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— Clean Water Action Council challenges pollution permit with a request for judicial review.
The Clean Water Action Council is taking this case to the state Supreme Court in an attempt to appeal the lower courts’ decisions. The right to seek review of pollution discharge permits issued by the Wisconsin Department of Natural Resources is not only required under state law and the federal Clean Water Act, but is fundamental to a fair and effective legal system. Under a recent Court of Appeals ruling, a property owner downstream from a wastewater discharger would be unable to protect their property interests from an unlawfully permitted discharge of toxic pollutants. Supreme Court review is needed to correct the Court of Appeals error and ensure that any citizen who is adversely affected the DNR’s actions has some avenue of relief.
On May 29, 2014, CWAC requested a state Supreme Court review of the appeal and we are waiting to hear if the court will accept the case. The petition and other documents related to this case are linked in the case summary and resources sections below.
In 2012, Clean Water Action Council worked with Midwest Environmental Advocates to review a water pollution permit (called Wisconsin Pollution Discharge and Elimination System or “WPDES” permit) approved by the Wisconsin Department of Natural Resources. The WPDES permit allows Appleton Coated LLC, a paper and printing company located in Combined Locks, WI, to discharge 6.1 million gallons of treated waste water into the lower Fox River.
The Fox River has been designated as an impaired water, and the state has developed plans to reduce the concentration of two of the pollutants causing the impairment: phosphorus and total suspended solids. These plans, referred to as Total Maximum Daily Loads (TMDLs), establish the maximum amount of a pollutant that a body of water can receive and still meet water quality standards. Upon reviewing the Appleton Coated permit, CWAC and MEA discovered, among other things, that it allows Appleton Coated to discharge more phosphorus and total suspended solids than is allotted to the facility under the TMDL.
“There was no doubt that the Clean Water Action Council had to stand up and sign on to challenge this water pollution permit,” said Dean Hoegger, CWAC President. “We knew if the DNR would allow Appleton Coated to continue to discharge phosphorus into the lower Fox River at these levels, too much pollution would travel from Appleton to Green Bay. The Bay is one of the largest freshwater estuaries in the world, but its growing dead zone is evidence that we have to take immediate action to protect this sensitive body of water.”
The Clean Water Action Council has been working to protect water – from the Fox River to Green Bay – in northeast Wisconsin since 1985. The organization, with a membership of over 350 individuals and organizations, has a strong mission to educate the public about their rights to defend their health and the health of our environment. The Clean Water Action Council helps citizens work together to protect their natural resources through educational events, networking, bus trips, letters to the editor and newspaper columns, newsletters, and social media.
But CWAC is more than a group of concerned citizens. It is an effective watchdog for emerging threats to environmental health. As a nonprofit, public interest organization, it can act on behalf of its members to be a powerful, outspoken advocate for all citizens in northeast Wisconsin. A part of the board’s commitment to being a watchdog is monitoring pollution permits issued by the state to regulate discharges into surface waters and the air. By taking action through the courts, this organization can share the responsibility, and the liability, that shouldn’t fall on individuals whose families and businesses rely on clean water.
In November 2012, Midwest Environmental Advocates filed a petition for judicial review in the state Circuit Court of Brown County on behalf of CWAC to challenge the DNR’s approval of the company’s WPDES permit. The complaint says that:
The Clean Water Action Council and MEA took this course of action because Wisconsin Attorney General A.G. Van Hollen issued a decision in response to a letter from the federal Environmental Protection Agency that said individuals (in this case CWAC, a membership-based, public interest organization, is defined as an individual by law) had the right under federal law to ask a state circuit court judge to review a pollution permit.
However, Appleton Coated intervened in this action and asked the court to dismiss the case on the basis of two arguments. First, the company said the DNR’s permit decision was not final (and not reviewable) until the permit is reissued in five or more years. Second, the company said that CWAC, as an individual petitioner, had no right to seek judicial review of a WPDES permit.
On July 31, 2013, the state Circuit Court granted Appleton Coated’s motion to dismiss the case, agreeing that CWAC, as an individual, had no right to challenge a pollution permit. The Clean Water Action Council, represented by MEA, appealed the decision.
On April 29, 2014, the appeals court affirmed the circuit court’s decision dismissing Clean Water Action Council’s complaint. The Court held that the Supreme Court already decided that a contested case hearing is a prerequisite to seeking judicial review of the DNR’s WPDES permitting decisions. The implication of this ruling is that individual persons do not have the right to challenge WPDES permits in Wisconsin because a contested case hearing is available. Yet a contested case hearing requires five or more persons.
This decision violates the Clean Water Act which prohibits states from restricting the rights of individual petitioners to request a judicial review. This is one of the issues that the EPA identified in its “75 issues” letter to DNR following the Fort James case. Prior to the Court of Appeals decision, the Environmental Protection Agency, based on the Wisconsin Attorney General’s opinion that individuals (and individual groups such as CWAC) did have a right to challenge a WPDES permit such as this action, had determined that Wisconsin law complied with the Clean Water Act. The Appleton Coated permit challenge followed the procedure that the Wisconsin State Attorney General identified was the only option available for challenging a permit.
The Clean Water Action Council is taking their case to the state Supreme Court in another attempt to appeal the lower courts’ decisions. The right to seek review of pollution discharge permits issued by the DNR is not only required under state law and the federal Clean Water Act, but is fundamental to a fair and effective legal system. Under the Court of Appeals ruling, a property owner downstream from a wastewater discharger would be unable to protect her property interests from an unlawfully permitted discharge of toxic pollutants. Supreme Court review is needed to correct the Court of Appeals error and ensure that any citizen who is adversely affected the DNR’s actions has some avenue of relief.
On May 29, 2014, CWAC requested a state Supreme Court review of the appeal and we are waiting to hear if the court will accept the case.