OPINION AND ORDER

ANCER L. HAGGERTY, United States District Judge

On September 23, 2002, Magistrate Judge Ashmanskas filed his Findings and Recommendation recommending defendant's Motion to Dismiss (which was converted subsequently into a motion for summary judgment) be granted. Plaintiffs have filed timely objections. The matter is now before the court pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a Magistrate Judge's Findings and Recommendation on a dispositive motion, the district court reviews the Magistrate Judge's report de novo. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). For the reasons stated below, the court adopts the Findings and Recommendation (doc. #4) on alternate grounds. Defendant's Motion to Dismiss (doc. #4) is GRANTED.

BACKGROUND

The facts of this case are described in the Findings and Recommendation and need not be repeated at length. Defendant operates two fruit processing plants near Dallas, Oregon, which produce dried specialty fruits, including cranberries, cherries, blueberries, apples, and strawberries. Affidavit of Joseph Meduri ¶ 3. Operations occur primarily at its Dyck Road facility, although its Fir Villa Road facility processes some cherries and prunes. Id. ¶ 2.

Dehydrating the fruit creates wastewater. Id. ¶ 4. As of the filing of this lawsuit, defendant's system for disposing of this wastewater included screening the wastewater to remove solids, adjusting its pH level, and collecting the water in above-ground holding tanks. Id. Ex. C at 14-15. At the Dyck Road Facility, the water is transferred from the holding tanks into a three million gallon holding pond. Id. ¶ 8. During the months of April through October, defendant uses wastewater from the holding pond to irrigate its prune orchards and grass fields. Id. ¶ 7. Wastewater from the Fir Villa facility is drawn directly from the storage tanks to irrigate defendant's fields during the months that plant is in operation (June through October). Id. ¶ 15.

ARGUMENTS

Plaintiffs filed suit on May 23, 2002, pursuant to Section 505 of the Federal Water Pollution Control Act. 33 U.S.C. § 1365 (commonly known as the "Clean Water Act"). Plaintiffs allege:

defendant has discharged and continues (or is reasonably likely to continue) to discharge pollutants from point sources to the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit, a violation of Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a).

Complaint ¶ 2. Citing numerous complaints made to the Oregon Department of Environmental Quality (DEQ) between June 1997 and June 2001, a report produced by soil scientist Philip Small, water samples taken from defendant's drainage ditches in spring 2002, and observations of Plaintiff Wayne Hiebenthal (a former prune farmer), plaintiffs argue that defendant's land application of its wastewater requires an NPDES permit because its "irrigation" is resulting in more wastewater on its fields than the crops can utilize, contaminating the local watershed.

Defendant argues that plaintiffs have failed to present any evidence that defendant continues or is likely to continue discharging pollutants from a point source in violation of the Clean Water Act. Defendant contends (1) plaintiffs' evidence shows no real likelihood of repeated violations; and, even if it did, (2) return flows from irrigated agriculture are exempt from the Clean Water Act's NPDES requirements. See 33 U.S.C. § 1362(14) (exempting "agricultural stormwater discharges and return flows from irrigated agriculture" from the definition of "point source" and regulation under the Act).

The Magistrate Judge concluded that plaintiffs had failed to establish that defendant is reasonably likely to continue to discharge contaminants, and he recommended granting defendant's motion for summary judgment. Findings and Recommendation at 8. He did not address defendant's second argument: that the Clean Water Act exempts return flows from irrigated agriculture from the NPDES permit requirements.

DISCUSSION

The Clean Water Act provides subject matter jurisdiction for citizen suits against any person alleged "to be in violation" of an effluent standard or limitation or an administrative order. 33 U.S.C. § 1365(a)(1). As the Magistrate observed, a plaintiff must be able to allege that the violations are ongoing, pointing either to "violations that continue on or after the date the complaint is filed" or to "evidence from which a reasonable trier of fact could find a continuing likelihood of a recurrence in intermittent or sporadic violations." Sierra Club v. Union Oil Co. of California, 853 F.2d 667, 671 (9th Cir. 1998) (quoting Chesapeake Bay Foundation, Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988)).

