Environmental Law — Clean Water Act

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United States Court of Appeals For the Seventh Circuit

Civil

Environmental Law — Clean Water Act

A mining company with a permit is protected from suit under the CWA by the permit shield provision.

“In sum, Flambeau was told by the WDNR that its mining permit constituted a valid WPDES permit. The WDNR’s authority to regulate Flambeau under its CWA authority was confirmed by NR § 216.21(4)(a), and Flambeau had no notice that NR § 216.21(4)(a) was potentially invalid as an exercise of that delegated authority. Under these circumstances, where the permitting authority issues a facially valid NPDES permit and the permit holder lacks notice of the permit’s (potential) invalidity, we hold that the permit shield applies. To hold otherwise would be inconsistent with the requirements of due process. Plaintiffs have not alleged or demonstrated that Flambeau failed to comply with its mining permit. Because the permit shield applies, Flambeau is deemed to be in compliance with the CWA, and summary judgment should have been granted for Flambeau. Therefore, we do not reach Flambeau’s other arguments on appeal.”

Reversed.

12-2969 & 12-3434 Wisconsin Resources Protection Council v. Flambeau Mining Co.

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Ripple, J.