Wisconsin Resources Protection Council , Et Al . v. Flambeau Mining Company

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 12‐2969 & 12‐3434
WISCONSIN R ESOURCES P ROTECTION
C OUNCIL , ET AL .,
Plaintiff‐Appellees, Cross‐Appellants,
v.
FLAMBEAU MINING C OMPANY ,
Defendant‐Appellant, Cross‐Appellee.
Appeals from the United States District Court for the
Western District of Wisconsin.
No. 3:11‐cv‐00045‐bbc — Barbara B. Crabb, Judge.
A RGUED A PRIL 23, 2013 — D ECIDED A UGUST 15, 2013
Before R IPPLE and HAMILTON , Circuit Judges, and
STADTMUELLER, District Judge.*
R IPPLE , Circuit Judge. The Wisconsin Resources Protection
Council, the Center for Biological Diversity and Laura Gauger
(collectively the “plaintiffs”) brought this action under the
* The Honorable J. P. Stadtmueller, of the United States District Court for
the Eastern District of Wisconsin, sitting by designation.

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2 Nos. 12‐2969 & 12‐3434
Clean Water Act’s (“CWA” or “the Act”) citizen‐suit provision,
33 U.S.C. § 1365(a)(1), alleging that Flambeau Mining Com‐
pany (“Flambeau”) violated the CWA by discharging pollut‐
ants without a permit. The district court denied Flambeau’s
motion for summary judgment, holding that Flambeau was not
protected by the CWA’s permit shield provision, id. § 1342(k).
After a bench trial, the district court determined that Flambeau
had violated the CWA and assessed penalties against Flam‐
beau. Because the CWA’s permit shield applies, we reverse the
judgment of the district court.
I
BACKGROUND
A. Relevant Statutory and Regulatory Framework
Congress enacted the CWA, 33 U.S.C. § 1251 et seq., in 1972
“to restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” Id. § 1251(a). To achieve this
purpose, the CWA generally prohibits “the discharge of any
pollutant by any person” into navigable waters of the United
States. Id. § 1311(a). However, such a discharge is permitted
when done pursuant to a national pollution discharge elimina‐
tion system (“NPDES”) permit. See id. §§ 1311(a), 1342. NPDES
permits are issued pursuant to section 402 of the CWA,
codified at 33 U.S.C. § 1342(a), which authorizes the Act’s
administrator to “issue a permit for the discharge of any
pollutant, or combination of pollutants, notwithstanding
section 1311(a).”
The Environmental Protection Agency (“EPA”) is the
CWA’s administrator. However, because the CWA also

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No. 12‐2969 & 12‐3434 3
embodies Congress’s intent “to recognize, preserve, and
protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution,” 33 U.S.C. § 1251(b),
it empowers the EPA to delegate its permitting and enforce‐
ment authority to individual states, id. § 1342(b). A state
seeking to administer the CWA must submit for EPA approval
“a full and complete description of the program it proposes to
establish and administer under State law.” Id. § 1342(b). 1 Once
the EPA has approved a state’s program, the EPA no longer
has authority to issue NPDES permits under the CWA, id.
§ 1342(c); at that point the state permitting authority is the only
entity authorized to issue NPDES permits within the state’s
jurisdiction. However, the EPA retains supervisory authority
over the state program and is charged with “notify[ing] the
State of any revisions or modifications [to the State’s program]
necessary to conform to [CWA] requirements or guidelines.”
Id. § 1342(c)(1).
It is undisputed that Wisconsin has obtained approval from
the EPA to implement and administer its own NPDES permit‐
ting program, which it calls the Wisconsin Pollutant Discharge
Elimination System (“WPDES”) program.2 The Wisconsin
Department of Natural Resources (“WDNR”) administers the
WPDES program and Wisconsin Administrative Code NR
1 The requisite steps for obtaining EPA approval are set forth in 40 C.F.R.
§ 123.21(a).
2 Appellee’s Br. 17 (“Wisconsin has obtained this EPA approval. . . .”); see
also generally Andersen v. Dep’t of Natural Res., 796 N.W.2d 1, 10‐11 (Wis.
2011).

