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Groups appeal dismissal of lawsuit against MMSD

District improvements planned by 2010

By Janice Kayser
Staff Writer
Posted: Jan. 16, 2008

Two environmental groups have appealed the recent dismissal of their Clean Water Act lawsuit against the Milwaukee Metropolitan Sewerage District, which was filed against MMSD.

The Friends of Milwaukee's Rivers and Alliance for the Great Lakes claim they intend to force MMSD to discontinue illegal sanitary sewer overflows into Milwaukee's rivers and Lake Michigan. The groups, in a suit initiated in 2001, claim that since 1995, MMSD has illegally dumped nearly 1 billion gallons of sanitary sewage into Lake Michigan and its tributaries, which include the Menomonee River and Underwood Creek running through Wauwatosa, violating its operating permit and the Clean Water Act.

Act tries to clean up waters

The Clean Water Act first passed in 1972 and was amended in 1977. Its goals were to eliminate toxic substance releases to water and additional water pollution by 1985, ensuring that surface waters would meet standards necessary for human sports and recreation.

The act gave the Environmental Protection Agency the authority to implement pollution control programs. It also laid out requirements to set water quality standards for all contaminants in surface waters and made it unlawful for any person to discharge any pollutant into navigable waters, unless a permit was obtained under its provisions.

In 2004, MMSD and member communities dumped more than 1.6 billion gallons of untreated or partially treated sewage into Milwaukee's riverways, including the Menomonee River. MMSD, under the district's operating permit, is allowed dumping into streams and Lake Michigan up to six times per year, as long as it does not harm the water quality.

DNR asks state to prosecute

The DNR at that time asked the state to prosecute MMSD and its member communities for violating the act. The state held off on including the member communities, including Wauwatosa, after former Attorney General Peg Lautenschlager said discussions with those communities were "productive" on ways to prevent the dumping. That lawsuit against MMSD has still not been resolved, according to Bill Graffin, spokesman for MMSD.

The FMR appeal to the 7th U.S. Circuit Court of Appeals is being represented by attorney Karen Shapiro of Midwest Environmental Advocates, a nonprofit environmental law center. Shapiro and supporters of the suit say that MMSD has continued to dump millions of gallons of sewage through "sanitary sewer overflows," into the area rivers since 2002.

Shapiro claims the court dismissed the groups' suit based on procedural grounds, but "without addressing the groups' legal claims that there have been serious violations of the Clean Water Act."

But MMSD counters the suit was dismissed because a 2002 stipulation between the state and MMSD brought MMSD into compliance with the Clean Water Act, a ruling made by Milwaukee County Circuit Court Judge C.N. Clevert.

"This is more of a substantive ruling, not procedural," MMSD spokesman Bill Graffin said this week. "MMSD has complied with the extensive requirements of the 2002 Stipulation with its $1 billion investment by constructing capital projects on schedule, completing the 2020 facilities plan on schedule, and all of the other actions required."

MMSD Executive Director Kevin Shafer issued a press statement on the appeal, which was filed Jan. 11, saying the two environmental groups are forcing the district to "spend more tax money defending a lawsuit that's been dismissed two times by a federal judge."

"We're moving forward and focusing our attention on the $1 billion currently being invested to improve the regional system," Shafer said. "Right after that work's done in 2010, there's another very expensive plan, just approved by the Wisconsin Department of Natural Resources, to further improve our system through 2020."

"As a leader and taxpayer of this District, I'm disappointed that the hard working people of this region have to pay for yet another legal threat from the same groups, whose only request to date has been for legal fees," Shafer said.

Janice Kayser can be reached at jkayser@cninow.com or (262) 446-6608.


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