Irrigation return flow or discrete discharge? Why water pollution from cranberry bogs should fall within the Clean Water Act's NPDES program.

• Author: Hanson, Andrew C.
• Position: National Pollutant Discharge Elimination System

1. INTRODUCTION II. POLLUTANT DISCHARGES FROM COMMERCIAL CRANBERRY PRODUCTION III. STATE V. ZAWISTOWSKI AND THE ATTEMPT TO USE PUBLIC NUISANCE AUTHORITY TO CONTROL POLLUTANT DISCHARGES FROM CRANBERRY BOGS IV. OVERVIEW OF THE CLEAN WATER ACT V. CRANBERRY BOGS, THE NPDES PERMIT PROGRAM, AND THE IRRIGATION RETURN FLOW EXEMPTION A. Ditches and Bulkheads As Point Sources B. The "Irrigation Return Flow" Exemption from the Definition of Point Source 1. Legislative and Regulatory History of the Irrigation Return Flow Exemption 2. Judicial Application of the Irrigation Return Exemption VI. How STATE V. ZAWISTOWSKI COULD HAVE BEEN AVOIDED A. The NPDES Permit Program of the Clean Water Act Is a More Efficient Tool for Preventing and Abating Water Pollutant Discharges from Cranberry Bogs 1. NPDES Protects Water Quality Through Numeric Pollutant Limits and Best Management Practices 2. NPDES Civil Liability Is "Strict" 3. NPDES Permits Prevent Pollution, Rather Than Solely Abate it After it Happens 4. Public Nuisance Actions Mimic the Failed Pre-NPDES Statutory Scheme 5. NPDES Permit Liability Is Not Necessarily Limited by Right to Farm Laws B. The Clean Water Act Can Resolve Questions of Appropriate Technology and Injunctive Relief VII. CONCLUSION I. INTRODUCTION

   Imagine a temporary detention pond. that stores water laced with phosphorus fertilizers and pesticides. Now, imagine that pond discharging its polluted contents through a series of ditches, dikes, and channels to the nearest lake. Environmental practitioners might quickly assume that the Federal Water Pollution Control Act Amendments of 1972, (Clean Water Act or Act) (1) regulates that discharge. Indeed, in most instances the Clean Water Act would--unless the discharger is a "cranberry bog," part of a small industry that has historically not been subject to the extensive reach of the Act.

   Despite license plates proclaiming it as the "dairy state," Wisconsin is not the leading milk producer in the United States. It is, however, the top cranberry producing state in the nation. Wisconsin--the "cranberry state"--more than doubles the cranberry production of the second largest producer, Massachusetts. In 2003, Wisconsin planned to produce more than 3 million barrels, or 300 million pounds, of the fruit, (2) more than one half of the almost 600 million pounds of cranberries consumed each year. (3) The remaining top cranberry-producing states like New Jersey, Oregon, and Washington, combined, would not surpass Wisconsin's production. (4) Today, there are 150 cranberry marshes in eighteen counties in Wisconsin covering 110,000 acres. (5) Cranberry operations are unique in that they are agricultural operations that require vast quantities of water. (6) In fact, water is the single most important resource for growing cranberries. (7) With over 84,000 miles of streams, 1.2 million acres of lakes, and 5 million acres of remaining wetlands, (8) Wisconsin seems ideal for cranberry production.

   Given the need for a large water supply, cranberry "bogs" are typically located on or near wetlands that are directly adjacent to lakes and rivers. (9) Production involves pumping water from adjacent wetlands or lakes, irrigating and flooding the below-grade cranberry beds for harvest and frost protection, and then discharging the water back to the lake or river from which it came through a series of ditches, dikes, and dams. (10) The discharged water contains the phosphorus fertilizers and residues of pesticides that were applied during the growing season. (11) The end result is relatively clean water coming into the bog, and relatively polluted water pouring out. (12)

   The cranberry industry has not historically been subject to the reach of the Clean Water Act despite the fact that cranberry bog discharges appear to fit squarely within the purview of the National Pollutant Discharge Elimination System (NPDES) program under the Act. (13) Recently, the Wisconsin attorney general has attempted to abate polluted cranberry bog discharges through public nuisance litigation. (14) However, rather than apply the complicated common law of public nuisance, this Article explores how the Clean Water Act can, and should, apply to control pollutant discharges from cranberry bogs.