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4 Nos. 12‐2969 & 12‐3434
§ 283 governs the WPDES program.3 Thus, within Wisconsin,
the WDNR, not the EPA, issues NPDES permits.
After obtaining initial approval of a state NPDES program,
a state with delegated authority can modify its program with
EPA approval. When a state wishes to do so, the regulations
direct it to “submit a modified program description” to the
EPA for approval. 40 C.F.R. § 123.62(b)(1). The EPA “will
approve or disapprove program revisions based on the
requirements … of the CWA.” Id. § 123.62(b)(3). “A program
revision shall become effective upon the approval of the
Administrator. Notice of approval of any substantial revision
shall be published in the FEDERAL REGISTER.[4] Notice of
approval of non‐substantial program revisions may be given
by a letter from the Administrator to the State Governor or his
designee.” Id. § 123.62(b)(4).
In 1987, Congress amended the CWA to include regulation
of storm water discharge. See The Water Quality Act of 1987,
Pub. L. No. 100‐4, 101 Stat. 7 (1987) (codified at 33 U.S.C.
§ 1342(p)). To comply with these amendments, Wisconsin
proposed modifying Wisconsin Administrative Code NR § 216
to provide WPDES storm water discharge permits. Under
Wisconsin’s proposed revisions, storm water would be
regulated either by a separate WPDES permit or, under NR
3 See, e.g., Andersen, 796 N.W.2d at 12 (“Wisconsin Stat. ch. 283 also codifies
the WPDES permit program.”).
4 40 C.F.R. § 123.62(b)(2) provides that “[w]henever EPA determines that
the proposed program revision is substantial, EPA shall” take various steps,
including providing for public notice and comment.

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No. 12‐2969 & 12‐3434 5
§ 216.21(3) (now renumbered NR § 216.21(4)(a)),5 a different
permit. The current version of NR § 216.21(4) provides:
(4) OTHER ENVIRONMENTAL PROGRAMS. If one
of the following conditions is met, the department
may determine that a facility is in compliance with
permit coverage required under s. 283.33, Stats. [part
of the WPDES program], and will not be required to
hold a separate permit under s. 283.33, Stats.:
(a) The storm water discharge is in compliance with
a department permit or approval, which includes
storm water control requirements that are at least as
stringent as those required under this subchapter.
Wis. Admin. Code NR § 216.21(4)(a) (2013).
Wisconsin submitted its proposed modifications, including
NR § 216.21(4)(a), to the EPA for approval in 1994. The EPA
apparently did not deem these modifications substantial and
so did not follow the approval process outlined in 40 C.F.R.
§ 123.62(b)(2). Instead, the EPA sent the WDNR comments on
the proposed changes, although it appears never to have
issued a formal letter of approval. Among its comments to NR
§ 216.21, the EPA wrote: “We concur with the approach
whereby facilities which are required under regulation to
obtain permits, but which … are currently controlled under
other regulatory mechanisms, are handled in special ways
5 For clarity, we will refer to this section by its current numbering.

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6 Nos. 12‐2969 & 12‐3434
under the State’s permit program.”6 After receiving and
responding to the EPA’s comments, Wisconsin enacted NR
§ 216.21(4)(a).
B. Flambeau’s Operations
From 1993 until 1997, Flambeau operated an active mine in
Ladysmith, Wisconsin, along the Flambeau River. During this
time, WDNR regulated Flambeau under a separate WPDES
permit and a mining permit, which also imposed restrictions
on Flambeau’s storm water discharge. Flambeau had a
reclamation plan in place to restore the mine site after the
cessation of active mining. However, the City of Ladysmith
and the Ladysmith Community Industrial Development
Corporation asked Flambeau to preserve the mine site’s
current buildings, which was not called for under the original
reclamation plan. Flambeau agreed and sought modification
from the WDNR of its reclamation plan and mining permit.
After public notice and comment, the WDNR approved
Flambeau’s new reclamation plan and modified its mining
permit.
In conjunction with its review of Flambeau’s proposed
modifications, the WDNR evaluated potential storm water
discharge from the mine site. Eventually, the WDNR decided
to terminate Flambeau’s separate WPDES permit and instead,
pursuant to its authority under NR § 216.21(4)(a), regulate
Flambeau’s storm water discharge under its mining permit.
This approach permitted the WDNR to conduct more frequent
inspections of the mine site than would a separate WPDES
6 R.62‐1 at 132.

