Farmers could violate Clean Water Act by simple act of plowing

U.S. Water News

April 2000

A California farmer, rancher, and developer has been ordered by a federal judge to pay a fine of up to $1.5 million for "deep plowing" his land. The judge ruled that the act of deep plowing violated sections of the federal Clean Water Act. This is a dangerous precedent to set, that a farmer's plow, used as the most basic of farm tools, could be designated an instrument of water pollution.

U.S. District Judge Garland E. Burrell, Jr., ruled that Angelo Tsakopoulos committed 358 violations of federal environmental law and gave Tsakopoulos the option of paying the entire amount or paying $500,000 and financing an environmental restoration project on his ranch. Burrell said Tsakopoulos must either pay a stiff civil penalty or make appropriate restoration for "depriving the nation of wetlands that support wildlife and endangered species." Tsakopoulos vowed to appeal but said he will gladly pay for the restoration project on four acres on his ranch while his case makes its way through the 9th U.S. Circuit Court of Appeals.

The civil case pits government agencies that argue deep ripping destroyed sensitive wetlands and violated federal law against Tsakopoulos, who contends regulators have no right to tell farmers how and what to plow.

Edmund Brennan, an assistant U.S. attorney, said he was especially pleased "that the amount of the penalty is sufficient to take the profit out of the violations. People should take from this result the lesson that it costs more to violate the Clean Water Act than to comply with it," he said.

Tsakopoulos said the primary issue, to him, is not money or acreage -- it's principle. Echoing a promise he made when he first went to court in the spring of 1997, Tsakopoulos declared his unshakable resolve to make the lawsuit "a national test case" that he will "take to the U.S. Supreme Court if necessary. The idea that a farmer's plow is a point source of pollutants is wrong," he said.

Tsakopoulos used deep ripping -- a form of plowing used to get beneath a hard, relatively shallow layer of soil -- to convert his pasture to vineyards and orchards. Specifically, Judge Burrell found that Tsakopoulos:

Violated the Clean Water Act by allowing deep rippers, without a permit, to "plow and cause fill to be deposited into" environmentally sensitive wetlands -- swales and intermittent drainages -- from 1995 through 1997.

Violated the federal Act by allowing discing of a vernal pool that was probably a home for fairy shrimp, a threatened species under the Endangered Species Act, before it was plowed.

Burrell found that Tsakopoulos' machinery caused dirt to be discharged into 28 swales or intermittent drainages and one vernal pool that, by their nature, are legally waters of the United States. A swale is a sloped seasonal wetland containing aquatic plants. Intermittent drainages transport rainwater. And vernal pools, which serve as wildlife habitat, are low points on the landscape that collect such rainwater.

In his ruling, Burrell noted the gravity of Tsakopoulos's conduct -- particularly his "lack of earnest effort to comply with the Act" -- but said a four acre restoration project would best serve public policy and negate the need for the full $1.5 million fine. "Reaping such benefits at the expense of ... rare federal wetlands is intolerable under the Act," and calls for "a significant penalty to achieve ... deterrence," Burrell wrote.

In an unprecedented ruling last year, Burrell found that plowing -- the most basic of farming activities -- may, in certain instances, run afoul of the Act. The judge rejected Tsakopoulos' challenge to the power of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to regulate "deep ripping" on his 8,348 acre Borden Ranch 10 miles east of Galt.

The EPA's counterclaim against him for water law violations -- the first action of its kind in the nation -- has been closely watched by farming interests nationwide.

Clearly, when Congress framed the Clean Water Act it had no intention of dragging farmers into court for polluting water because they used a plow. The court certainly has the right to interpret law, but it is absurd to think that the federal judicial system is going to take on the nation's farmers in a legal battle over point source pollution. The 9th U.S. Circuit Court of Appeals should reverse this ruling and bring some sense back to the enforcement of the Clean Water Act.