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Wisconsin Resources Protection Council v. Flambeau Mining Co

ELR Citation: 43 ELR 20197
Nos. 12-2969, (7th Cir., 08/15/2013)

The Seventh Circuit reversed a lower court decision finding a Wisconsin mine operator liable under the CWA for discharging copper into navigable waters without a permit. The CWA's permit shield provision provides that if a NPDES permit holder discharges pollutants in accordance with the terms of its permit, the permit will "shield" the permit holder from CWA liability. Here, the operator was told by the state environmental agency that its mining permit constituted a valid Wisconsin pollutant discharge elimination system (WPDES) permit. Environmental groups argued that the operator was not entitled to the permit shield because EPA never approved the specific WPDES regulation at issue in this case. Under these circumstances, where the permitting authority issues a facially valid NPDES permit and the permit holder lacks notice of the permit’s (potential) invalidity, the permit shield applies. To hold otherwise would be inconsistent with the requirements of due process. Because the groups have not alleged or demonstrated that the operator failed to comply with its mining permit, the permit shield applies and the operator is deemed to be in compliance with the CWA. The court, therefore, reversed the lower court's grant of summary judgment in favor of the groups.