U.S. Supreme Court: American Farm Bureau challenges plowing decision

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PARK RIDGE, Ill. – The American Farm Bureau Federation has filed a friend-of-the-court brief in the U.S. Supreme Court on behalf of a California farming operation.

The Borden Ranch orchard and vineyard has been prevented from expanding by federal agencies that claim routine deep plowing is not a “normal farming activity.” The Supreme Court is being asked to grant a review of this earlier decision from the Ninth Circuit Court of Appeals.

The Borden Ranch orchard and vineyard, located in Sacramento County, Calif., has been prohibited from planting additional vineyards on its private farmland due to faulty interpretations of federal wetlands regulations and of allowances for normal farming activities.

The U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have ruled that routine deep plowing, required to plant the vineyards, “pollutes” the temporary wetlands with dirt. The agencies claim, therefore, that a permit is required.

According to the Farm Bureau brief, Section 404 of the Clean Water Act (CWA), which governs wetlands, clearly contains an “exemption of normal farming practices from the burden of the… permit program.”

The lower court ruling, according to the Farm Bureau, “expands the reach of the CWA far beyond what Congress intended, at best creating uncertainties about permissible conduct and at worst exposing farmers and ranchers pursuing routine farming activities to substantial penalties.”

“The federal agencies, especially the Environmental Protection Agency, Corps of Engineers and the Fish and Wildlife Service, with the aid of the lower courts, have been happy to cooperate in expanding the reach of the Section 404 wetlands program,” the farm organization stated. “Now the Ninth Circuit has planted the seeds for further expansion.”

Farm Bureau is concerned about the ramifications of the lower court’s decision because it:

* Narrows the normal farming exemption of Section 404 of the Clean Water Act and places the Corps of Engineers and the EPA in the business of regulating day-to-day farming and ranching practices.

* Rules that normal agricultural plowing can result in the discharge of a pollutant (soil).

* Finds that a farmer or rancher’s plow can be defined as a point source of pollution.

* And expands interpretations of the Section 404 so that a farmer or rancher would not be able to change his or her cropping patterns without a federal permit out of concern of a penalty for violating the Clean Water Act.

According to the brief, deep ripping (plowing) is a normal tillage practice and is, therefore, “a normal farming or ranching activity that is excluded or exempted from Section 404 regulation.”

“As this case perfectly demonstrates, implementation of the normal farming exemption has not proceeded as Congress intended… and (has) not fulfilled Congress’ aim of minimizing the interference of federal regulators in the routine decisions of farmers and ranchers,” the Farm Bureau brief stated.

“This is not a case about a farmer or rancher indiscriminately discharging dredged or fill material into navigable waters. This is a case of a farmer attempting to plant a different crop on his farmland, a very normal farming activity.”

If review is granted by the Supreme Court, the appeal will be heard by the nation’s highest court during its 2002-2003 fall term.

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