002)

The court first holds that deep-ripping, when undertaken in protected wetlands, can constitute a CWA §301(a) prohibited discharge of a pollutant into a wetland. Although deep-ripping redeposits materials originally present in the wetland, activities that destroy the ecology of a wetland are not immune from the CWA because they do not introduce material brought in from somewhere else. By deep-ripping a protected wetland, the farmer poked a hole in the bottom layer of the wetland, thereby allowing water that was trapped in the wetland to drain out. No new material was added to the wetland, but a pollutant was added when the intact soil holding the wetland in place was wrenched up, moved, and redeposited. Likewise, a tractor engaged in deep-ripping qualifies as a CWA point source. Moreover, the farmer does not qualify for the CWA §404 farming exception to the CWA because activities that convert wetlands into a use to which it was not previously subject do not qualify for the exception. The farmer's converting ranch land into orchards and vineyards clearly does not fall within the exception. Further, there is ample evidence that the farmer conducted deep-ripping in protected wetlands. The court, however, holds that the farmer's violations for deep-ripping in isolated vernal pools must be reversed because under Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001), CWA jurisdiction no longer extends to isolated wetlands such as vernal pools. The court also holds that although the district court properly calculated the penalty on a per violation basis, the penalty must be remanded for recalculation because the original calculation included penalties for discharges to vernal pools over which the Corps and EPA no longer have jurisdiction.

Counsel for Plaintiffs
Arthur F. Coon
Miller, Starr & Regalia
1331 North Carolina Blvd., Walnut Creek CA 94596
(925) 935-9400

Counsel for Defendants
Sylvia Quast
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Hawkins, J. Before Canby, J., with Gould, J., dissenting.