Madison Metropolitan Sewerage Dist. v. Committee on Water Pollution

• Citation: 260 Wis. 229,50 N.W.2d 424
• Parties: MADISON METROPOLITAN SEWERAGE DIST. v. COMMITTEE ON WATER POLLUTION et al.
• Decision Date: 04 December 1951
• Court: Wisconsin Supreme Court

Page 424

50 N.W.2d 424

260 Wis. 229

MADISON METROPOLITAN SEWERAGE DIST. v. COMMITTEE ON WATER POLLUTION et al.

Supreme Court of Wisconsin.

Dec. 4, 1951.

The action in the circuit court was upon the petition of Madison Metropolitan Sewerage District for judicial review under sec. 227.16, Stats., of an order of the Committee on Water Pollution, respondent, dated October 19, 1949, which order was subsequently reviewed and affirmed by respondent under sec. 144.56, Stats., in an order dated June 26, 1950. The city of Madison, Dane county, and H. O. Lord, a taxpayer of the city of Madison, were permitted to intervene. From a judgment affirming the orders reviewed, petitioner and H. O. Lord appeal.

The petitioner is a public corporation organized and existing under secs. 66.20 to 66.209, Stats., with powers of a municipal corporation for the purpose of carrying out the provisions of said sections.

The respondent Committee on Water Pollution is a public agency created under sec. 144.52, Stats., with powers and duties prescribed by statute.

Acting under sec. 144.05(1), as amended by ch. 435, Laws of 1949, on October 19, 1949 the respondent made and entered the following order:

'TO: Madison Metropolitan Sewerage Commission

Madison, Wisconsin

'Complaints having been made from time to time of odor nuisances in the Madison Lakes and particularly in Lakes Monona, Waubesa and Kegonsa and it appearing from various investigations, surveys, studies and public hearings relating thereto and particularly the public hearing held before this Committee on August 30, 31 and September 1 and 2, 1948, that such nuisance and pollution is caused primarily from the decay of plant growth in said waters, which plant growth is excessively stimulated by the effluent from your sewage treatment plants, said nuisance and pollution conditions having resulted among other things in the enactment of Chapter 435, Laws of Wisconsin for 1949; it further appearing that both your present Burke and Nine Springs plants are within ten miles of each of such lakes, which are each more than two square miles and less than six square miles in area:

'Now Therefore, Pursuant to said Chapter 435, Laws of 1949, and Chapter 144 of the Wisconsin Statutes, It Is Ordered:

'1. That on or before March 1, 1950 you shall submit to this Committee preliminary plans for eliminating the discharge of untreated sewage or treated sewage effluent from any and all of your present plants or from any primary or secondary plant into any of the above named lakes.

'2. That on or before June 1, 1950 you shall submit to this Committee Final Plans for eliminating any such discharge into any such lakes.

'3. That in accordance with said Final Plans your present method of disposing of sewage effluent be modified and improved and construction completed by not later than June 1, 1951 so as to eliminate the discharge of said untreated sewage or effluent from a primary or secondary treatment plant either directly or indirectly into any lake of more than two square miles or less than six square miles in any area located within ten miles of your plants (which includes Lakes Monona, Waubesa and Kegonsa.)

'4. In lieu of the actual construction in compliance with paragraph 3 of this order you may file with this Committee on or before June 1, 1950 such plans for advanced treatment of your effluent as in the judgment of this Committee will accomplish substantially the same results in eliminating the nuisance conditions as would be accomplished by diversion of the effluent from the above named lakes (without at the same time creating other objectionable or damaging results.)

'5. That your sewage and waste treatment plant be operated and maintained at all times so as not to create a nuisance or water pollution.'

Petitioner asked for a review of said order of the respondent pursuant to sec. 144.56, Stats., a hearing was had and the order was affirmed by the order of June 26, 1950, in which the following findings were made:

'1. That the Madison Metropolitan Sewerage District, serving a population greater than 45,000 persons, is the owner and operator of the Nine Springs treatment plant and the Burke plant.

'2. That sewage tributary to said treatment plants receives treatment in modern accepted facilities to produce an effluent satisfactory from the standpoint of biochemical oxygen demand and bacterial content but that said effluent contains substantial amounts of inorganic phosphorus and inorganic nitrogen.

'3. That the effluent from the Nine Springs plant drains into Lake Waubesa and the waters of Lake Waubesa drain into Lake Kegonsa and each of said lakes is more than two square miles and less than six square miles in area and each is located within ten miles of points of discharge of effluent from the Madison Metropolitan Sewerage District.