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No. 12‐2969 & 12‐3434 7
permit. Moreover, the WDNR determined that this approach
was permitted under NR § 216.21(4)(a) because the WDNR
“had basically [determined there to be] a functional equiva‐
lence from the mining permit to the storm water permit at the
time; that [WDNR] could have equal protection, if not greater
protection, under the mining permit.”7 On March 20, 1998, the
WDNR sent Flambeau a letter “to clarify how the department
intends to regulate surface water management at the [mine]
site,” including storm water discharge.8 The letter stated:
The current water handling procedures are accept‐
able to the department and are consistent with the
Mining Permit, including the Surface Water Man‐
agement Plan, and the Wisconsin Pollutant Dis‐
charge Elimination System (WPDES) Permit. It is
our intent that the WPDES permit will continue to
regulate discharges from the site through outfalls
001 and 002 as long as water is being pumped from
one location to another on the site. Any discharge
through those outfalls must comply with the efflu‐
ent limits and monitoring requirements specified in
the WPDES permit[] … as long as the WPDES
permit remains in force. Once all permanent water
management structures and facilities are in place
and pumping is no longer necessary, discharges
through outfall 002 will cease to be covered under
the WPDES permit. At that time, stormwater man‐
7 R.274 at 81 (testimony of WDNR’s head of metallic mining).
8 R.62‐2 at 2.

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8 Nos. 12‐2969 & 12‐3434
agement will fall under the regulatory authority of
the Mining Permit and its associated plans.[9]
The WDNR reiterated its decision to regulate Flambeau’s
storm water discharge under the mining permit rather than a
separate WPDES permit again on September 8, 1998. The
WDNR wrote to Flambeau “to acknowledge that surface water
management and related discharges … . at the Flambeau
mining site are no longer subject to the provisions of the
Wisconsin Pollutant Discharge Elimination System (WPDES)
Permit. This is consistent with the regulatory approach
outlined in [the WDNR’s] letter to [Flambeau] dated March 29,
1998.”10 On September 23, 1998, the WDNR terminated Flam‐
beau’s WPDES permit.11 All of Flambeau’s subsequent storm
water discharges complied with the mining permit.
C. District Court Proceedings
Plaintiffs brought this action in the district court under the
citizen‐suit provision of the CWA, 33 U.S.C. § 1365, which
alleged that Flambeau discharged copper into navigable waters
without a permit. The parties filed multiple pre‐trial motions,
including Flambeau’s motion for summary judgment, alleging
that the plaintiffs’ suit was barred by the CWA’s permit shield
provision, id. Section 1342(k) of Title 33 provides that
“[c]ompliance with a permit issued pursuant to this section
shall be deemed compliance[]” with the CWA. The plaintiffs
9 Id.
10 R.66‐8 at 2.
11 R.66‐9 at 2.

