03-3809 Friends of Milwaukee’s Rivers v. Milwaukee Metropolitan Sewerage District

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“[W]e conclude that with respect to administrative enforcement actions, the ‘commencement’ of the action is tied in with the ‘comparability’ of the state statute to the federal provisions. Specifically, we hold that for the purposes of sec. 1319(g), an administrative action ‘commences’ at the point when notice and public participation protections become available to the public and interested parties. Because Wisconsin law does not authorize administrative penalty proceedings or fines, there are no administrative enforcement provisions ‘comparable’ to those of the Clean Water Act. Rather, when WisDNR decides that a violation requires enforcement, Wisconsin law provides that WisDNR ‘shall refer the matter to [WisDOJ] for enforcement,’ and WisDOJ ‘shall initiate the legal action requested by’ WisDNR. Wis. Stat. sec. 283.89(1)-(2). MMSD admits that Wisconsin’s permissive intervention statute is triggered only when the administrative enforcement advances to the stage at which a legal action is filed. (MMSD’s Br. at 39.) Thus, in Wisconsin, the ‘formal moment’ at which an action is commenced is when WisDOJ files a complaint with state or federal court because ‘[f]rom this formal moment enforcement becomes public.’ Wisconsin Envtl. Law Advocates v. Wisconsin Power & Light Co., 03-C-0739-S, at 17 (W.D. Wis. May 3, 2004).

“Contrary to the district court’s finding, we do not feel confident that the 2002 Stipulation will indeed result in elimination of the root causes underlying the large-scale violations alleged by the plaintiffs, regardless of the State’s and MMSD’s self-serving statements that it is intended to do so. We note the persistence of violations due to the same underlying causes even after the 1977 Stipulation was fully implemented (and despite a similar intention that the capacity-increasing projects would ‘eliminate dumping from sanitary sewers’). We also note the perhaps overly cautious pace adopted by the State in evaluating the effectiveness of the remedial projects required by the 1977 Stipulation-it took eight years and a notice of intent to sue from the plaintiffs before the State took any actions that went beyond investigating and evaluating the violations that have persisted even after the Deep Tunnel came on line. While the projects mandated by the 1977 Stipulation may have been calculated in good faith to ensure MMSD’s compliance, it should not have taken the State so long to arrive at the conclusion that the Deep Tunnel had been under-designed. These, along with MMSD’s own admissions that the 2002 Stipulation is aimed at reducing, not eliminating, violations, are insufficient to indicate a diligent prosecution.”

Reversed and Remanded.

Appeal from the United States District Court for the Eastern District of Wisconsin, Clevert, J., Cudahy, J.