Wine, Wetlands, and Clean Water
Slade, David C., The World and I
California is a promised land for wines--and kegs of money can be made by vineyards and wineries. In 1993, a Sacramento real estate developer, Angelo Tsakopoulos, wanted to break in to this market and purchased the Borden Ranch, an 8,400-acre spread in California's Central Valley. Until then, the property had been a cattle ranch, embracing vast stretches of rangeland and large areas of wetlands known as swales. The land was beautifully situated for growing grapes, and Tsakopoulos plowed ahead with his plan to turn Borden Ranch into a vineyard.
He did so quite literally. Because grapevines have deep root systems, the rangeland had to be prepared by a "ripper" whose four- to seven- foot-long metal prongs are pulled through the soil by a tractor or bulldozer. This procedure is commonly called deep ripping. In the fall of 1993, Tsakopoulos started deep ripping the land, including some of the wet areas.
Swales are sloping wetlands where shallow water flows slowly through aquatic vegetation, providing habitat for wildlife, a natural water- filtering process, and flood and erosion control. They are formed by an impermeable layer of clay, known as claypan, which lies two to four feet below the surface and prevents rainwater from filtering further into the ground. As the water flows with the slope of the land, it creates this type of wetland.
By deep ripping, Tsakopoulos gouged through the claypan, destroying the layer's impermeability. Rainwater began to seep deep into the ground, destroying the swales. At this point, the Army Corps of Engineers stepped in and told Tsakopoulos that he had to have a Clean Water Act permit before he could alter the wetlands.
The Clean Water Act prohibits the discharge of pollutants into the "waters of the United States," a term that includes most wetlands, unless a 404 permit (from Section 404 of the Clean Water Act) is obtained from the Army Corps of Engineers. The Corps demanded that Tsakopoulos stop deep ripping in the swales and apply for a 404 permit before proceeding.
At first, he agreed, and the Corps issued him a 404 permit allowing deep ripping in the uplands but not across the swales. In 1994 and 1995, Tsakopoulos resumed deep ripping through large areas of the swales. The Corps issued two cease and desist orders, but he disregarded both of them.
In 1996, with the Corps threatening hefty fines, Tsakopoulos finally agreed to set aside 1,368 acres of Borden Ranch in a preserve to protect the swales. The next spring, however, he began deep ripping through the preserved acres. When a third order was issued, Tsakopoulos responded by filing suit in federal court against the Corps, challenging its authority to regulate the matter.
Tsakopoulos argued that deep ripping was exempt from the 404 permit requirement, basing his reasoning on another Section 404 provision that exempts "normal farming, silviculture, and ranching activities such as plowing" from the requirement.
The Corps rebutted by pointing to yet a further 404 provision that "recaptured" an otherwise exempt farming activity if it brought "an area of the navigable waters into a [new] use. …