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No. 12‐2969 & 12‐3434 9
contended that the permit shield did not apply because
Flambeau did not have a WPDES permit during the relevant
time period and its mining permit did not trigger the permit
shield because it was not issued pursuant to the CWA. The
plaintiffs’ argument was based on the claim that NR
§ 216.21(4)(a) was not part of the WDNR’s CWA program
because Flambeau could not establish that the EPA specifically
had approved of NR § 216.21(4)(a). The district court agreed
and denied Flambeau’s motion, ruling that § 1342(k)’s permit
shield did not apply because Flambeau did “not show[] that
the EPA has approved use of state mining permits via
§ NR 216.21(4) as substitute for [a WPDES] permit.” 12
A bench trial was held, after which the district court found
that Flambeau had violated the CWA because copper was
discharged eleven times from the mine site and reached
navigable waters of the United States without a permit. The
court emphasized that “[t]he amounts were so modest that I
would declare them de minimis”13 and that Flambeau’s “efforts
to protect the environment during its mining operations and
reclamation effort” were “exemplary” and “deserve commen‐
dation, not penalties.”14 However, because the CWA is a strict
liability statute, see Kelly v. United States EPA, 203 F.3d 519, 522
(7th Cir. 2000), the district court found Flambeau liable and
12 Wis. Res. Prot. Council v. Flambeau Mining Co., 903 F. Supp. 2d 690, 720
(W.D. Wis. 2012).
13 R.256 at 3.
14 Id. at 4.

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10 Nos. 12‐2969 & 12‐3434
imposed a penalty of $25.00 for each of the eleven discharges.15
The court also sua sponte declined to award plaintiffs attorneys’
fees under the CWA. It stated that fees were inappropriate
under the “unusual circumstances of th[e] case,” where “it
remains unclear … why [plaintiffs] would have expended so
much time and energy litigating against a company that seems
every bit as committed as they are to the protection of the
environment and preservation of water quality.” 16 Plaintiffs
moved for reconsideration of the denial of attorneys’ fees,
which was denied. Flambeau timely appealed and plaintiffs
cross‐appealed on the issue of their entitlement to fees.
II
DISCUSSION
Flambeau raises a variety of issues on appeal. It asserts that
the district court erred at summary judgment when it deter‐
mined that the CWA’s permit shield did not apply and that
Wisconsin is not a necessary party whose joinder is required.
Flambeau next submits that the district court’s determination
that Flambeau violated the CWA eleven times is erroneous
because the court failed to perform the correct analysis and
erroneously determined certain waterways to be within the
CWA’s jurisdiction. We begin with the permit shield.
A.
The CWA makes “unlawful” “the discharge of any pollut‐
ant by any person” “[e]xcept as in compliance with” certain
15 Id. at 39.
16 Id. at 38.

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No. 12‐2969 & 12‐3434 11
statutory provisions. 33 U.S.C. § 1311(a). One such provision is
the NPDES permit, which “sets out the allowable departures
from the CWA’s baseline of total liability for discharges.” Piney
Run Pres. Ass’n v. Cnty. Comm’rs, 268 F.3d 255, 266 (4th Cir.
2001). The CWA’s permit shield provision, 33 U.S.C. § 1342(k),
specifies that “if a [NPDES] permit holder discharges pollut‐
ants precisely in accordance with the terms of its permit, the
permit will ‘shield’ its holder from CWA liability.” Piney Run
Pres. Ass’n, 268 F.3d at 266; see also 33 U.S.C. § 1342(k) (provid‐
ing that “[c]ompliance with a permit issued pursuant to this
section shall be deemed compliance[]” for purposes of the
federal compliance provision and the citizen suit provision);
Coon v. Willet Dairy, LP, 536 F.3d 171, 173 (2d Cir. 2008) (noting
that, under the permit shield, “compliance with an authorized
permit is deemed compliance with the CWA, so as long as [the
defendant] was acting in accordance with its permit it could
not be liable in a citizen suit for CWA violations”). The
Supreme Court has explained that the permit shield’s purpose
is “to relieve [permit holders] of having to litigate in an
enforcement action the question whether their permits are
sufficiently strict. In short, [the permit shield] serves the
purpose of giving permits finality.” E.I. du Pont de Nemours &
Co. v. Train, 430 U.S. 112, 138 n.28 (1977).
Plaintiffs contend that Flambeau is not entitled to the
permit shield because Flambeau does not hold a WPDES
permit and its mining permit was not issued pursuant to the
CWA. Plaintiffs allege that Wisconsin’s NR § 216.21(4)(a),
although codified in Wisconsin’s Administrative Code as part
of the state’s WPDES program, is not part of Wisconsin’s
approved NPDES program because the EPA never approved

