Citizen Petition for Corrective Action or Withdrawal of NPDES Program Delegation from the State of Wisconsin
Since filing of the PCA in October 2015, Midwest Environmental Advocates, on behalf of 16 citizen Petitioners, have had several productive discussions with U.S. Environmental Protection Agency Region 5 staff to understand how the Petition process will work. Most recently, EPA conducted a review of certain water pollution permits at Wisconsin Department of Natural Resources to continue investigating the claims outlined in the Petition. EPA staff also met briefly with some of the citizen Petitioners for to provide an in-person progress report and hear why Petitioners signed onto the PCA. It is clear from these meetings that MEA and the Wisconsin Department of Natural Resources are regularly discussing the claims outlined in the Petition and how the EPA will decide whether certain water pollution permitting deficiencies are ‘resolved.’
EPA Region 5 notified the DNR and the 16 Petitioners in March 2016 of a draft procedure for EPA’s investigation of the claims detailed in the PCA. EPA considered Petitioners’ comments before providing a final investigation protocol in June 2016. Petitioners and MEA are confident that the protocol is a tool with great possibility, but both the DNR and the Wisconsin Legislature must be willing to respond promptly to the EPA’s findings if this tool is going to make a real difference.
EPA continues to investigate certain claims set forth in the Petition and provide regular, publicly-available updates regarding which claims are resolved and, for unresolved issues, what corrective action(s) the state must take. MEA and Petitioners feel that completion of the EPA’s preliminary investigation phase within calendar year 2017 is reasonable.
Also since the filing of the PCA, Petitioners have received meaningful, consistent support from business groups, lake and river associations, faith communities, and others. It’s clear that a diversity of groups and individuals are eager to talk about the gap between our universal need for safe lakes, rivers, and drinking water, and the way in which our state natural resources agency is currently protecting Wisconsin’s waters.
What is a Petition for Corrective Action?
The Petition for Corrective Action is a formal request to the U.S. Environmental Protection Agency to take action to correct the ways in which a state is not following federal water pollution laws.
Facilities in Wisconsin that want to discharge pollutant to our waters seek a permit from the Wisconsin Department of Natural Resources, not from the federal Environmental Protection Agency. The landmark Clean Water Act allows for states to manage their own water pollution permitting programs, or the states' versions of National Pollutant Discharge Elimination System permits. The partnership between state and federal governments balances EPA oversight with state management.
However, when a state operates its program in violation of the Clean Water Act, the EPA has authority to step in to correct noncompliance or resort to issuing permits for that state. To begin the process of asking the EPA to take this step, a Petition for Corrective Action is necessary. Petitions can come from EPA, and often come from environmental groups. Here, Midwest Environmental Advocates filed a Petition for Corrective Action on behalf of 16 Wisconsin water champions who have been personally impacted by the problems outlined in the Petition and whose stories show how attention to Wisconsin’s water quality is long overdue.
What is included in the scope of the Petition?
The Petition is a lengthy document that outlines the ways in which the state of Wisconsin is out of compliance with the federal Clean Water Act through a demonstrated lack of clear or effective implementation of the law, adequate enforcement, or proper legal authority. The Petition shows how:
- action of Wisconsin elected officials and the courts has left the DNR without the clear authority it needs to issue water pollution permits in a way that fully satisfies Clean Water Act requirements,
- even with the authority that the DNR has, the agency chooses not to operate its water permitting program in a way that complies with federal laws and regulations,
- the DNR’s program doesn’t include limits in water pollution permits that are protective enough of water quality, and
- the Petition discusses Petitioners’ right to receive a response from the EPA in a reasonable timeframe.
The full text of the Petition and a more general outline of the document are available in the resources section below.
Why should EPA respond to the Petition? What should we expect from the EPA?
Federal law requires at minimum that the EPA respond to this Petition—the right to submit the Petition is given by federal law and the EPA cannot ignore Petitioners’ requests. The EPA has some flexibility in the manner and timing of its response, but the agency cannot unreasonably delay a response or action.
