Late last month, we noted that a permittee may not rely on the permit shield defense unless it has clearly informed the permitting agency of the nature of its discharge. Now we see the flip side. In Wisconsin Resources Protection Council v. Flambeau Mining Company, the 7th Circuit Court of Appeals held that Flambeau Mining was entitled to rely on the permit shield defense with respect to its stormwater discharges, without any NPDES permit at all, because the Wisconsin Department of Natural Resources had informed Flambeau Mining that, following mine closure, its stormwater discharges would be regulated through its mining permit and that it no longer required an NPDES permit. WDNR regulations specifically provided that, where a stormwater discharge is regulated through another program of equal stringency, no NPDES stormwater permit need be required.
This all seems fairly straightforward, but there was one twist to the case. EPA had not clearly approved of the MDNR regulatory changes that authorized reliance on parallel programs in lieu of NPDES permits. Instead, EPA had only issued a comment letter which could fairly be interpreted as an approval, but was not explicitly so.
The Court of Appeals said that this did not matter – and that in fact it need not determine whether the regulation had been approved by EPA. Instead, the Court relied on the fair notice doctrine. It held that, where Flambeau Mining was told that it no longer needed an NPDES permit and MDNR regulations explicitly provided MDNR with the authority to make that determination, due process considerations precluded enforcement against Flambeau Mining for failing to have an NPDES permit.
That seems reasonable to me. Delegated programs don’t work unless the regulated community can rely on the decisions by the delegated state agency pursuant to formally promulgated regulations.
A seemingly rare victory for reason.