Does a discharge of phosphorus from a new municipal wastewater treatment plant contribute to the impairment of listed impaired waters in violation of Clean Water Act regulations when the phosphorus increase from that discharge is offset by reduction from other sources?

In the Matter of the Cities of Annandale and Maple Lake NPDES/SDS Permit Issuance (Mn. App. No. A04-2033)(August 9, 2005).

The Cities of Annandale and Maple Lake currently discharge approximately 1,400 pounds of phosphorus to the North Fork of the Crow River, which drains to the Mississippi River and Lake Pepin. Lake Pepin is listed as an Impaired Water and a Total Daily Maximum Load plan is not expected until 2009. The cities applied for an NPDES permit for a new joint wastewater treatment plan that would discharge approximately 3,600 pounds per year of phosphorus -- an amount which the Minnesota Pollution Control Agency (MPCA) conceded would affect the Lake Pepin watershed. The MPCA granted the permit, noting that the increase in phosphorus discharge would be offset by a decrease of 53,500 pounds in phosphorus discharge to the North Fork through a new wastewater plant in Litchfield. The Minnesota Center for Environmental Advocacy challenged the permit, and the Minnesota Court of Appeals decided that the permit was wrongly issued. The Court held that a reduced discharge from other sources does not rectify a violation of water quality standards under 40 C.F.R. § 122.4(i). The dissent argued for more deference to the MPCA and speculated that the majority's approach will effectively preclude issuance of a permit for discharge to an impaired water prior to completion of a TMDL.

Full text of ruling

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