903 F. Supp. 2d 690
W.D. Wis.2012Background
- Plaintiffs sue under the Clean Water Act citizen-suit provision alleging unpermitted discharges from Flambeau Mining's biofilter at the Ladysmith, Wisconsin site.
- Discharges contain copper and zinc; dispute over whether they reach navigable waters Stream C and the Flambeau River, or a nearby wetland.
- Defendant operated the mine under a 1991 mining permit; a 1998 modification retained industrial outlot facilities and created a 0.9-acre biofilter without clear permit-based authorization under the Clean Water Act.
- Active mining-era WPDES permit existed (1991/1996 reissuance) but was terminated in 1998; post-modification, stormwater is regulated under the Mining Permit rather than a §402 permit.
- Biofilter outlet has periodically contained copper above Wisconsin’s acute toxicity criteria; plaintiffs argue those discharges are unpermitted under the CWA.
- Court addresses standing, indispensability of Wisconsin DNR, and whether defendant’s permit status shields liability, ultimately allowing some CWA liability findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs have Article III standing to sue? | Gauger, Andresen, Flater have injuries and imminent plans to use the waters; recreation and health concerns suffice. | Plaintiffs’ injuries are too speculative or not personal to confer standing. | Yes; standing established for injury-in-fact, traceability, and redressability. |
| Is the Wisconsin Department of Natural Resources indispensable under Rule 19? | NDNR not necessary; action targets defendant’s CWA violations, not the agency’s conduct. | NDNR should be joined to protect its regulatory interests. | No; NDNR not indispensable; case may proceed without it. |
| Is defendant's mining permit a §402 CWA permit or shields liability? | Mining permit is not an actual §402 permit; no shield applies. | NR 216.21(4) permits and EPA approval allow the mining permit to serve as a §402 permit. | Mining permit is not a §402 permit; no permit shield. |
| Are Stream C and the Flambeau River navigable waters under the CWA, and does a significant nexus apply to wetlands near the biofilter? | Stream C is a tributary with significant nexus to the Flambeau River; wetlands near biofilter may be waters. | Stream C north of Copper Park Lane is a grassy wetland with no navigable-water nexus; significant nexus not established for the wetland. | Stream C is navigable waters; significant nexus found for Stream C to the Flambeau River; wetland near biofilter not proven to have nexus. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury-in-fact, causation, and redressability)
- Sierra Club v. Morton, 405 U.S. 727 (1972) (injury-in-fact and redressability for standing in environmental cases)
- PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) (navigability and nexus considerations for waterway status)
- United States v. Cinergy Corp., 623 F.3d 455 (7th Cir. 2010) (agency interpretation and state regulation interact with federal standards)
- Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526 (9th Cir. 2001) (tributaries and nexus concepts in water regulation)