'4. That practicable and economical methods for removal of inorganic phosphorus and inorganic nitrogen from sewage plant effluents have not yet been developed.

'5. That plans for advanced treatment of said effluent to accomplish substantially the same results as diversion have not been submitted to the Committee on Water Pollution by the Madison Metropolitan Sewerage District.

'6. That inorganic phosphorus and inorganic nitrogen in the quantities discharged by the Madison Metropolitan Sewerage District into the waters of Lake Waubesa contribute substantially to the growth of blue-green algae of the type that creates objectionable conditions in Lakes Waubesa and Kegonsa.

'7. That removal or diversion of said sewage effluent from the waters of the above named lakes will diminish objectionable conditions by reducing the frequency and intensity of algal blooms.

'8. That discharge of similar effluents into flowing bodies of water has not resulted in the algal nuisance which prevails when such effluent is discharged into relatively static bodies of water such as Lakes Waubesa and Kegonsa.

'9. That diversion of said sewage effluent from the waters of the above named lakes into the Yahara River below Lake Kegonsa can be accomplished at a cost which has not been shown to be unreasonable.

'10. That by-passing of raw sewage to Lake Monona occurs at times of excessive rainfall and during periods of power failure, and that it is not economically practicable to so design a sewerage system as to completely eliminate by-passing of untreated sewage.'

The respondent's conclusions of law recited the general prohibitions of sec. 144.05(1), Stats.; stated that said section is presumptively a valid statute unless declared otherwise by a court of competent jurisdiction; that it is the duty of respondent to enforce said law; that the order of October 19, 1949 is valid and reasonable. Respondent therefore affirmed the order of October 19, 1949 in all respects.

The Madison Metropolitan Sewerage District includes all of the city of Madison, the villages of Middleton, Shorewood Hills, Maple Bluff and Monona and portions of the towns of Burke, Blooming Grove, Madison, Middleton and Westport. The plant operated by petitioner consists of two sewage treatment plants, the Nine Springs plant and the Burke plant. These afford complete or secondary sewage treatment of recognized and approved types. The effluent from the Burke plant is carried by an interceptor to the Nine Springs plant and the treated sewage effluent from the Nine Springs plant is discharged into Nine Springs creek which flows into Lake Waubesa. The waters of Lake Waubesa drain into Lake Kegonsa. The areas of the Madison lakes, in square miles, are as follows: Mendota, 15.212; Wingra, 0.745; Monona, 5.444; Waubesa, 3.181; Kegonsa, 4.903. Approximately 14,000,000 gallons of effluent per day are discharged into the Nine Springs creek. The flow of the Madison lakes is from Mendota to Monona to Waubesa to Kegonsa.

Petitioner operates a modern, efficient plant in which sewage is treated so that the solids are largely removed and the organic solids remaining in suspension or solution are oxidized so that putrefaction does not take place. The effluent does not in itself produce disagreeable odors. The capacity of the plant is sufficient to take care of all of the sewage received by the district except at times of excessive rainfalls or during periods of failure of pumps or other equipment or other causes over which the district has no control.

It is conceded that the biological oxygen demand or bacteria content of the treated effluent is satisfactory, but that one of the results of such treatment is to transform organic nitrogen into inorganic nitrogen and organic phosphorus into inorganic phosphorus, and that both of these elements are important agents contributing to the abnormal growth of algae and other lake plants. The decay of the algae causes obnoxious and noisome odors.

Lake Waubesa, into which all of the effluent from petitioner's plants is discharged, receives 75 per cent of its inorganic nitrogen content and 87 per cent of its inorganic phosphorus content from said plants. Lake Kegonsa in turn receives 97 per cent of its inorganic phosphorus from lake Waubesa.

There was substantial evidence that the discharge of effluent into rivers does not produce the nuisance conditions that result from such fertilization of static waters, such as lakes Waubesa and Kegonsa. The order of the respondent contemplates diversion of effluent to the Yahara river at some point beyond the outlet of lake Kegonsa. Dr. Clair N. Sawyer testified that the contemplated diversion should not result in deterioration of the river. Dr. Sawyer was employed by the Governor's Committee appointed to study polution of the Madison lakes, and the report of that committee is an exhibit in this case.

The minimum cost of diverting the effluent to a point beyond lake Kegonsa was estimated by various witnesses at amounts of $1,702,557, $2,076,798 and $2,665,000 with other figures as high as $3,300,000 depending upon the type of...