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Domtar Corporation water pollution permit challenge

— Petenwell and Castle Rock Stewards (PACRS) challenge to the Department of Natural Resources’ renewal of the Domtar Corporation’s permit to discharge phosphorus and wastewater into the Wisconsin River.

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On November 19, the Wisconsin Court of Appeals decided Wisconsin state statutes and regulations do not require the Wisconsin Department of Natural Resources to consider the health of downstream waters when regulating sources of phosphorus pollution. The court’s opinion underscores the gap between Wisconsin’s laws and our ability to fully comply with the federal Clean Water Act.

The legal action was necessary because the courts needed to clarify whether or not a complex set of state laws and agency rules give the DNR the authority to fulfill one of the most basic and important directives of the Clean Water Act: protecting downstream waters. The court’s review of state statutes and regulations show that the DNR has discretion on whether or not to protect downstream waters in pollution permitting. Unfortunately, the agency shouldn’t be able to pick and choose when and whether to regulate water pollution upstream if downstream communities will be negatively impacted.

Fixing the problem could require action by the DNR to amend the 2010 phosphorus rules. If the agency cannot or will not bring phosphorous rules into Clean Water Act compliance, it falls to the state legislature to give the DNR explicit authority to take downstream waters into consideration.

This multi-year litigation effort shows just one example of the gap between how our DNR manages water pollution permitting and regulations and the essential requirements of the federal Clean Water Act. On October 20, 2015, 16 petitioners from across Wisconsin filed a Petition for Corrective Action with the U. S. Environmental Protection Agency. The petition formally requested federal intervention in Wisconsin to bring the DNR into compliance with the Clean Water Act. The federal scrutiny will help the state agency and lawmakers on changes needed in legislation and rulemaking.

Ultimately, pollution flows downstream. When state agencies do not consistently act in the interests of the holistic health of our waterways and the public trust, the federal Clean Water Act is undermined. The people of Wisconsin need improvements in our state laws and regulations or our state will continue to fall behind in the unresolved issues in Clean Water Act compliance.

Case Summary

In January 2013, the Petenwell and Castle Rock Stewards (PACRS), a citizens’ group working to improve the water quality of the Wisconsin River, filed a petition in court to challenge the Wisconsin Department of Natural Resources’ renewal of the Domtar Corporation’s wastewater permit. The group says the DNR must consider the impact of phosphorus discharges into the Wisconsin River as well as downstream lakes before renewing permits that have a long-term impact on area waters, homes and businesses.

According to the group's President, Rick Georgeson, the organization has been working with property owners, neighbors and the DNR closely since 2008 to monitor and preserve lakes Petenwell and Castle Rock. The group needed to take this action to limit the phosphorus inputs into the already-impaired water and are working through the courts to ask the DNR to use its permit-granting authority to help clean up the lakes.  The Domtar Corporation’s permit renewal allows for wastewater to be discharged into the river, and subsequently into Lake Petenwell, that is more than twice the amount of phosphorus that the new rules allow.

In 2010, the Wisconsin State Legislature passed innovative, watershed-based regulations to reduce phosphorus pollution. The new rules allow the DNR to work with farms and corporations like Domtar to clean up the watershed through cost-efficient and effective plans like adaptive management or water quality trading. But businesses that rely on clean waterways and homeowners who want to live near clean rivers and lakes need the DNR to start enforcing these rules now, while helping companies build a long-term plan to deal with pollutants in wastewater.

Midwest Environmental Advocates supported PACRS in filing the court petition. More support came from the River Alliance of Wisconsin, whose Wisconsin River Initiative connects citizen water quality advocates in the Wisconsin River basin around the topic of reducing phosphorus pollution, from a variety of sources such as municipalities and treatment plants, but particularly from polluted runoff.

For more, read the press release from the Petenwell and Castle Rock Stewards from January 13, 2013 which explains why they filed suit against the DNR over continued phosphorus nutrient pollution in the Wisconsin River.

A motion by the Domtar Corporation to dismiss this case was denied by the court on July 31. The court affirmed that the citizens involved in Petenwell and Castle Rock Stewards had the right to file a petition to the DNR for issuing the water pollution permit for Domtar and the permit review moved forward.