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Wisconsin Court Makes it Easier to Challenge Wastewater Discharge Permits

Environmental Law Alert Thomas P. McElligott, David A. Strifling

Obtaining or renewing a Wisconsin Pollution Discharge Elimination System ("WPDES") permit just became more perilous, thanks to an April 13, 2010 decision by the Wisconsin Court of Appeals. In Anderson et al. v. DNR, the Court reached two important conclusions: first, that even if objections to a proposed WPDES permit are not raised during the public comment period, those objections can be raised in a subsequent contested case hearing and, second, that the DNR has the authority to determine whether permit conditions violate federal law.

The proposed permit at issue in the case contained a phosphorous limitation and required mercury sampling pursuant to an alternative limitation plan in lieu of mercury limits. The Clean Water Action Council ("Council") submitted public comments objecting to the phosphorous limits but not the mercury sampling provisions. The DNR issued the permit without modification. The Council petitioned for review pursuant to Wis. Stat. § 283.63. It renewed its objection to the phosphorous limits and, for the first time, also objected to the mercury sampling procedure. The DNR immediately denied the petition with respect to the mercury sampling procedure on the grounds that the Council had not raised that objection during the public comment period. The DNR also concluded that it lacked the authority to resolve some of the Council's challenge to the phosphorous limits because those challenges were based on federal rather than state law.

The Circuit Court affirmed the DNR's decision, but the Court of Appeals reversed on both counts. First, the Court held that the statutory text in § 283.63, directing the DNR to "review" the permit conditions and "consider anew" all matters concerning the permit, did not mean that the review and accompanying public hearing were limited to matters previously raised. Instead, the Court held that these terms require the DNR to analyze the denial "anew," under a de novo standard of review. Moreover, the Court held that limiting the hearing would be inconsistent with the legislative goal of broad public participation in the permit process, as it would penalize members of the public for failing to participate earlier in the process.

Second, the Court overturned the DNR's determination that it had no authority to determine whether the permit provisions complied with federal law. The DNR argued that the EPA's failure to veto the proposed permit was "outcome determinative," but the Court disagreed on the theory that the EPA's failure to act might mean that it found a deviation from federal law not serious enough to veto, or even that the EPA simply "abdicated its oversight duties altogether." Relying on several provisions in Chapter 283, which require the DNR to ensure that its rules and permits comply with and do not exceed corresponding federal authority, the Court also claimed that the DNR regularly assesses whether rules or permit terms comply with federal law. See Wis. Stat. §§ 283.001(2) (state system to be "consistent with all the requirements of the federal water pollution control act"); 283.11(2) (DNR rules "shall comply with and not exceed the requirements of the federal water pollution control act"); 283.31(3)(d)2 (DNR may issue permit only if discharge will "comply with any applicable federal law or regulation").

Ultimately, the Court's decision simply means that the permit issuance process could be much more difficult to navigate because of the broader array of challenges now at permit opponents' disposal. Those opponents can now mount a wide range of challenges based in both federal and state law.  

To discuss how this decision affects your need to obtain or review a WPDES permit, contact Tom McElligott at 414-277-5531 / thomas.mcelligott@quarles.com or your Quarles & Brady attorney.