Earthjustice Asks US Supreme Court to Protect Wetlands and Streams

Conservationist brief opposes industry efforts to weaken clean water act during its 30th anniversary year


Howard Fox, Earthjustice, 202-667-4500×203

Earthjustice today submitted a brief asking the Supreme Court to uphold the Clean Water Act against industry attempts to weaken it. Addressing one of the most crucial environmental cases on the Supreme Court’s docket this term, the Earthjustice brief opposes attempts by agricultural, mining, and roadbuilding interests to accelerate unpermitted destruction of wetlands and streams around the nation.

“Three decades after the passage of the landmark Clean Water Act, our nation continues to lose tens of thousands of acres of wetlands each year, and hundreds of miles of streams as well,” said Howard Fox of Earthjustice, attorney for the conservationists. “Industry should comply with the law and reduce the massive aquatic destruction it causes annually, instead of trying to poke holes in our premier water pollution control law during its thirtieth anniversary year.”

At issue in the case are activities on a California ranch that destroyed and damaged numerous wetlands and streams, in order to convert them to crop production. The US Army Corps of Engineers and the US Environmental Protection Agency concluded that such activity could not be undertaken without a permit, and federal district and appellate courts in California agreed.

The appellate court noted that the wetlands and streams “depend upon a dense layer of soil, called a ‘restrictive layer’ or ‘clay pan,’ which prevents surface water from penetrating deeply into the soil.” The rancher “gouge[d] through” this subsurface layer using “a procedure known as ‘deep ripping,’ in which four- to seven-foot long metal prongs are dragged through the soil behind a tractor or a bulldozer.” The Corps indicated that the rancher had “essentially poked a hole in the bottom of protected wetlands. That is, by ripping up the bottom layer of soil, the water that was trapped can now drain out.” Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810, 812 and 815 (9th Cir. 2001).

According to the appellate court, “activities that destroy the ecology of a wetland are not immune from the Clean Water Act.” To the contrary, “the intent of Congress in enacting the [Clean Water] Act was to prevent conversion of wetlands to dry lands,” and the activities on the California ranch “were not intended simply to substitute one wetland crop for another; rather they radically altered the hydrological regime of the protected wetlands.” Id. 814-16.

A wide range of industry interests are asking the Supreme Court to reverse this ruling. Representing proponents of agriculture, as well as of mining, roadbuilding, homebuilding, and other infrastructure projects, they claim they should be allowed to damage and destroy wetlands and streams without a permit. Also, they ask the Court to reject the interpretation of the Clean Water Act underlying a key 2001 wetland and stream protection rule, despite support for the rule by both the previous administration and the present one. (See

“Protection of wetlands is vital to our nation’s future. These crucial aquatic areas filter toxic pollutants from our water, store water that would otherwise flood downstream areas–and of course provide habitat for fish, birds, and other wildlife,” said Julie Sibbing, Legislative Representative with the National Wildlife Federation. “Congress has repeatedly recognized the need for protection of these key areas, but unfortunately industry still hasn’t gotten the message.”

The friend-of-the-court brief is being filed today by Earthjustice on behalf of National Wildlife Federation, Sierra Club, Natural Resources Defense Council, and National Audubon Society. Oral argument in Borden Ranch Partnership v. U.S. Army Corps of Engineers, U.S. Sup. Ct. 01-1243, will be heard on December 10, 2002. A decision is expected by Spring 2003.

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