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12 Nos. 12‐2969 & 12‐3434
NR § 216.21(4)(a). Flambeau responds that the EPA did in fact
approve Wisconsin’s scheme and, in the alternative, even if it
did not, Flambeau had no notice that it needed a different
permit nor could it obtain one. In support of its position that
the EPA approved NR § 216.21(4)(a), Flambeau points to the
EPA’s comments on the proposed regulations, which indicate
that the EPA reviewed NR § 216.21(4)(a) and in which the EPA
stated that it “concur[red] with the approach whereby facilities
which are required under regulation to obtain permits, but
which … are currently controlled under other regulatory
mechanisms, are handled in special ways under the State’s
permit program.”17 The district court refused to apply the
permit shield, holding that for the shield to apply, a valid
permit is required. The court determined that Flambeau “has
not shown that the EPA has approved use of state mining
permits via § NR 216.21(4) as [a] substitute for [WPDES]
permit”18 and so had not established that it possessed a
qualifying permit for purposes of the CWA.
B.
Whether the CWA’s permit shield applies to Flambeau is a
question of law, which we review de novo. See Elusta v. City of
Chicago, 696 F.3d 690, 693 (7th Cir. 2012). We begin by noting
that there is evidence that the EPA approved NR
17 R.62‐1 at 132.
18 Wis. Res. Prot. Council, 903 F. Supp. 2d at 720.

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No. 12‐2969 & 12‐3434 13
§ 216.21(4)(a).19 However, we need not decide whether the EPA
approved this specific provision of Wisconsin’s WPDES
scheme 20 because, even if Flambeau’s permit were legally
invalid, we cannot, consistent with the requirements of due
process, impose a penalty on Flambeau for complying with
what Wisconsin deemed a valid WPDES permit. 21
Informed by basic principles of due process, it is “a cardinal
rule of administrative law” that a regulated party must be
given “fair warning” of what conduct is prohibited or required
19 See R.62‐1 at 132‐33 (comments from the EPA concerning Wisconsin’s
modifications of its WPDES program in response to CWA amendments); see
generally Brief of the State of Wisconsin as Amicus Curiae Supporting
Appellant. The regulations do not provide a definitive or exclusive form of
agency approval for a state’s NPDES program modification. The only
guidance provided is that “[n]otice of approval of non‐substantial program
revisions [which the EPA’s actions suggest Wisconsin’s were] may be given
by a letter from the Administrator to the State Governor or his designee.”
40 C.F.R. § 123.62(b)(4) (emphasis added).
20 The district court found that Flambeau made eleven unpermitted
discharges into the navigable waters of the United States. It also found that
“plaintiffs have not shown that any such discharges are occurring under
defendant’s new system of infiltration basins, installed in 2011 and
afterwards,” and so refused to issue plaintiffs’ requested injunction. R.256
at 35‐37. This finding has not been challenged on appeal. Therefore, because
only past, not continuing, violations of the CWA are before us, we need not
consider whether Flambeau’s mining permit is a WPDES permit or
determine whether the EPA approved NR § 216.41(4)(a).
21 We note that in its briefing at summary judgment to the district court
and to this court on appeal, Flambeau did not use the phrase “due process.”
However, its arguments concerning notice and fundamental fairness clearly
raise the issue of due process.

