Challenges To WPDES Permits After Public Comment Period

According to a decision by the Wisconsin Court of Appeals, the Wisconsin Department of Natural Resources (WDNR) must consider all challenges to newly issued wastewater discharge permits, even after public comment period has closed and the final permit drafted. Opponents of a permitted project can challenge the validity of any final permit term or condition, even if no related objection or question was raised during the public review and comment period.
On April 13, 2010, the Court of Appeals released its decision in the case in which five citizens and two environmental groups challenged WDNR handling of their petition for review of a specific WPDES wastewater discharge permit.

WDNR argued that to preserve the right to challenge the final permit’s mercury sampling requirements, the challengers needed to have raised that issue during the public review and comment period. Since the draft permit’s mercury sampling requirements were not challenged during the public process, WDNR believed it did not need to reconsider those requirements and address them, if necessary, prior to the issuance of the final permit. The Appeals Court rejected the WDNR argument, believing that it would penalize members of the public for their failure to participate earlier in the public review process and be inconsistent with the state’s goal of encouraging public involvement.

The Appeals Court found it was not enough that WDNR review WPDES applications against State regulations and other state water pollution laws; WDNR must also address every permit challenge that is based on specific elements of federal regulations, as well.

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