Viewing the evidence most favorably to the non-moving party, the court cannot conclude, as the Magistrate did, that plaintiffs have failed to produce evidence from which a reasonable trier of fact could find a likelihood of continuing discharge of pollutants from defendant's property. Plaintiffs have submitted water samples from ditches abutting defendant's property with elevated Biological Oxygen Demand (BOD) and a report from a soils scientist warning that "incomplete soil-based treatment of oxygen demanding organic wastewater" from defendant's processing plant applied to its crops "has resulted in discharge of oxygen demanding constituents to surface waters." Both are adequate to support an inference that the water draining from defendant's property is polluted and that continued discharge is reasonably likely. However, because certain exemptions in the Clean Water Act apply, this court lacks jurisdiction, and the Findings and Recommendation is adopted on alternative grounds.

Simply proving the runoff is contaminated does not provide this court with subject matter jurisdiction. Plaintiffs must show: (1) the discharge of a pollutant; (2) without an NPDES permit; (3) from a point source. 33 U.S.C. § 1311(a), 1342(a)(1). "A cornerstone of the Clean Water Act is that the `discharge of any pollutant' from a `point source' into navigable waters of the United States is unlawful unless the discharge is made according to the terms of an NPDES permit obtained from either the United States Environmental Protection Agency ("EPA") or from an authorized state agency." Ass'n to Protect Hammersley, Eld, Totten Inlets v. Taylor Res., 299 F.3d 1007, 1009 (9th Cir. 2002). Plaintiffs may be able to show that defendant is discharging pollution into the navigable waters without an NPDES permit, but they cannot show defendant is doing so from a point source.

Congress specifically exempted agricultural fields from the definition of a "point source." "The term `point source' means any discernible, confined and discrete conveyance. . . . This term does not include agricultural stormwater discharges and return flows from irrigated agriculture." 33 U.S.C. § 1362(14). The implementing regulations are more specific: "Any introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands" does not require an NPDES permit. 40 C.F.R. § 122.3. See also 64 Fed. Reg. 68,722 at 68,724-25 ("Although water quality problems also can occur from agricultural storm water discharges and return flows from irrigated agriculture, this area of concern is statutorily exempted from regulation as a point source under the Clean Water Act.").

Plaintiffs argue unpersuasively that the Clean Water Act's exemptions for irrigated agriculture are inapplicable to defendant's operations because defendant's possible over-application of fruit processing wastewater to its crops is more akin to industrial, non-agricultural activities. The only case to support this position was decided seven years before Congress added the exemption for agricultural runoff to the Clean Water Act. United States v. Oxford Royal Mushroom Products, Inc., 487 F. Supp. 852, 854 (E.D.Pa. 1980) (holding that the spraying of an overabundance of wastewater onto irrigation fields may qualify as a point source); see Pub.L. 100-4, Title V, §§ 502(a), 503 (1987). The Clean Water Act leaves regulation of irrigation return flows and agricultural runoff to the states, regardless of the quality of the water used to irrigate the fields. Community Association for Restoration of the Environment v. Henry Bosma Dairy, 305 F.3d 943, (9th Cir. 2002) (finding that fields where dairy applied wastewater were not subject to the agricultural exemption because they were part of defendant's "Concentrated Animal Feeding Operation" which is expressly designated by the Clean Water Act as a point source). Plaintiffs' evidence may show that defendant is applying wastewater to its fields in excess of the crops' actual absorption of that water. While this may support a revision of defendant's state Water Pollution Control Facilities Permit, it does not provide the court with federal subject matter jurisdiction under the Clean Water Act.

CONCLUSION

For the foregoing reasons, plaintiffs have failed to show that the court has subject matter jurisdiction under the Clean Water Act. The Magistrate's Findings and Recommendation is adopted on alternative grounds. Defendant's Motion to Dismiss (doc. #4) is GRANTED.

IT IS SO ORDERED.