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14 Nos. 12‐2969 & 12‐3434
of it. Rollins Envtl. Servs. (NJ), Inc. v. United States EPA, 937 F.2d
649, 655 (D.C. Cir. 1991) (Edwards, J., dissenting in part and
concurring in part) (internal quotation marks omitted); see also
United States v. Cinergy Corp., 623 F.3d 455, 458‐59 (7th Cir.
2010) (holding that defendant could not be sanctioned and
found to have violated the Clean Air Act when it complied
with regulations as codified, despite having knowledge that
the EPA requested amendment of the regulations to prohibit
defendant’s conduct); United States v. Trident Seafoods Corp., 60
F.3d 556, 559 (9th Cir. 1995) (“[T]he responsibility to promul‐
gate clear and unambiguous standards is on the [agency]. The
test is not what [the agency] might possibly have intended, but
what [was] said. If the language is faulty, the [agency] had the
means and obligation to amend.” (first alteration added, other
alterations in original) (internal quotation marks omitted)).
The United States Court of Appeals for the District of
Columbia Circuit has explained:
In the absence of notice–for example, where the
regulation is not sufficiently clear to warn a party
about what is expected of it—an agency may not
deprive a party of property by imposing civil or
criminal liability. Of course, it is in the context of
criminal liability that this “no punishment without
notice” rule is most commonly applied. But as long
ago as 1968, we recognized this “fair notice” require‐
ment in the civil administrative context. In Radio
Athens, Inc. v. FCC, we held that when sanctions are
drastic—in that case, the FCC dismissed the peti‐
tioner’s application for a radio station
license—“elementary fairness compels clarity” in the

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No. 12‐2969 & 12‐3434 15
statements and regulations setting forth the actions
with which the agency expects the public to comply.
401 F.2d 398, 404 (D.C. Cir. 1968). This requirement
has now been thoroughly “incorporated into admin‐
istrative law.” Satellite Broadcasting Co. v. FCC, 824
F.2d 1, 3 (D.C. Cir. 1987); see also Rollins, 937 F.2d at
654 n.1, 655 (Edwards, J., dissenting in part and
concurring in part) (principle is not constitutional,
but “basic hornbook law in the administrative
context,” and “simple principle of administrative
law”).
Gen. Elec. Co. v. United States EPA, 53 F.3d 1324, 1328‐29 (D.C.
Cir. 1995) (citations omitted) .
In determining whether a party received fair notice, courts
frequently look to the regulations and other agency guidance.
“If, by reviewing the regulations and other public statements
issued by the agency, a regulated party acting in good faith
would be able to identify, with ascertainable certainty, the
standards with which the agency expects parties to conform,
then the agency has fairly notified a petitioner … .” Howmet
Corp. v. EPA, 614 F.3d 544, 553‐54 (D.C. Cir. 2010) (internal
quotation marks omitted). In United States v. Cinergy Corp., we
held that the defendant did not have fair notice of an EPA
prohibition under the Clean Air Act where it “complie[d] with
a State Implementation Plan that the EPA ha[d] approved,”
even though the defendant knew that the EPA intended for the
state to amend its plan. 623 F.3d at 458. Agency guidance
provided privately to a regulated entity other than the defen‐
dant also is insufficient because it does not permit the defen‐
dant to determine “with ascertainable certainty” what is

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16 Nos. 12‐2969 & 12‐3434
required of him. See, e.g., Rollins, 937 F.2d at 655 (Edwards, J.,
dissenting in part and concurring in part) (internal quotation
marks omitted); see also id. at 653‐54 (finding inadequate notice
where the EPA’s regulatory interpretation was provided only
in a letter to a private attorney, where “th[e] letter was never
sent to [the defendant] or its attorneys and it was never made
public”).
Here, Flambeau did not have notice that its permit might
not be a valid WPDES permit or that it needed a permit other
than the one the WDNR determined was required. First, it is
undisputed that Wisconsin, through the WDNR, is the proper,
and only, CWA administrator with authority to issue
NPDES/WPDES permits for Flambeau’s mine site. As Flam‐
beau transitioned from active mining to reclamation, the
WDNR determined that Flambeau did not require a separate,
specifically termed “WPDES” permit apart from its mining
permit and sua sponte terminated the separate permit. Thus,
the only available guidance from the only CWA permit‐issuer
was that the mining permit was a WPDES permit. This is the
same position the WDNR still maintains—that Flambeau’s
mining permit is a WPDES permit. We do not require a
regulated party to establish that the regulating agency had
actual authority to issue a facially proper, and therefore
presumptively valid, regulation before complying with the
agency’s command.
In this case, however, even if Flambeau consulted Wiscon‐
sin’s Administrative Code, in which the WPDES program is
codified, a reasonable, diligent search would have found
statutory authorization under the WPDES program for the
WDNR to regulate Flambeau in the manner it did and for the

