The court of appeals and the district court correctly rejected that argument. at 1406. H.R. Petitioners' deep ripping activities did exactly that. . Petitioners' characterization of their deep ripping activities is inconsistent with the district court's factual findings, and petitioners' legal argument is inconsistent with the Clean Water Act's language, structure, and purpose. Follow 4, 76-77, 78, 79-80, 82-83. "); accord EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 83-84 (1980). Rep. No. This note refers to Borden as an example of the recapture provision of the CWA being used to disqualify the deep ripping activities as normal farming activities under the farming exceptions of the CWA. The agencies properly issue such memoranda to provide guidance to their field personnel about the application of pertinent regulations to recurring factual situations. 69. Facts. See, e.g., note 4, supra.24, II. (d) Civil penalties; factors considered in determining amount, Any person who violates section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by the Administrator, or by a State,,1 or in a permit issued under section 1344 of this title by a State, or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title, and any person who violates any order issued by the Administrator under subsection (a) of this section, shall be subject to a civil penalty not to exceed $25,000 per day for each violation. Conf. Petitioners contend that the "primary purpose" of their activity was simply "to enhance and revitalize soil for planting new crops." F.lli DeCecco di Filippo Fara. App. 1329. c. Discharges associated with activities that establish an agricultural operation in wetlands where previously ranching had been conducted, represents a "change in use" within the meaning of Section 404(f)(2). The district court further held that petitioners' activities did not qualify for Section 404(f)(1)'s normal farming exemption, id. Id. ), cert. 232.3(c)(1)(i). But the RGL, which explicitly states that "[n]ot all activities involving the use of a plow, disc, or similar equipment will satisfy the definition of plowing," reiterates the definition of "plowing" set forth in 33 C.F.R. Plowing, as described above, will never involve a discharge of dredged or fill material. silviculture activities; Notes on Decisions. This category only includes cookies that ensures basic functionalities and security features of the website. Even if petitioners' deep ripping satisfied the requirements of Section 404(f)(1)(A), that activity would be subject to the "recapture" provisions of Section 404(f)(2). ongoing) farming, silviculture, or ranching operation" and that "[a]ctivities which bring an area into farming, silviculture, or ranching use are not part of an established operation." 70, converting waters of the United States into dry land, id. 1362(12)) because it did not result in the "addition" of the pollutants to the filled wetlands. Part 323, are reprinted at Add., infra, 6a-8a, and those of the Environmental Protection Agency, 40 C.F.R. Congress, however, has not provided definitions of Section 404(f)'s operative terms, such as "normal" or "plowing." at 1139. 76, 86 (W.D. 67 Fed. The courts below correctly concluded that Section 404(f)(2) does not allow that activity without a permit.33. For example, the redistribution of surface materials by blading, grading, or other means to fill in wetland areas is not plowing. * * * Intermittent drainages are basically streams or water courses with a defined bed and bank that generally transport water during and after rains." What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before. v. Linde Air Prods. In June 1993, petitioner Angelo K. Tsakopoulos, the general partner of petitioner Borden Ranch Partnership, purchased Borden Ranch, an 8348-acre ranch located in California's Central Valley, for approximately $8.3 million. Pub. at 5, 103, 104. As the district court additionally found, petitioners' practice of deep ripping "caused fill material to be discharged into 35 hydrological features," id. at 89 ("upper swale portions have been partially filled due to deep rippers plowing to the edge of the feature and depositing soil into the swale"). It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. 