769 F.Supp.3d 864
W.D. Wis.2025Background
- Plaintiffs, a lakeside property owners' association and the Lac Courte Oreilles Band of Chippewa, alleged that the Zawistowski Joint Revocable Trust's cranberry marshes discharge phosphorus into Lac Courte Oreilles without a permit, harming the lake.
- Defendant's cranberry farms use and return lake water (containing phosphorus) to Lac Courte Oreilles for crop production, including for harvesting, frost protection, pest control, and growth.
- State (Wisconsin DNR) and federal (EPA) agencies previously concluded permits are not required for such discharges, applying the Clean Water Act's (CWA) “irrigated agriculture return flows” exclusion.
- Plaintiffs sought an order requiring the Trust to obtain such a permit; both plaintiffs and defendant moved for summary judgment.
- The material facts about the marshes' practices and impacts on phosphorus concentrations were undisputed; the dispute centered on the scope and meaning of the statutory exclusion for “irrigated agriculture.”
- The court recognized the plaintiffs' standing and reached the merits of the interpretation of the CWA exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of CWA permit requirement to cranberry marsh return flows | Return flows for harvesting, pest control, etc. are not “irrigation” and therefore not exempt; requiring permits furthers the CWA’s purpose | All uses of water for crop production are “irrigation”; exclusion applies broadly per statute and agency practice | CWA exclusion covers all water used for crop production, including Trust’s uses; no permit required |
| Interpretation of "irrigated agriculture" | Should be narrowly construed; only watering for growth substitutes for rainfall | Should be construed broadly, encompasses all crop production uses | Broad construction applies; exclusion includes all crop-related water uses |
| Loophole contrary to CWA’s purpose | Exclusion creates a loophole undermining water protection | Any such loophole was created by Congress, not courts; consistent with legislative history | Court cannot rewrite statute; must apply statutory text as written |
| Legislative history and agency views | Proposed regulations and legislative comments indicate limits to exemption | Both EPA and DNR and legislative history support broad exemption | Legislative history supports broad view; proposed regulation is not controlling |
Key Cases Cited
- Prairie Rivers Network v. Dynegy Midwest Generation, LLC, 2 F.4th 1002 (7th Cir. 2021) (standing requirements for organizations challenging environmental harm)
- Food and Drug Administration v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024) (organizational standing and requirement for concrete, traceable injury)
- Pacific Coast Federation of Fishermen’s Ass’ns v. Glaser, 945 F.3d 1076 (9th Cir. 2019) (broad interpretation of “irrigated agriculture” and exclusion from CWA permit requirements)
- County of Maui, Hawaii v. Hawaii Wildlife Fund, 590 U.S. 165 (2020) (CWA’s structure and exceptions; need to read text, history, and structure together)
- Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011) (only one plaintiff with standing needed for jurisdiction)