Challenges To WPDES Permits Limited To State Rules

The Wisconsin Supreme Court has determined that Wisconsin Department of Natural Resource’s (WDNR) authority and the scope of its administrative review of Wisconsin Pollutant Discharge Elimination System permit challenges is limited to challenges based on state law and not whether the permit complies with federal law.

Petitioners had challenged a WPDES permit issued by WDNR, claiming that the permit did not comply with federal law and that state statutes require WDNR to ensure all WPDES permits comply with federal law. The WDNR refused to grant a hearing on the federal law challenges, arguing WDNR’s authority only allowed it to review WPDES permit challenges based on state law.

The Wisconsin Supreme Court agreed with the agency that, if followed to its logical conclusion, Petitioner’s position would render Wisconsin’s delegated CWA authority and its WPDES permit program moot. The court noted that EPA has authority to review and object to every WPDES permit issued by WDNR. In this case, EPA reviewed the proposed WPDES permit and also reviewed Petitioner’s claim that the permit failed to comply with federal law, yet EPA found no reason to object to the permit. Moreover, the court clarified that the proper remedy for Petitioner’s federal law challenges is to petition EPA to review or object to the WPDES permit issuance, and thereafter to appeal any EPA decision in the appropriate federal district court.

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