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No. 12‐2969 & 12‐3434 17
WDNR to deem the mining permit a WPDES permit. As
plaintiffs’ briefing has demonstrated, to discover that there is
even a potential issue concerning the validity of NR
§ 216.21(4)(a) as part of the WPDES program, a party must
conduct legislative and regulatory history research, as well as
submit document requests to the WDNR. Private parties are
entitled to rely on “duly‐enacted, and therefore presumptively
legitimate, statute[s]” and regulations, so long as such reliance
is not unreasonable, such as when the citizen has actual notice
that the statute was not properly enacted or that the provision
plainly is unconstitutional. Cohn v. G.D. Searle & Co., 784 F.2d
460, 464 (3d Cir. 1986); see also id. (“We cannot say that [defen‐
dant’s] reliance is unreasonable where the statute’s constitu‐
tionality has never been judicially questioned and where the
reach of the constitutional principles involved is as uncertain
as here.”).
We recently affirmed the principle that a private party is
entitled to rely on published regulations. In Cinergy, we held
that the defendant could not be charged with violating the
Clean Air Act when it complied with the published version of
a regulation that was part of Indiana’s administration of the
Clean Air Act. The EPA had secured Indiana’s agreement to
amend the regulation but Indiana had yet to do so. The EPA
sought to impose a penalty on the defendant for violating the
future amended version of the regulation. The EPA submitted
that there was no due process problem because the defendant
“was ‘on notice’ that [the regulation] did not mean what it
said.” Cinergy Corp., 623 F.3d at 458. We rejected this argument,
holding that the defendant was only on notice of what “a
straightforward reading of [the regulation] permitted.” Id.

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18 Nos. 12‐2969 & 12‐3434
Similarly, Flambeau was on notice only of the command of the
only relevant CWA permitting authority and the powers
conferred on the WDNR by statute. It is this lack of notice that
distinguishes Flambeau’s case from those relied on by the
district court. 22
Plaintiffs contend that Flambeau was on notice that it
lacked a valid WPDES permit. According to plaintiffs, Flam‐
beau had notice because it possessed a separate WPDES permit
in the past and language on its mining permit requires the
permitee to obtain other permits as required by law.23 These
contentions are unpersuasive. First, Flambeau knew that it
needed a WPDES permit but was informed by the WDNR that
its mining permit would serve as a WPDES permit, consistent
with NR § 216.21(4)(a), and the WDNR sua sponte terminated
Flambeau’s separate WPDES permit. Plaintiffs maintained at
oral argument that Flambeau’s proper course of action was to
apply for a WPDES permit. However, the WDNR made clear,
by its termination of the separate permit and by its consistent
position that a separate WPDES permit was unnecessary, that
22 See, e.g., Citizens for a Better Env’t‐Cal. v. Union Oil Co., 83 F.3d 1111, 1120
(9th Cir. 1996) (refusing to apply the CWA’s permit shield where “[i]t is not
disputed that these regulations [governing modifications of NPDES
programs] were not followed” and so the defendant’s permit clearly was
insufficient); Oregon State Pub. Interest Research Grp., Inc. v. Pac. Coast
Seafoods Co., 361 F. Supp. 2d 1232, 1243 (D. Or. 2005) (holding that a state
permit did not trigger the CWA’s permit shield where “[n]othing in the
federal or state statutes provides that a state‐issued SCO is the equivalent
of an NPDES permit[]”).
23 See Appellees’ Br. 23.

