UNITED STATES ENVIRONMENTAL PROTECTION AG:EN

JURISDICTION AND WAIVER OF RIGHT TO HEARING

7. Respondent stipulates that EPA has jurisdiction over the subject matter of this

CAFO and waives any jurisdictional objections it may have.

8. Respondent waives its right to request a hearing as provided at 40 C.F .R.

22.15(c), any right to contest the allegations in this CAFO, and its right to appeal this CAFO.

9. By executing this CAFO, the Respondent neither admits nor denies liability and

neither admits nor denies Complainant's factual allegations set forth in this CAFO.

STATUTORY AND REGULATORY BACKGROUND

10. Section 309(g) of the CWA, 33 U.S.C. 1319(g), states that: "Whenever, on the

basis of any information available the Administrator fmds that any person has violated [Section

301 of the CW A, 33 U.S.C. 1311 ], ... the Administrator ... may, after consultation with the

State in which the violation occurs, assess a ... class ll civil penalty under [Section 309(g)(2)(B)

of the CWA, 33 U.S.C. 1319(g)(2)(B)]."

11. Section 301(a) of the CWA, 33 U.S.C. 1311(a), states that "Except as in

compliance with [Section 404 of the CW A] the discharge of any pollutant by any person shall be

unlawful."

12. Section 404(a) of the CWA, 33 U.S.C. 1344(a), states: "The Secretary [of the

Army] may issue permits ... for the discharge of dredged or fill material into the navigable

waters at specified disposal sites."

13. Section 502(12)(A) of the CWA, 33 U.S.C. 1362(12)(A), defines a "discharge

of pollutants" as "any addition of any pollutant to navigable waters from any point source."

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14. Section 502(14) of the CWA, 33 U.S.C. 1362(14), defines "point source" as

"any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, ... [ or] discrete fissure ... from which pollutants are or may be

discharged."

15. Section 502(6) of the CWA, 33 U.S.C. 1362(6), defines "pollutant" as "dredged

spoil, solid waste, ... biological materials, ... rock, sand [or] agricultural waste discharged into

water."

16. Section 502(7) ofthe CWA, 33 U.S.C. 1362(7), defines "navigable waters" as

"the waters of the United States .... "

17. Federal regulations, at 40 C.F.R. 232.2, define the term "waters of the United

States" to include rivers, streams and "wetlands."

18. Federal regulations, at 40 C.F.R. 230.3(t), define "wetlands" as "those areas that

are inundated or saturated by surface or ground water at a frequency and duration sufficient to

support, and that under normal circumstances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions."

19. The Debt Collection Improvement Act of 1996, 31 U.S.C. 3701 note, and its

implementing regulations at 40 C.F .R. Part 19, increased the statutory maximum penalty under

Section 309(g)(2)(B) of the CW A, 42 U.S.C. 13 l 9(g)(2)(B), for violations occurring between

January 12, 2009 and December 6, 2013, from $10,000 to $16,000 per day of violation and from

a $125,000 to a $177,500 maximum penalty.

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FINDINGS OF FACT

20. The Respondent in this action is: Rutlin Cranberry Company, Inc.; 30693 Exodus

Avenue; Warrens, Wisconsin 54666.

21. Respondent Rutlin Cranberry Company, Inc. (Respondent) is a corporation

organized under the laws of the State of Wisconsin.

22. The Site subject to this Order is an 80-acre piece of forested and marshy ground,

between Copper Road and the East Fork of the Lemonweir River (EFLR), mile north of

Wyeville, Monroe County, Wisconsin (Site).

23. Between the fall of2006 and the winter of2008-2009, Respondent installed 5

nine-acre cranberry beds and an adjacent 15-acre reservoir at the Site by mechanically clearing

vegetation and top soils, excavating and shaping subsoil sands and the dredged top soil to create

reservoir and bed perimeter dikes and ditches. The reservoir connects further westward to the

East Fork of the Lemonweir River via a water control structure. Respondent installed the

cranberry beds and reservoir with backhoes and quad axle trucks.

24. During the winter of201 l-2012, Respondent began a 9-acre reservoir expansion

project at the Site by discharging soil for an access road/perimeter dike, mechanically clearing

organic debris and top soils and excavating and stockpiling subsoil sands. Respondent used a

tracked backhoe and bulldozers for the reservoir expansion.

