Wisconsin Resources Protection Council, et al., Plaintiff-Appellees, Cross-Appellants,
Flambeau Mining Company, Defendant-Appellant, Cross-Appellee.
Argued April 23, 2013
Appeals from the United States District Court for the Western District of Wisconsin. No. 3:11-cv-00045-bbc — Barbara B. Crabb, Judge.
Before Ripple and Hamilton, Circuit Judges, and Stadtmueller, District Judge. [*]
Ripple, Circuit Judge.
The Wisconsin Resources Protection Council, the Center for Biological Diversity and Laura Gauger (collectively the "plaintiffs") brought this action under the Clean Water Act's ("CWA" or "the Act") citizen-suit provision, 33 U.S.C. § 1365(a)(1), alleging that Flambeau Mining Company ("Flambeau") violated the CWA by discharging pollutants without a permit. The district court denied Flambeau's motion for summary judgment, holding that Flambeau was not protected by the CWA's permit shield provision, id. § 1342(k). After a bench trial, the district court determined that Flambeau had violated the CWA and assessed penalties against Flam- beau. Because the CWA's permit shield applies, we reverse the judgment of the district court.
A. Relevant Statutory and Regulatory Framework
Congress enacted the CWA, 33 U.S.C. § 1251 et seq., in 1972 "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." Id. § 1251(a). To achieve this purpose, the CWA generally prohibits "the discharge of any pollutant by any person" into navigable waters of the United States. Id. § 1311(a). However, such a discharge is permitted when done pursuant to a national pollution discharge elimination system ("NPDES") permit. See id. §§ 1311(a), 1342. NPDES permits are issued pursuant to section 402 of the CWA, codified at 33 U.S.C. § 1342(a), which authorizes the Act's administrator to "issue a permit for the discharge of any pollutant, or combination of pollutants, notwithstanding section 1311(a)."
The Environmental Protection Agency ("EPA") is the CWA's administrator. However, because the CWA also embodies Congress's intent "to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, " 33 U.S.C. § 1251(b), it empowers the EPA to delegate its permitting and enforcement authority to individual states, id. § 1342(b). A state seeking to administer the CWA must submit for EPA approval "a full and complete description of the program it proposes to establish and administer under State law." Id. § 1342(b). Once the EPA has approved a state's program, the EPA no longer has authority to issue NPDES permits under the CWA, id. § 1342(c); at that point the state permitting authority is the only entity authorized to issue NPDES permits within the state's jurisdiction. However, the EPA retains supervisory authority over the state program and is charged with "notify[ing] the State of any revisions or modifications [to the State's program] necessary to conform to [CWA] requirements or guidelines." Id. § 1342(c)(1).
It is undisputed that Wisconsin has obtained approval from the EPA to implement and administer its own NPDES permit- ting program, which it calls the Wisconsin Pollutant Discharge Elimination System ("WPDES") program. The Wisconsin Department of Natural Resources ("WDNR") administers the WPDES program and Wisconsin Administrative Code NR § 283 governs the WPDES program. Thus, within Wisconsin, the WDNR, not the EPA, issues NPDES permits.
After obtaining initial approval of a state NPDES program, a state with delegated authority can modify its program with EPA approval. When a state wishes to do so, the regulations direct it to "submit a modified program description" to the EPA for approval. 40 C.F.R. § 123.62(b)(1). The EPA "will approve or disapprove program revisions based on the requirements … of the CWA." Id. § 123.62(b)(3). "A program revision shall become effective upon the approval of the Administrator. Notice of approval of any substantial revision shall be published in the FEDERAL REGISTER. Notice of approval of non-substantial program revisions may be given by a letter from the Administrator to the State Governor or his designee." Id. § 123.62(b)(4).
In 1987, Congress amended the CWA to include regulation of storm water discharge. See The Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 7 (1987) (codified at 33 U.S.C. § 1342(p)). To comply with these amendments, Wisconsin proposed modifying Wisconsin Administrative Code NR § 216 to provide WPDES storm water discharge permits. Under Wisconsin's proposed revisions, storm water would be regulated either by a separate WPDES permit or, under NR § 216.21(3) (now renumbered NR § 216.21(4)(a)),  a different permit. The current version of NR § 216.21(4) provides:
(4) OTHER ENVIRONMENTAL PROGRAMS. If one of the following conditions is met, the department may determine that a facility is in compliance with permit coverage required under s. 283.33, Stats. [part of the WPDES program], and will not be required to hold a separate permit under s. 283.33, Stats.:
(a) The storm water discharge is in compliance with a department permit or approval, which includes storm water control requirements that are at least as ...