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No. 12‐2969 & 12‐3434 19
it would not issue a separate permit. “The law does not require
the doing of a futile act,” Ohio v. Roberts, 448 U.S. 56, 74 (1980),
abrogated on other grounds by Crawford v. Washington, 541 U.S. 36
(2004), and so we shall not penalize Flambeau for failing to
apply for a separate WPDES permit after the WDNR termi‐
nated its prior one.
Second, the mining permit language directing the permit
holder to obtain all other permits required by law does not
answer the question. For NR § 216.21(4)(a) provides that the
WDNR can determine that a separate WPDES permit is
unnecessary. Moreover, neither of these facts—Flambeau’s
prior possession of a separate WPDES permit or the language
of its mining permit—put Flambeau on notice of the risk that
NR § 216.21(4)(a) was not actually approved by the EPA and
so was beyond the WDNR’s CWA authority. Rather, plaintiffs
have established only that Flambeau knew that it no longer
held a separate WPDES permit.
At bottom, plaintiffs are attempting to attack collaterally
the validity of Wisconsin’s WPDES program by requiring
Flambeau to prove that the specific provision of the program
under which the WDNR granted its putative WPDES permit,
NR § 216.21(4)(a), is valid. There are two problems with this
approach.
First, forcing a permit holder to establish that the undis‐
puted permitting entity had actual authority to issue the
permit, despite a facially valid law authorizing the entity to
issue the permit, would vitiate the permit shield. Permit
holders would be brought into court to establish not only the
validity of their permits, but also the validity of the issuing

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20 Nos. 12‐2969 & 12‐3434
entity’s asserted authority to issue such a permit, requiring
permit holders to prove the validity of legislative and regula‐
tory transactions to which they were not parties. This under‐
mines the purpose of the shield provision, which the Supreme
Court has stated is to “giv[e] permits finality,” E.I. du Pont de
Nemours, 430 U.S. at 138 n.28.
Second, plaintiffs’ approach constitutes a collateral attack
on Wisconsin’s WPDES program, specifically NR
§ 216.21(4)(a). Plaintiffs claim to challenge only Flambeau’s
conduct; however, integral to this challenge is plaintiffs’
assertion that Flambeau lacks a WPDES permit and that NR
§ 216.21(4)(a) is not, contrary to Wisconsin’s view and the
section’s plain language, part of the WPDES program. Plain‐
tiffs fault Flambeau for doing what its CWA administrator and
Wisconsin law authorize it to do. This is impermissible. See
Kelley v. Bd. of Trs., Univ. of Illinois, 35 F.3d 265, 272 (7th Cir.
1994) (holding that “insofar as the University actions were
taken in an attempt to comply with the requirements of Title
IX, plaintiffs’ attack on those actions is merely a collateral
attack on the statute and regulations and is therefore impermis‐
sible”); Milwaukee Cnty. Pavers Ass’n v. Fiedler, 922 F.2d 419, 424
(7th Cir. 1991) (“Insofar as the state is merely doing what the
statute and regulations envisage and permit, the attack on the
state is an impermissible collateral attack on the statute and
regulations. We add that the federal regulations explicitly
permit the state or other entity [to engage in the conduct
plaintiffs challenged].”).
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

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No. 12‐2969 & 12‐3434 21
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.
C.
Furthermore, we deny plaintiffs’ cross‐appeal. In order to
be entitled to attorneys’ fees under the CWA, plaintiffs must be
“a[] prevailing or substantially prevailing party.” 33 U.S.C.
§ 1365(d). Here, plaintiffs are not entitled to attorneys’ fees
because they have failed to establish a violation of the CWA.
Conclusion
Accordingly, we must reverse the judgment of the district
court.
REVERSED

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