62,732 (1980), which were later promulgated in final form, 51 Fed. They also authorize individual States to administer their own permit programs for certain waters of the United States, 33 U.S.C. Congress refined that program through the Clean Water Act of 1977 (the 1977 Amendments), which, among other things, created the Section 404(f) exemption for "normal farming, silviculture, and ranching activities." United States v. Brace, 41 F.3d 117, 124 (3d Cir. Main Document Certificate of Word Count Proof of Service: Aug 19 2020 At the same time, petitioners attack (Br. 10, 19, 33) that the wetlands in question had been used to grow crops before they were deep ripped, but the district court made no such finding, and there is no evidence in the record that crops were grown on those areas or that they had been plowed in any way for at least a half-century before petitioners purchased them. The court of appeals also rejected petitioners' contention that redeposits from a "plow" are not discharges from a "point source." See Appellants' C.A. Pet. at 77. at 4, 83-84, 103.11 In a meeting later that month, the agencies confronted Tsakopoulos with evidence of the violations, and he "then conceded that mistakes had been made." Thus, in applying Section 404(f)(2), one must consider discharges in context, rather than isolation. Pet. The same reasoning applies here. The lower courts correctly calculated the maximum civil penalty that might be imposed in this case in accordance with Section 309(d), which authorizes a penalty not to exceed "$25,000 per day for each violation." Those activities, which, in the words of the trial court, "completely obliterated" numerous wetlands, also clearly fall outside of Section 404(f)'s exemption for normal farming activities that do not have as their purpose bringing an area of waters of the United States into a new use, changing the waters' flow or circulation or impairing their reach. Nevertheless, the court did not assess its calculated maximum civil penalty of $8,950,000 and, instead, gave petitioners the choice of paying a $1.5 million civil penalty or paying a $500,000 penalty and restoring four acres of wetlands. In particular, the district court held that petitioners' activities did not meet the regulatory description of a "normal" farming activity or the regulatory definition of "plowing." The district court also found that petitioners' deep ripping for the purpose of land use conversion resulted in discharges of dredged and fill material that impaired the flow or circulation of the wetlands and reduced their reach, to the point that they have been severely impaired or completely filled. Pet. Id. 6-9. Today’s major abortion grant in a TikTok minute. Section 404 places no limitation on petitioners' deep ripping of the many acres surrounding the wetlands. 33 C.F.R. (1) Except as provided below in paragraph (2), the term discharge of dredged material means any addition of dredged material into, including any redeposit of dredged material within, the waters of the United States. The questions presented are: 1. App. Pet. 1344. The court specifically distinguished cases such as Avoyelles and Rybachek as not involving incidental fallback, but rather redeposits that may be regulated. at 10. The following examples illustrate the damage petitioners caused: (1) "Drainage 9 is an approximately 800-foot-long intermittent drainage * * *. Congress created that exemption precisely because it recognized that even "normal" farming activities, such as ordinary "plowing," could result in the discharge of a pollutant within the meaning of the Clean Water Act. Id. Section 404(f)(1)(A) creates a limited exemption from the Section 404 permitting requirements for "normal farming, silviculture, and ranching activities" including "plowing, seeding, cultivating," and other listed farming activities. The court reasoned that, even without applying the ACCA, the crime of possessing a firearm while a felon allows a sentence of up to 120 months in prison; therefore, the court held, Borden’s 115-month sentence did not violate his due process rights. For example, the Corps' definition of "discharge of fill material" states, among other things, that "[t]he term does not include plowing, cultivating, seeding and harvesting for the production of food, fiber and forest products (See § 323.4 for the definition of these terms)." 323.2(e)). The district court correctly concluded that they were not. Tweets by @SCOTUSblog Section 404 of the Federal Water Pollution Control Act (Clean Water Act) regulates the discharge of dredged or fill material into waters of the United States. 33 C.F.R. Council, Inc., 467 U.S. 837, 844 (1984); Pet. 323.2(d)(1)(iii); 40 C.F.R. Prior to petitioners' purchase of Borden Ranch in 1993, there was no ongoing farming operation on the areas at issue in this case. at 86-92 (describing those parcels). Pet. 11-12, and those findings should not be open to further dispute here. 46-50), Section 309(d) states that a maximum penalty of $25,000 shall be imposed "per day for each violation," 33 U.S.C. Pet. 24-27). App. Based upon this experience, the agencies have concluded that, as a general matter, deep-ripping and similar practices, consistent with the descriptions above, conducted in prairie potholes, vernal pools, playas and similar depressional wetlands destroy the hydrological integrity of these wetlands. at 78. 2, 68. CWA §§ 208, 319, 33 U.S.C. 232.3(d)(4). Conversely, plowing is defined in EPA and Corps regulations [40 CFR 230 and 33 CFR 320] as "all forms of primary tillage .

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