## Facts

- A landowner purchased an 8,400-acre California ranch historically used as cattle rangeland and sought to convert it to vineyards and orchards.
- The property contained wetland features, including swales, intermittent drainages, and vernal pools, sustained by a subsurface restrictive clay layer that limited water percolation.
- To enable deeper-rooted crops, the landowner used “deep ripping,” dragging long metal prongs (four to seven feet) through soil to break the restrictive layer.
- Federal agencies concluded that deep ripping in certain wetlands caused soil to be excavated and redeposited within wetlands, constituting an unpermitted discharge of dredged or fill material into waters subject to the Clean Water Act (CWA).
- The agencies issued administrative directives to stop the activity and required restoration; the landowner challenged federal authority and asserted agricultural exemptions.
- The United States sought injunctive relief and civil penalties for CWA violations.
- After trial, the district court found CWA violations for deep ripping in wetland swales and vernal pools, imposed civil penalties, and granted injunctive relief; the landowner appealed.

## Issues

1. Whether deep ripping in wetlands constitutes a “discharge of a pollutant” (dredged or fill material) from a point source requiring a CWA § 404 permit.
2. Whether the swales and the vernal pools were “waters of the United States” within CWA jurisdiction, including the effect of SWANCC on isolated intrastate waters.
3. Whether statutory or regulatory agricultural exemptions for normal farming or ranching activities barred § 404 permitting for deep ripping used to convert rangeland to orchards and vineyards.
4. Whether civil penalties had to be adjusted if some affected areas were outside CWA jurisdiction.

## Decision

- The Ninth Circuit affirmed that deep ripping in jurisdictional wetland swales was a discharge of pollutants requiring a § 404 permit.
- The court held that the ripping implement and associated machinery could qualify as a point source when it excavates and redeposits material in wetlands.
- The court reversed CWA liability for deep ripping in isolated vernal pools because, after SWANCC, federal jurisdiction could not be sustained on the asserted theory for isolated intrastate waters.
- The court rejected the claimed agricultural exemption because the conduct was a conversion to a new agricultural use that fundamentally altered wetland hydrology rather than an ongoing, established farming operation.
- The court remanded for recalculation of civil penalties consistent with liability limited to the jurisdictional swales.

## Legal Principles

- A CWA “discharge of a pollutant” includes adding dredged or fill material to jurisdictional waters; excavation followed by redeposit of material within the wetland can qualify as an addition.
- A point source can include mechanized equipment that constitutes a discernible and discrete conveyance when it moves and redeposits material in regulated waters.
- After SWANCC, isolated, nonnavigable, intrastate waters are not within CWA jurisdiction on theories rejected by SWANCC; jurisdiction must rest on a valid regulatory basis connecting the waterbody to covered waters.
- Agricultural exemptions for normal farming or ranching do not extend to activities that convert land to a new use or bring new areas into production by materially altering wetland conditions.

## Conclusion

The Ninth Circuit held that deep ripping that excavates and redeposits soil within jurisdictional wetland swales requires a CWA § 404 permit and is not protected as normal farming when used to convert rangeland into orchards and vineyards, but it vacated liability for isolated vernal pools under SWANCC and required penalty recalculation.


Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d 810 (9th Cir. 2001)