In re General WPDES Permit for Municipal Separate Storm Sewer Systems (“MS4”)

Background:  MEA is working with its grassroots partners, including Friends of Milwaukee ' s Rivers and Clean Water  Action Council  of Northeast Wisconsin to protect urban streams and rivers from stormwater runoff from streets, parking lots, and new suburban development.    DNR and EPA consider polluted run-off to be one of the largest threat to Wisconsin's waters. To address this concern, DNR is required to regulate stormwater that is running into our storm sewers and, ultimately our waterways. In early 2006, DNR developed a general permit to cover small municipal separate storm sewer systems (MS4). Unfortunately, DNR’s general permit is inadequate because it does not include mandatory measures to maintain the existing water quality of the rivers, lakes and streams that receive the polluted run-off.  Specifically, it does not prevent high quality waters, including streams and lakes classified as Exceptional Resource Waters, from being degraded by increased discharges of polluted stormwater from city streets and construction sites.  The permit also fails to require monitoring requirements to ensure that the management controls that are required under the permit actually protect water quality standards. Without those monitoring requirements, the DNR and municipalities will not know whether control measures are effective, and the public will be denied the right to know whether environmental practices are achieving on-the-ground environmental goals.   

On March  20, 2006, MEA filed a Petition for an Adjudicatory Hearing on the general  stormwater permit  that could apply to up to 150 Wisconsin municipalities  and  allow them to discharge polluted stormwater to urban waterways.   The petitioners include Friends of Milwaukee's Rivers, Clean Water Action Council of Northeast Wisconsin, Rebecca Katers, Glenn Stoddard, Cheryl Nenn, Charles Frisk, and Christine Fossen Rades. 

On February 14, 2007, Friends of Milwaukee’s Rivers, Clean Water Action Council of Northeast Wisconsin, and individual residents, through attorneys Midwest Environmental Advocates, filed a lawsuit against the DNR challenging Wisconsin’s Municipal Separate Storm Sewer System General Permit. According to the suit, the Permit allows cities to increase pollution and lower water quality in high quality waters, contrary to federal Clean Water Act requirements. Read the press release here.

On April 27, 2007, MEA filed its initial brief on behalf of Friends of Milwaukee’s Rivers, Clean Water Action Council, and individual Petitioners in a challenge to the state-wide general permit for municipal storm sewer discharges (MS4s) and the DNR’s administrative rules for antiegradation protection (“the MS4 case”).  The MS4 case challenged DNR’s failure to apply basic Clean Water Act requirements necessary to protect existing water quality, referred to as “antidegradation” protections, to MS4s and DNR’s decision to deny the petitioners access to statutorily authorized administrative review of this failure in the permit.

Status: After full briefing, the Dane County Circuit Court decided in favor of the DNR, affirming DNR’s denial of administrative review of the Ms4 permit and upholding DNR’s legal conclusion that antidegradation protections do not apply to MS4 permits. MEA and its clients will not pursue an appeal.

Polluted runoff from urban storm sewers is a leading cause of water pollution in Wisconsin.  Given the rapid expansion of our cities, the amount of pollution carried off of parking lots and streets will likely increase despite basic management practices required under DNR permits.  The MS4 case seeks to enforce a federal requirement that cities and developers take all cost-effective steps to reduce stormwater pollution before building new developments and increasing stormwater discharges to storm sewer systems.  MEA hopes that the by properly implementing the Clean Water Act’s antidegradation policy, Wisconsin communities can efficiently and effectively reduce urban stormwater pollution at its source and protect the existing water quality in all of our waters.