Petitioners anticipate asking the EPA hold a public hearing to give Wisconsinites have chance to explain the real, wide-sweeping impacts of water pollution in Wisconsin. The key is that the EPA’s response must address all aspects of the broken water permitting program as Petitioners detail in their submittal.
What role do citizens play?
Citizens are the fuel and the reason for this Petition. Though other states have submitted similar Petitions to the EPA, this action is unique in that it is filed by individual Wisconsin residents rather than an organization. Sixteen Wisconsin residents have given their time, expertise, and testimonials to show how the failure of the DNR to operate its water pollution permit according to the Clean Water Act has a real impact on real people.
Water discharge permitting is complex, involving statutes, rules, and lengthy permits. But beyond the legal and technical complexities, citizens' experiences with declining water quality in Wisconsin are what should be a priority for our government. The urgency of the response of regulatory agencies and the Wisconsin State Legislature to the concerns outlined in this Petition will have a true and long-term impact on the ability of Wisconsinites to use and enjoy our State’s water resources.
Submitting the Petition to the EPA
Petitioners sent the Petition to the EPA on October 20, 2015. On the same day, Petitioners appeared with key partners and Midwest Environmental Advocates' staff and board members at press conferences in Green Bay, Madison, and Menomonie. Petitioners asked for a written response from the EPA within 30 days and asked that both the DNR and EPA work with Petitioners and interested public to promptly start meetings and other collaborative efforts to bring the DNR’s water pollution permitting program into compliance with the Clean Water Act.
The EPA must require the DNR to quickly resolve all outstanding issues. The Petitioners' request is urgent as the quality of Wisconsin’s waters will continue to decline while the DNR dedicates inadequate attention to fulfilling its public trust responsibilities to protect our State’s water resources.
Call or email MEA staff attorney Tressie Kamp for information on the content of the petition: (608) 251-5047 x 8 or firstname.lastname@example.org.
For media inquiries, interviews with Petitioners or contacts of supporting organizations, call or email MEA communications staff Stacy Harbaugh: (608) 251-5047 x 1 or email@example.com.
Petition Outline (PDF)
EPA website on state NPDES program withdrawl petitions - tracking petitions in the United States, searchable by map (URL)
EPA website on Wisconsin NPDES program withdrawal petition - documents related to the petition including supplementary Water Quality Guidance for the Great Lakes System (URL)
2011 letter from EPA to Wisconsin DNR on 75 points of deficiency with Clean Water Act compliance (PDF)
EPA Legal Authority Review status document (URL) - Page links to PDF document which summarizes the current status of EPA’s review of the State of Wisconsin’s actions taken to address the 75 issues identified in the legal authority review.
2/9/2016 letter from EPA's Kevin Pierard, NPDES Program Branch Chief to Pam Biersach, DNR Watershed Management Bureau Director responding to Petition-related conference call and pending review process (PDF)
5/9/2016 letter from U.S. Senator Tammy Baldwin (WI-D) to the U.S. Environmental Protection Agency encouraging the federal agency to work with Petitioners and the Wisconsin Department of Natural Resources, address Petition issues in a reasonable time frame, hold a hearing for the EPA to hear from the public, and to increase transparency around what progress is being made toward fixing specific deficiencies in Wisconsin's NPDES program (PDF)
June 2016 report by the nonpartisan Wisconsin Legislative Audit Bureau reviewing Department of Natural Resources' wastewater permitting and enforcement actions and spending over the last decade. The audit showed the extent of the backlog of water pollution permit renewals, high staff turnover (especially in CAFO monitoring), infrequent permitee inspections or enforcement actions, and CAFO permit renewals without determination of law compliance. The report also showed that only 36 of the approximately 1900 reports required to be submitted by CAFO permitees had been electronically recorded as being received.
6/28/16 EPA's final protocol for responding to issues related to Wisconsin's WPDES permit program presented in the Petition for Corrective Action for dedelegation of Wisconsin's authority to administer NPDES permits (PDF)
8/30/2016 EPA letter to former and retired DNR staff and division heads in response to their request for prompt action on Petition. Letter assures readers that not all 75 issues have been resolved and that the legal authority review is an ongoing process. (PDF)