On February 28, 2024, the Corte Oreilles Lakes Association together with the Lac Courte Oreilles Band of the Lake Superior Chippewa filed a lawsuit against two cranberry farms for alleged Clean Water Act (“CWA”) violations. According to the plaintiffs, the defendant’s farms had been making unpermitted discharges of phosphorous into a waterbody protected by the CWA for years. While the plaintiffs argue that the defendant’s discharges should be regulated, traditionally cranberry bogs have not been subject to CWA enforcement, with most discharges from cranberry farms exempted as “irrigation return flow.” While the lawsuit is still in its early stages, depending on the outcome, this case could have far-reaching consequences for the entire cranberry industry.

The Clean Water Act

The CWA was passed by Congress in 1972 for the primary purpose of restoring and maintaining the “chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). One of the main ways the CWA works to achieve that purpose is by prohibiting any unpermitted discharges of pollutants from a point source into a water protected by the CWA.

Under the CWA, a pollutant is broadly defined to include, among other things, solid waste, chemical waste, biological materials, sand, and agricultural waste. 33 U.S.C. § 1362(6). Meanwhile, a point source is defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). In other words, a point source is a fixed, distinct source of pollution discharge. Importantly, the term point source specifically excludes “agricultural stormwater discharges and return flows from irrigated agriculture.” 33 U.S.C. § 1362(14). However, outside of those exceptions, any person who makes a discharge from a point source into a protected water must obtain a National Pollutant Discharge Elimination System Permit (“NPDES”) from the Environmental Protection Agency (“EPA”) in order to stay in compliance with the CWA.

The exceptions to the NPDES permitting program include a variety of agricultural activities. Specifically, the CWA exempts all pollutants discharge from non-point source agricultural activities including storm water runoff from cultivated crops, pastures, and range lands from permitting requirements. 40 C.F.R. § 122.3(e). Agricultural non-point sources of pollution can include runoff from fertilizer or pesticide applications, sediment from crop or range land, or nutrients from livestock. Return flows from irrigated agriculture are also exempted from NPDES permitting requirements. 40 C.F.R. § 122.3(f). While there is no statutory definition of return flows from irrigated agriculture, it is generally understood that the term refers to runoff water from purposeful irrigation activities. EPA has tended to interpret the irrigation return flow exemption broadly, finding that it exempts not only irrigated dryland crops, but also “wet” agricultural activities such as rice farming or cranberry bogs from CWA permitting requirements.

Current Lawsuit

The plaintiffs filed the present lawsuit against the defendant cranberry farms in late February. In their suit, the plaintiffs claim that the discharges at issue should not be included in the irrigation return flow exemption to the CWA because the discharges were not irrigation return flow. While the case is still in its early stages, a ruling for the plaintiffs could impact how cranberry bogs through the country are regulated under the CWA.

The two cranberry bogs at issue in Courte Oreilles Lakes Ass’n, Inc. v. Zawistowski, No. 3:24-cv-00128 (W.D. Wis. filed February 28, 2024) are located on Lac Courte Oreilles in Wisconsin. The lake is recognized as a water protected by the CWA. The first cranberry bog, known as the east Zawistowski Trust marsh or east marsh, was constructed in 1939 and is connected to Lac Court Oreilles by a 20-foot-wide man-man channel. Additionally, a man-made ditch approximately 100 feet in length runs along the edge of the east marsh and merges with the channel just before it empties into Lac Courte Oreilles. The second cranberry bog, referred to as the west Zawistowski Trust marsh or west marsh, has been used for cranberry production since 1940 and is connected to Lac Courte Oreilles via a series of ditches and canals that empty into a 30-foot-wide man-made channel which in turn empties into the lake. A ditch also runs alongside that channel and itself empties into the lake. The plaintiffs claim that all four outlets – the channel and ditch associated with the east marsh and the channel and ditch associated with the west marsh – are point sources for purposes of the CWA because the definition of point source specifically includes channels and ditches.

According to the plaintiffs, multiple discharges of pollutants are made from the four ditches and channels into Lac Courte Oreilles each year. While the discharges have historically been exempted from CWA regulations under the irrigation return flow exemption, the plaintiffs argue that the exemption should not apply to the defendant’s discharges because the discharges are not irrigation return flow. The plaintiffs note that cranberries are a water-intensive crop, and that cranberry producers rely on access to fresh water to flood their cranberry bogs for multiple purposes throughout the course of the year. Cranberries are flooded to protect the plants from freezing, to control pests, to harvest the mature berries, to create a protective layer of ice over the cranberry vines during the winter months, and to help deposit root mediums such as sand and sediment to the plants.

According to the plaintiffs, flooding a cranberry bog typically requires the cranberry operator to flood the bog with fresh water, and then to eventually drain the water back to its source. While the water used to flood a cranberry bog begins as fresh water, the plaintiffs state that when the bogs are drained, the water that is released back to the source usually carries the chemicals and organic materials introduced by the cranberry bogs. In this case, the plaintiffs claim that the water discharged by both the east and west Zawistowski Trust marshes carry excess amounts of phosphorous and sediment to Lac Courte Oreilles, both of which are classified as pollutants under the CWA. The plaintiffs argue that these discharges should be regulated as point source discharges under the CWA because the water used in the cranberry bogs is not being used for irrigating, but rather is used to protect the cranberries from freezes, harvest the cranberries, and deliver root medium to the cranberry vines. The plaintiffs claim that such activities fall beyond the scope of the CWA’s irrigation return flow exemption.

Going Forward

It is currently too early in the proceedings to predict what the outcome of this case will be. However, a ruling in favor of the plaintiffs would likely impact cranberry operations throughout the United States. If the court concludes that the defendant’s activities are not included in the CWA’s irrigation return flow exemption, it is possible that similar operations may need to obtain CWA permits or be at risk to lawsuits or enforcement actions.

To read the complaint in Courte Oreilles Lakes Ass’n, Inc. v. Zawistowski, click here.

To read the text of the CWA, click here.

For more National Agricultural Law Center resources on the CWA, click here.