EPA v. BORDEN RANCH (TSAKOPOULOS, ANGELO K.)

Case summary

MR. TSAKOPOULOS OWNS AN 8,500 ACRE RANCH AT THE BORDER OF SACRAMENTO AND SAN JOAQUIN COUNTIES IN CALIFORNIA (BORDEN RANCH). SINCE 1993, MR. TSAKOPOULOS HAS BEEN DEVELOPING PORTIONS OF BORDEN RANCH AS VINEYARDS. BORDEN RANCH CONTAINS AN EXTENSIVE NETWORK OF VERNAL POOLS (A TYPE OF SEASONAL WETLAND) AND EPHEMERAL STREAMS. PREPARING THE LAND FOR VINEYARD INSTALLATION HAS DAMAGED OR DESTROYED VERNAL POOLS AND STREAMS ON THE SITE. MR. TSAKOPOULOS' LAND PREPARATION ACTIVITIES INVOLVE DEEP RIPPING THE SOIL TO PREPARE IT FOR PLATNING. DEEP RIPPING IS A FORM OF LANDCLEARING THAT EPA AND THE CORPS OF ENGINEERS HAVE DETERMINED CONSTITUTE A DISCHARGE OF DREDGED AND/OR FILL MATERIAL, AT LEAST IN SOME CIRCUMSTANCES, WHEN PERFORMED IN WATERS OF THE UNITED STATES. AFTER DEEP RIPPING, MR. TSAKOPOULOS DISCS THE SOIL. DISCING IN AREAS THAT HAVE BEEN PREVIOUSLY DEEP RIPPED RESULTS IN FURTHER LEVELING OF THE SURFACE TOPOGRAPHY AND FILLING IN OF LOW LYING VERNAL POOLS AND STREAMS. REGION IX HAS CONCLUDED THAT MR. TSAKOPOULOS' RIPPING AND DISCING OPERATIONS IN THIS CONTEXT CONSTITUTE DISCHARGES OF DREDGED AND FILL MATERIAL THAT ARE SUBJECT TO REGULATION UNDER THE CLEAN WATER ACT. MR. TSAKOPOULOS HAS NOT OBTAINED A PERMIT UNDER SECTION 404 OF THE CLEAN WATER ACT FOR THE LAND PREPARATION ACTIVITIES THAT ARE THE SUBJECT OF THIS REFERRAL. THESE DISCHARGES ARE NOT EXEMPT FROM REGULATION PURSUANT TO SECTION 404(F) OF THE CLEAN WATER ACT. THIS CASE WILL REQUIRE EXTENSIVE INJUNCTIVIE RELIEF AND PAYMENT OF A SIGNIFICANT CIVIL PENALTY. NEITHER THE SCOPE OF THE INJUNCTIVE RELIEF NOR THE AMOUNT OF THE APPROPRIATE CIVIL PENALTY HAVE BEEN DETERMINED AT THIS TIME. THE NATURE OF THE INJUNCTIVE RELIEF WILL LIKELY TURN ON HOW QUICKLY MR. TSAKOPOULOS IS WILLING TO WORK TO REMOVE DISCHARGES AND RESTORE WATERS WHERE THIS IS FEASIBLE. IF MR. TSAKOPOULOS WORKS AGGRESSIVELY TO RESTORE WATERS ON SITE, THE NEED FOR COMPENSATORY MITIGATION COULD BE RELATIVELY SMALL. IF MR. TSAKOPOULOS DOES NOT RESTORE THE SITE PRIOR TO THIS FALL'S RAINS, DAMAGE WILL BE SIGNIFICANTLY GREATER, AND THE NEED FOR COMPENSATORY MITIGATION WILL INCREASE. THIS CASE PRESENTS POTENTIALLY PRECEDENTIAL ISSUES CONCERNING CLEAN WATER ACT JURISDICTION OVER VERNAL POOLS AND THE SCOPE OF CLEAN WATER ACT REGULATION OF CERTAIN AGRICULTURAL PRACTICES (DEEP RIPPING AND DISCING). IN PARTICULAR, THIS CASE RAISES NATIONALLY SIGNIFICANT ISSUES REGARDING THE APPLICATION OF THE TULLOCH RULE TO THESE ACTIVITIES, AND THE SCOPE OF THE PLOWING EXCLUSION SET OUT IN EPA AND CORPS. REGULATIONS. THE WATERS ON THIS PROPERTY ARE ALSO HABITAT FOR ENDANGERED SPECIES. THE FISH AND WILDLIFE SERVICE IS INVESTIGATING WHETHER TO BRING AN ENDANGERED SPECIES ACT ENFORCEMENT ACTION WITH REGARD TO THE VIOLATIONS AT ISSUE IN THIS CASE. IF SUCH AN ACTION IS BROUGHT, IT COULD SET A PRECEDENT FOR JOINT ENFORCEMENT OF SECTION 404 OF THE CLEAN WATER ACT AND THE ENDANGERED SPECIES ACT. THIS CASE COULD ALSO HAVE NATIONAL IMPACT BECAUSE THE LANDOWNER HAS OBTAINED A HIGH DEGREE OF MEDIA AND CONGRESSIONAL INTEREST IN HOW HIS ACTIVITIES ARE REGULATED

Defendants (2)

• AKT DEVELOPMENT CORPORATIONNamed in complaintNamed in settlement
• TSAKOPOULOS, ANGELO K.Named in complaintNamed in settlement

Facilities (1)

• BORDEN RANCH

  7700 COLLEGE TOWN DR, SACRAMENTO, CA, 958262348

  Registry ID: 110010676599

Statutes cited

• CWA 404 — Permits for Dredge and Fill Material

Enforcement conclusions (1)

• Borden Ranch (Judicial Decision)entered 2003-02-11

  Primary law: CWA

  Federal penalty: $486,040

Timeline (7 milestones)

• 1997-06-09Referred To Dept Of Justice
• 1997-06-17Enforcement Action Data Entered
• 1997-08-06Complaint Filed With Court
• 2003-02-11Concluded
• 2003-02-11Final Order Entered
• 2003-02-11Final Order Lodged
• 2003-08-12Enforcement Action Closed