WI Res. Prot. Council v. Flambeau Mining Co., No. 12-2969 (7th Cir. 2013)Annotate this Case
The Wisconsin DNR decided to terminate a separate Pollutant Discharge Elimination System (WPDES) permit for Flambeau’s mining operation and to regulate Flambeau’s storm water discharge under its mining permit, allowing more frequent inspections. Flambeau has been in compliance since the permit issued in 1998. Plaintiff filed suit under the Clean Water Act’s citizen‐suit provision, 33 U.S.C. 1365(a)(1), alleging that Flambeau violated the CWA by discharging pollutants without a permit. They argued that the CWA permit shield did not apply because Flambeau did not have a WPDES permit and its mining permit was not issued pursuant to the CWA because Flambeau could not establish that the EPA had specifically approved the regulation under which the DNR issued the permit. The district court agreed and, after a trial, determined that Flambeau had violated the CWA and assessed penalties. The Seventh Circuit reversed, finding that the permit shield applies, characterizing the suit as an attempt to collaterally attack the WPDES program.