The U.S. Environmental Protection Agency (EPA) is considering that very question and wants answers—quickly.
In mid-July, the EPA sent DNR Secretary Cathy Stepp a strongly worded letter pointing out 75 ways in which Wisconsin laws and rules vary from federal Clean Water Act guidelines.
The letter was sent after a review of Wisconsin's water permitting process and covers everything from ways to measure pollution discharge to whether the DNR allows the public to fully weigh in on proposed permits.
Since 1974, the Wisconsin DNR has had the authority to administer the EPA's clean water regulations, which cover discharges from federal facilities, a pretreatment program, general permits and a biosolids program.
However, the letter from Susan Hedman, regional administrator for Region 5 of the EPA, identifies the EPA's concerns with the state's authority to carry out the federal clean water program. Some concerns require “immediate corrective action” while others are given a one- or two-year timeline. An explanation from state Attorney General J.B. Van Hollen is due by Oct. 15.
Does the DNR Have to Follow Federal Laws?
Dennis Grzezinski, senior counsel for Midwest Environmental Advocates, said the EPA's concerns about the state's Clean Water Act deficiencies are very serious. He said the letter was a vindication for the environmental community following a state Supreme Court decision earlier this year that determined that the DNR did not have to follow the Clean Water Act when issuing permits.
In that case, a coalition of environmental groups requested a public hearing on a proposed water permit for a Koch Industries-owned Georgia-Pacific paper plant that was discharging chemicals into the Fox River. The coalition argued that it should be granted a public hearing under provisions of the Clean Water Act. The DNR argued that it only had to follow state law, in which case the group could be denied a hearing.
After six years of legal battles, in March the state Supreme Court found that the DNR did not have to adhere to federal law when issuing water pollution permits. It argued that the EPA—and only the EPA—could enforce federal law, not the state DNR.
Voting in the majority in favor of Koch Industries and the DNR were the conservative justices—David Prosser, Patience Roggensack, Annette Ziegler and Michael Gableman—as well as Patrick Crooks. Chief Justice Shirley Abrahamson and Ann Walsh Bradley dissented.
Grzezinski said the EPA's letter shows that it's taken up the challenge presented by the conservative justices.
“The fact that they [the EPA] set deadlines, as well as a relatively short one for the attorney general, is hopeful,” Grzezinski said.
Russ Rasmussen, deputy administrator for the DNR's water division, said the DNR is reviewing the points raised in the letter and will respond—at least in part—by Oct. 15. He said that given the age of the DNR's water permitting program, it wasn't unusual for the EPA to find so many discrepancies between state laws and rules and the EPA's guidelines.
“States like Wisconsin that have [Clean Water Act authority] delegation for a long time tend to have more issues because when you've had delegation for 40 years, federal regulations change, laws change, sometimes you're not even aware of the changes that are made,” Rasmussen said. “It's sometimes difficult to keep up as far as state law is concerned.”
Limited Public Input Under Wisconsin Law
So how deficient is the DNR's water permitting system?
The EPA's letter includes a mind-numbing array of highly technical issues. But some alleged Clean Water Act discrepancies include the following policy issues:
- Public input: Federal rules allow “interested persons” to request a process to modify, revoke and reissue or terminate water pollution permits. But Wisconsin statutes do not allow an “interested person” to make those requests. “Therefore, the state's rules appear to functionally restrict the class of individuals that may seek review of a permit,” the letter states. “Additionally, Wisconsin's regulations do not appear to provide a mechanism for the termination of a permit.”
- Department of Transportation projects: Wisconsin law exempts Department of Transportation (DOT) projects from the storm water discharge permit or approval process normally required for other construction projects. The DNR cannot exempt the DOT from permitting requirements, the EPA's letter states.
But the DNR's Rasmussen said that the DNR has a memorandum of understanding with the DOT that has established a liaison process for these construction projects.
“While we work through this liaison process—which I might add EPA approved at the time it was first introduced in the 1990s—we probably give as much if not more scrutiny to DOT projects than to projects that get a traditional-type permit,” Rasmussen said.
- Department of Commerce role: Wisconsin allows the Department of Commerce—now the Department of Safety and Professional Services—to regulate erosion created by commercial building construction projects. The EPA letter questioned whether this conformed to federal law and requires the state's response to include a plan to amend this process.
Rasmussen said that this arrangement was created in 1991, during the Tommy Thompson administration. Gov. Jim Doyle's 2010-2011 state budget moved this responsibility to the DNR. Gov. Scott Walker's 2012-2013 budget moves it out of DNR once again to the new department. Rasmussen said under the old arrangement, the commerce department set erosion standards, while the DNR issued permits based on that standard and other factors.
