Environmental groups, including one with strong ties to Juneau County, have asked a court to review the legality of a water discharge permit the state Department of Natural Resources recently granted to a Nekoosa paper mill.
In a petition filed in Dane County Circuit Court on Jan. 25, the Petenwell and Castle Rock Stewards and the River Alliance of Wisconsin allege that the permit broke the law because it fails to enforce new limits on the release of phosphorus into state waters.
“We work very closely with the DNR, and we’re friends with them,” said PACRS President Rick Georgeson. “They’re very much cooperative partners in this matter but we’re just disappointed in this particular decision.”
The PACRS members are Adams and Juneau County businesspeople and landowners, elected officials, members of recreational clubs and condominium associations and other people working to improve the water quality of Petenwell and Castle Rock flowages.
At issue is the permit the DNR granted the Domtar Corp. on Dec. 26 that spells out the limits of phosphorus the papermaker may legally discharge into the Wisconsin River at its Nekoosa mill.
Phosphorus is the chief cause of the summer algae blooms that sometimes turn the waters of Petenwell and Castle Rock, flowages on the river created by dams downstream from Nekoosa, into a smelly, pea-soup green mess.
Petenwell and Castle Rock are among the five biggest inland bodies of water in the state.
In 2010, the Wisconsin Legislature passed new regulations for phosphorus inputs by businesses that are among the toughest in the nation.
Matt Krueger, River Restoration Program manager for the River Alliance, said the groups’ petition aims to require the DNR to enforce the new standards.
“Why do we pass these phosphorus rules if we’re not going to use them?” Krueger said.
The dispute centers on limits in the 2010 regulations that created standards for phosphorus inputs into state waters from farms and businesses that are twice as stringent for lakes as they are for rivers.
The permit the DNR recently issued Domtar holds the company to the less stringent river standard and not the tougher standard that applies to Petenwell 15 miles downstream. The phosphorus standard for the river is 100 micrograms per liter. The standard for the flowages is 40 micrograms per liter.
The groups’ petition says that the permit should have held the company to the more stringent lake standard to protect the downstream flowages.
The man responsible for the permit is DNR wastewater engineer Mike Hammers, who said the environmental groups have interpreted the new regulations differently from the agency, though they have read the Domtar permit correctly.
“We wrote water quality-based limits for phosphorus in the Domtar permit based on the water quality criteria for the Wisconsin River and not Petenwell,” Hammers said.
That is because, Hammers said, the 2010 phosphorus regulation grants the agency some discretion in enforcement.
“We interpret the rule to say we at least have to look at the criterion for the immediate receiving water, but it gives us further authority to look at the downstream receiving water and to write limits to protect that, too,” Hammers said. “Our interpretation right now is, that second step is discretionary. We can do it. We’re not required to do it.”
Hammers said the proper phosphorus standard to impose on point-source polluters like Domtar cannot be fairly and accurately determined until a large, ongoing multiyear study of the upper Wisconsin River watershed is complete.
“We feel it’s effort at that level that’s necessary to calculate those limits,” Hammers said. “It’s the big picture. It’s the way to do it.”
That study by a consortium of federal and state agencies, including the DNR, and assisted by many private groups including PACRS, will not be complete until late this decade.
Krueger said there is no need to wait for the study results.
“It’s just bad precedent to say that in order to require less phosphorus inputs you need the backing of a TMDL,” Krueger said.
TMDL is Total Maximum Daily Load, a term contained within the federal Clean Water Act, which requires states to calculate the maximum amount of a pollutant a river or lake can accept each day and still meet water quality standards.
Krueger said the 2010 regulations contain innovative tools that allow companies such as Domtar to compensate for their own phosphorus inputs by mitigating upstream phosphorus inputs from activities unrelated to their own operations.
Innovations in the 2010 law have the potential to create winners all-round by letting companies like Domtar do more phosphorus abatement elsewhere for less money than the company would have to spend to cut phosphorus releases at its own operation, Krueger said.
“If DNR isn’t requiring them, with the permit, to do anything further then there’s no incentive … there’s no driver for this innovative option to take place,” Krueger said.
But Hammers said that the agency carefully weighed its options and potential outcomes, which include the possibility of a lawsuit by the company.
“Both sides can object,” Hammers said. “We haven’t heard from the industry yet. They still have time to object.”
Domtar is not a party to the court action. Company spokesman Craig Timm said last week that he was aware of the groups’ petition but declined further comment.
According to information from the company’s website, Montreal-based Domtar is one of the world’s biggest paper manufacturers with 2011 sales of $5.6 billion and a work force of about 9,300. Paper manufacturing at Nekoosa dates to the 1800s and the mill there became part of Domtar in 2001.
“No one’s trying to put Domtar or any other paper mill out of business,” Krueger said, adding that Wisconsin’s paper industry has drastically cut its discharges into the state’s waterways over the past 40 years.
But Krueger said that the Domtar case is an important test of the new phosphorus standards and an important step in reducing the algae bloom problem statewide.
“Too much phosphorous, lakes turn green in the summer and we need to do something about it,” Krueger said. “And we have the tools -- that’s the thing. We have the tools to do something about it.”
Georgeson, who lives in the Adams County town of Rome, said that his group has already worked on the algae problem for years and noted that the new Domtar permit will not expire until the end of 2017.
“By that time it will have been 11 years and nothing will have changed,” Georgeson said.
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