   Part II of this Article describes the nature of cranberry production and the pollutants typically discharged in cranberry bog water to streams, wetlands, and lakes. Part III of this Article summarizes the recent public nuisance litigation in State v. Zawistowski, (15) where the Wisconsin attorney general joined with private landowners to abate pollutant discharges to a lake by a cranberry operation. Part IV summarizes the jurisdictional elements of the Clean Water Act's NPDES permit program. Part V of this Article analyzes whether cranberry bog discharges fall within the purview of the Clean Water Act's mandatory NPDES permit program, despite the "irrigation return flow" exemption from that program in the Act. Part VI of this Article suggests that not only should the Clean Water Act regulate pollutant discharges from cranberry bogs, but that doing so is a more efficient allocation of scarce public resources than filing public nuisance cases. The Article concludes that the Clean Water Act's NPDES permit program was designed to address the types of discharges from cranberry bogs, and should be applied by the U.S. Environmental Protection Agency (EPA) and state environmental agencies to ensure that navigable waters are protected from this unique and potent source of water pollution.

2. POLLUTANT DISCHARGES FROM COMMERCIAL CRANBERRY PRODUCTION

   A native species to North America, cranberries grow on vines naturally in bogs and marshes. (16) However, commercial cranberry production involves dramatic landscape alterations for the cultivation of artificial bogs or "cranberry beds." The land is cleared of vegetation, scalped, and leveled approximately two feet below the existing grade of the soil. (17) A layer of sand is laid to create an acidic surface optimum for vine growth, and sand is periodically added to maintain the beds. (18) The vines take root in the sand, forming a monoculture that takes three to five years to produce commercial quantities of fruit. (19) Water is added to irrigate, to flood the beds for frost protection, and for harvest. (20)

   To the casual observer, cranberry production might seem environmentally benign. In fact, proponents of the cranberry industry frequently claim that cranberry bogs serve as valuable wetlands that provide ecological functions for habitat and wildlife. (21) Cranberry production involves creation of artificial wetlands (22) during a time when wetlands are disappearing rapidly across the United States. (23) But the intensive application of pesticides, herbicides, fungicides, and fertilizers attendant to industrial cranberry production tells a different story.

   Fertilizer application plays a critical role in cranberry production. (24) The acidic soils in which cranberry vines take hold are naturally low in phosphorus, so cranberry growers must add phosphorus to increase crop productivity. (25) Cranberries typically require no more than twenty pounds of actual phosphorus per acre, (26) yet one study indicated that Wisconsin cranberry growers may be over applying phosphorus on their cranberry beds. (27) Over application of this plant nutrient can result in more soluble phosphorus being discharged to the nearest surface water during the seasonal discharges from the bogs, associated with either the spring planting or fall harvest, after the phosphorus fertilizer has been applied to the bog. (28)

   Several studies of northern Wisconsin lakes located downstream from areas of intense cranberry production showed increased levels of nutrients, particularly phosphorus, which contribute to harmful aquatic plant growth such as algae and weeds. (29) One study showed that phosphorus releases from a cranberry bog exceeded that of a nearby residential housing development. (30) Another found that phosphorus loading from cranberry bog water returned to a surface water comprised more than seventy-five percent of the total phosphorus load to the lakes, based on computer modeling. (31)

   Pesticide discharges from cranberry bogs--or bog-water laced with pesticides--also pose a well-documented water pollution problem. There are approximately twenty-two pesticides commonly used on cranberries, including napropromide, norflurazon, dichlovenil, 2, 4-D, carbaryl, diazinon, chlorpyrifos, and azinphos-methyl. (32) One study in Wisconsin found that pesticide concentrations in surface water downstream from cranberry marsh discharges were sufficient to cause total mortality of two species of test organisms. (33) Another study in Washington, also a leading cranberry producer, detected three toxic organophosphorus insecticides, one of which includes the dangerous chemical diazinon, at lethal concentrations for aquatic invertebrates, exceeding that state's water quality criteria for aquatic life. (34) Yet another study in northern Wisconsin found elevated concentrations of lead, arsenic, cadmium, selenium, and other toxic metals in cranberry bog discharges. (35)

   In short, the point source discharge of phosphorus and pesticides from cranberry bogs is well-documented, as is the water quality impact of those discharges. Due to their heavy use of water for production and the use of pesticides and fertilizers, the residue of those pesticides and fertilizers can be washed away through the canals and bulkheads by successive flooding and drainage of the cranberry bogs. (36) In this way, pollutant discharges from cranberry bogs are more direct and discrete than typical agricultural runoff. (37)

3. STATE V. ZAWISTOWSKI AND THE ATTEMPT TO USE PUBLIC NUISANCE AUTHORITY TO CONTROL POLLUTANT DISCHARGES FROM CRANBERRY BOGS

   Concerned with alleged discharges of phosphorus pollution from a cranberry bog in northern Wisconsin, in 2004...