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Anderson et al v. Department of Natural Resources
(State of Wisconsin Supreme Court) UPDATE! Four months after the Wisconsin Supreme Court’s 5-2 decision that found DNR had no obligation to comply with minimum Clean Water Act standards unless EPA specifically required them to, the EPA has issued a letter to the DNR that points out the agency’s “numerous apparent omissions and deviations between Wisconsin’s current statute and [Clean Water Act] requirements.” The EPA is requiring that the “omissions and deviations…be corrected quickly”, and that the state prove it has “adequate authority” to rectify the program’s problems or provide a plan to establish the required authority. Read the press release and the EPA letter to DNR Secretary Stepp.
Background: The Fort James Paper Company Case Surprisingly, the Wisconsin Department of Natural Resources (DNR) disputed the citizens’ right to challenge the permit, alleging that prior to seeking review of the deficiencies in the permit CWAC and NWF must have, but did not, raise their legal and technical arguments in public comments. WDNR’s position severely limited citizen’s rights to challenge the state’s decisions regarding water pollution permits - shutting out individuals who could not obtain technical or legal resources, or who didn’t use the “magic words” DNR deemed necessary to challenge deficiencies in a water pollution permit. In addition DNR denied the CWAC and NWF’s request for review as it related to compliance with the federal laws underling the pollution permit. DNR’s position, that it had no authority to review water pollution permits for compliance with the Clean Water Act, again undercut citizen rights to ensure Wisconsin waters receive at least the minimum protections all other waters in the nation receive.
Fortunately, the citizens challenging the Fort James permit were persistent in their quest for clean water. That’s were Midwest Environmental Advocates got involved to represent CWAC in its challenge to the DNR’s decision. In 2010, after years of litigation, the Court of Appeals found in favor of CWA. The Court rejected the State’s interpretation, upholding citizens’ rights to challenge the terms of a water pollution permit without having to submit comments on the issues prior to the permit issuance. This was a major victory for the people of Wisconsin - the right to public process was, and continues to be, protected! The Court also held that DNR must review water pollution permits it issues for compliance with federal Clean Water Act requirement. Unfortunately, DNR decided to appeal this portion of the Court of Appeals decision. DNR denies this responsibility and is taking the question to the Wisconsin Supreme Court. |
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The Wisconsin Supreme Court The Court of Appeals agreed with MEA, holding that DNR has the authority to determine if provisions in a DNR issued water pollution permit comply with the federal Clean Water Act. The DNR appealed that decision and claims that the citizens have no right under state law to challenge an issued permit that fails to comply with minimum federal Clean Water Act requirements. If the Supreme Court reverses the Court of Appeals’ decision citizens will be without a voice to challenge DNR’s decision to issue a permit to pollute Wisconsin water that is less stringent than uniform national Clean Water Act requirements. This case will likely have a dramatic impact on many other environmental cases in Wisconsin, including the currently pending challenge to Rosendale Dairy’s water pollution permit, as well as how wastewater permits are implemented in the future. Following the submission of briefs the Wisconsin Supreme Court heard oral arguments on November 3rd, 2010. Read the Wisconsin Supreme Court briefs: DNR's brief, Respondent's Brief and DNR's Reply Brief. Read the press release here. View the WisconsinEye recording of the argument here. On March 23rd, 2011 the Supreme Court of Wisconsin returned decision reversing the Court of Appeals. Read the court's decision here. The Wisconsin Supreme Court has shut the door on citizens of the state who question DNR's failure to comply with federal law in environmental permits, even though state law requires DNR permits to meet the minimum protections of the federal Clean Water Act. The court held that DNR is not required to consider challenges to water pollution permits that fail to comply with “the basic requirement of the federal Clean Water Act” In its decision, the Supreme Court wrongly deferred to DNR’s own interpretation of its authority to deny citizens an opportunity to object to permits that fail to comply with Clean Water Act standards. Today’s decision undermines Wisconsin’s long standing tradition to allow individuals to participate in decisions that impact the water they drink, swim, and recreate in – and ultimately leaves citizen’s with NO forum to challenge permits that fail to protect public health and the environment. This is a disappointing moment for Wisconsin and Wisconsin residents and visitors who drink, live on, fish in and recreate in Wisconsin’s many waters. It may jeopardize Wisconsin’s authority to regulate water pollution at all. If the DNR does not run a program that complies with the federal Clean Water Act, EPA can take back the authority it gave Wisconsin to issue permits to facilities. The Clean Water Act was passed by Congress in 1972 to set minimum standards for water quality for the nation. Individual states earned the ability to implement the CWA by creating regulatory frameworks that included the protections of federal law. Nearly 40 years after the passing of the CWA, not one state in the union fully and effectively implements the laws designed to protect water quality essential to public health and well-being. Wisconsin, disappointingly, seems to denounce its once grand reputation as a national leader for natural resource protection and seems subject to the will of the few, rather than the want of the many. Click here for a copy of the March 23rd press release.
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Additional Resources |
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Environmental Protection Agency tells Wisconsin DNR it doesn't meet federal water standards Wisconsin Supreme Court Decision - March 23, 2011 Wisconsin Supreme Court Shuts the Door on Citizens’ Rights to Clean Water Wisconsin Supreme Court Backs DNR in Discharge Permit Battle Wisconsin Court of Appeals District III Decision - April 13, 2010 Response to Petition for Review Department of Natural Resources's Initial Brief Respondent's Brief - September 13, 2010 Department of Natural Resources's Reply Brief Landmark Environmental Case Before Wisconsin Supreme Court View the WisconsinEye Recording of the Wisconsin Supreme Court Oral Arguments Online |
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"It [EPA letter] takes the sting out of the punch in the gut we got when we heard the decision. We KNEW we had a good case. This letter shows that citizens do have power and sometimes know more about enforcing environmetal law then the DNR."
The Court of Appeals