A federal court in Wisconsin has ruled that a mining company discharged copper and other contaminants from a mine in Ladysmith, Wisconsin, but has ordered a trial to determine whether discharged pollutants reached a stream that entered the Flambeau River. Wis. Res. Prot. Council v. Flambeau Mining Co., No. 11-45 (W.D. Wis. 4/13/12). Two environmental groups and one individual filed the lawsuit under the citizen suit provision of the Clean Water Act (CW A), 33 U.S.C. § 1365(a)(1), alleging that defendant was discharging pollutants without a Wisconsin or National Pollutant Discharge Elimination System permit. Defendant argued that plaintiffs lack standing to bring the lawsuit and that it did not discharge pollutants into navigable waters protected by the CW A.
The court ruled that, while plaintiff had established that defendant’s facility discharged pollutants, it was unclear from the evidence whether the discharges actually entered the stream or ended up in a nearby grassy wetland. According to the court, “[b]efore defendant can be held liable for its unpermitted discharges, plaintiffs must prove that defendant discharged pollutants into Stream C or that the wetland area near the biofilter outlet has a ‘significant nexus’ to the Flambeau River.” The court also held that plaintiffs have standing to sue because several of the plaintiff-group’s members have sufficiently alleged they were injured by the discharges.