Borden Ranch Partnership v. U.S. Army Corps of Engineers
Plaintiff filed suit to challenge the authority of the Army Corps of Engineers and the Environmental Protection Agency to regulate ”deep ripping” in protected wetlands under the Clean Water Act (CWA). The United States counterclaimed, seeking injunctive relief and civil damages for Borden’s alleged violation of the CWA. The district court found for the United States. The court of appeals affirmed, holding (1) that deep ripping constitutes a discharge of a pollutant into wetlands; (2) that deep ripping is not exempt from regulation under the farming exceptions to the CWA; and (3) that each individual pass of the deep ripper could be counted as a violation of the CWA.
Questions Presented:
1. Whether deep ripping, an activity that disgorges and redeposits soil in wetlands and waters of the United States to convert those areas to dry land, may result in a discharge of a pollutant for
purposes of the CWA.
2. Whether petitioners' deep ripping of a wetland qualified for the conditional exemption from regulation under Section 404(f) of the CWA.
3. Whether each violation of the CWA should be counted in determining the maximum civil penalty under Section 309(d) of the CWA.