25. The activities by Respondent in paragraphs 23 and 24 resulted in the discharge of

fill and dredged material to 8.14 acres of wet meadow, shrub scrub and hardwood swamp

wetlands, and the excavation to open water of15.57 acres of wet meadow, shrub scrub and

hardwood swamp wetlands. In total, Respondent disturbed 23.71 acres of hardwood swamp,

shrub scrub, wet meadow and emergent wetlands.

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JURISDICTIONAL ALLEGATIONS AND CONCLUSIONS OF LAW

26. At all times relevant to this Order, Respondent has been a "person" as defined in

Section 502(5) of the CWA, 33 U.S.C. 1362(5).

27. The machinery referenced in paragraphs 23 and 24 constitute "point sources"

within the meaning of the defmition set forth in Section 502(14) of the CWA,

33 U.S.C. 1362(14).

28. The dredged and fill material referenced in paragraph 25 constitutes "pollutants"

as defined in Section 502(6) of the CWA, 33 U.S.C. 1362(6).

29. Prior to 2006, the Site contained wetlands as defined by 40 C.F.R. 232.2.

30. The wetlands were adjacent to the EFLR and flowed into the waters of the South

Fork of the Lemonweir River-forming the Lemonweir River. The Lemonweir River flows in a

southeasterly direction approximately 29 .95 river miles and becomes a traditional navigable

water.

31. The Lemonweir River has a relatively permanent flow, is a tributary of the

Wisconsin River, and is a traditional navigable water. The Wisconsin River is a traditional

navigable water. Traditional navigable waters include waters designated by the U.S. Army

Corps of Engineers as Section 10 waters under the Rivers and Harbors Act. The U.S. Army

Corps of Engineers designated the Wisconsin River in the vicinity ofthe Site as a Section 10

water.

32. The 23.71 acres of wetlands disturbed by the activities referenced in paragraphs

23 and 24 above are "waters of the United States" as defined at 40 C.F .R. 232.2, and

"navigable waters," as defined at Section 502(7) of the CW A, 33 U.S.C. 1362(7).

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33. The addition of dredged and fill material into the wetlands referenced in

paragraph 22 constitutes a "discharge of pollutants" from a "point source," as referenced in

paragraphs 23 and 24 within the meaning of the definitions set forth in Section 502(12) and (14)

of the CWA, 33 U.S.C. 1362(12) and (14).

34. At no time from the first date of the activities described in paragraphs 23 and 24

to the present did Respondent have a permit issued under Section 404 of the CW A,

33 U.S.C. 1344, for the discharge of pollutants.

35. Each discharge of pollutants into navigable waters without a permit issued

pursuant to Section 404 of the CW A, 33 U.S.C. 1344, constitutes a discrete violation of

Section 30l(a) of the CWA, 33 U.S.C. 131 !(a).

36. Each day the discharged material remains in the wetlands without the required

permit issued pursuant to Section 404 of the CWA, 33 U.S.C. 1344, constitutes a discrete

violation of Section 301 of the CWA, 33 U.S.C.1311.

SUPPLEMENTAL ENVIRONMENT PROJECT

37. Respondent must complete a supplemental environmental project (SEP) designed

to protect the environment by creating 3.18 acres of wetlands and a 2.36-acre buffer area in

upland areas amongst otherwise restored wetlands disturbed between 2006-2012 (see Plan Sheet

2, attached to Appendix A).

38. In creating this wetlands and buffer area, Respondent must follow the procedures

set forth in Appendix A.

39. Respondent must spend at least $100,800 to complete the wetlands creation and

buffer area SEP.

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40. Respondent certifies as follows:

I certify that all cost information provided to EPA in connection with EPA' s approval of the SEP is complete and accurate and that Rutlin Cranberry Company, Inc. in good faith estimates that the cost to implement the SEP is $370,687.

I certify that Rutlin Cranberry Company, Inc. is not required to perform or develop the SEP by any law, regulation, order, or agreement or as injunctive relief as of the date that I am signing this CAFO. I further certify that Rutlin Cranberry Company, Inc. has not received, and is not negotiating to receive, credit for the SEP in any other enforcement action.

I certify that Rutlin Cranberry Company, Inc. is not a party to any open federal financial assistance transaction that is funding or could be used to fund the same activity as the SEP. I further certify that, to the best of my knowledge and belief after reasonable inquiry, there is no such open federal fmancial transaction that is funding or could be used to fund the same activity as the SEP, nor has the same activity been described in an unsuccessful federal financial assistance transaction proposal submitted to EPA within two years of the date that I am signing this CAFO (unless the project was barred from funding as statut