Midwest Environmental Advocates is a nonprofit environmental law center that works for healthy water, air, land and government for this generation and the next. We believe that every citizen has the potential to make a difference.

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Appeals court opinion shows need for better state laws to protect downstream waters

Dec 02, 2015

Last week, the Wisconsin Court of Appeals issued a decision in a case that showed how 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 state's ability to fully comply with the federal Clean Water Act.

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 legal challenge to the DNR’s renewal of the Domtar Corporation’s wastewater permit. The group asked the court to clarify whether the DNR is required to protect the Wisconsin River from the impact of phosphorus discharges as well as downstream lakes before renewing water pollution permits that have a long-term impact on area waters, homes and businesses. The River Alliance of Wisconsin also joined the challenge.

Midwest Environmental Advocates supported the legal action 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.

“We all know pollution flows downstream," said MEA staff attorney Jimmy Parra. "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. We need improvements in our state laws and regulations or Wisconsin will continue to fall behind in the unresolved issues in Clean Water Act compliance.”

In 2010, the Wisconsin State Legislature passed innovative, watershed-based regulations to reduce phosphorus pollution. The new rules would allow the DNR to work in cooperation with farmers, waste water treatment plants and corporations like Domtar to clean up the watershed through cost-efficient and effective plans like adaptive management or water quality trading. In order for watershed-wide protections to work, however, the DNR must consider the health of downstream waters.

“It’s disappointing that Wisconsin’s phosphorus water quality standards, which were designed to protect our lakes, rivers, and streams, apparently have no bearing on this case,” said Matt Krueger, River Restoration Director with the River Alliance of Wisconsin. “If they don’t apply to protect phosphorus-impaired downstream waters in this instance, where do they apply?”

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 is 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.

For more background on this case as well as documents related to the litigation, please visit our legal action page.

/ tagged: water, government, federal, public trust doctrine