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Midwest Environmental Defense Center, Inc. v. Wisconsin Department of Natural Resources

ELR Citation: 43 ELR 20226
Nos. 12CV3352, (Wis. Cir. Ct., 09/19/2013)

A Wisconsin court held that the state environmental agency should have considered impacts on downstream water quality when it issued a state pollutant discharge elimination system permit to an industrial dairy processing plant. An environmental group challenged the permit, arguing that it would allow the plant to discharge wastewater into the Wisconsin River with levels of phosphorous that would degrade the water quality of lakes downstream and feed algae growth in violation of the state's 2010 phosphorus rule. The agency claimed that the phosphorus rule was designed to address point-of-discharge water quality and that downstream water quality consideration was optional. But the court disagreed. If the agency concludes that the plant's discharge contributes to an exceedance downstream, it does not have the discretion to ignore that exceedance. The plain meaning of the rule requires consideration of downstream impacts. Moreover, the agency's own guidance, as well as state and federal statutes, support this interpretation. Because the rule requires the agency to set water quality standards that are protective of downstream water when those waters have shown to be impacted, the court remanded the matter to the agency for further proceedings.