Is it arbitrary and capricious, sufficient to constitute a contested case hearing, for MPCA to interpret CWA regulations and state statutes as not requiring MPCA to separately determine the load allocation for nonpoint and natural background sources when “current research is not sufficient to differentiate”? Do CWA regulations conflict with MNDNR authority over water allocation?

In re Little Rock Creek, No. A16-0123, 2016 WL 6923602 (Minn. Ct. App. Nov. 28, 2016)

Landowners near little rock creek have standing under writ of certiorari to seek review MPCA submission of final TMDL Study to EPA because state regulations consider it a final agency action. However, on review of MPCA denial of a contested case hearing, court finds plaintiffs not entitled to contested case hearing. Court follows Minn. Envtl. Sci. & Econ. Rev. Bd. v. MPCA, 870 N.W.2d 97 (Minn. Ct. App. 2015) standing analysis for whether potential injuries from a not yet implemented standard can be challenged. That case was declaratory judgment, applies it here under writ. Not arbitrary and capricious for MPCA to interpret CWA regulations and Minn. Statute as not requiring MPCA to determine load allocation from nonpoint versus natural background sources when MPCA asserts “current research is not sufficient to differentiate.” Court finds plain language does not require nonpoint and natural background to be separate allocations. Separate issue allows MPCA to recommend restrictions on water allocations as part of TMDL implementation. Court finds CWA regs do not conflict with MNDNR authority over water allocation.

Must MPCA consider actual or anticipated reductions in nonpoint sources when setting Water Quality-based Effluent Limitations (WQBELs)?

MCEA v. MPCA, No. A15-1622, 2016 WL 3223177 (Minn. Ct. App. June 13, 2016)

Distinguishing CWA regulations on Water Quality-based Effluent Limitations (WQBEL) reasonable potential language, holding that MPCA need not consider actual or anticipated reductions in nonpoint sources when setting WQBEL, only when determining if WQBEL should be included in the NPDES permit. Applies Annandale substantial evidence standard, and pointing to Nutrient Reduction Strategy finds reasonable evidence in the record that “voluntary reductions from nonpoint source have occurred in the past and can be reasonably expected to occur in the future.” at *5. Finds MPCA interpretation of its own rules is not arbitrary or capricious. State can set site-specific standards using a 10 year average, and not each summer.

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.

Did the Minnesota Pollution Control Agency act lawfully in defining a “reservoir” on the basis of water residence time?

Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency (Minn. App. No. A04-1323) (May 24, 2005).

MPCA rules require a phosphorus limitation of one milligram per liter in an effluent that “discharge[s] … directly to or affects a lake or reservoir.” MCEA challenged the MPCA’s failure to include the phosphorus limit in a permit reissuance for the City of St. Cloud wastewater treatment plant, asserting that the plant’s discharge to the Mississippi River would affect the Coon Rapids Dam Pool more than 50 miles downstream. The Court of Appeals ruled that MPCA policy defining “reservoir” in terms of a water residence time of at least 14 days is not arbitrary, and that under this criterion the Pool is not a reservoir. The Court further found that MCEA did not carry its burden on showing that the discharge would “affect” the Pool adversely.

Can decentralized treatment be a “prudent and feasible alternative” to a wastewater treatment plant expansion in order to prohibit an expanded discharge to an Outstanding Resource Value Water?

Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency (Minn. App. No. A04-1324) (May 17, 2005).

MPCA rules prohibit a new or expanded sewage discharge to an “Outstanding Resource Value Water” unless there is no “prudent and feasible alternative.” Further, if permitted, the discharge must be restricted to the extent necessary to preserve the characteristics for which the water qualifies as an ORVW. The Court of Appeals reversed MPCA’s grant of a permit for an expanded discharge to the Rum River from the City of Princeton wastewater treatment plant. Despite the deference due the agency, it found the MPCA’s decision to lack “substantial evidence” to support it because of inadequate consideration of an option combining a smaller expansion with decentralized wastewater treatment. The Court also found that while high water quality is one basis for the Rum River’s ORVW designation, the MPCA had not made findings that the permit would preserve water quality. Finally, the Court agreed with MCEA that before the MPCA can find that a proposed permit will preserve the “existing high water quality” of an ORVW, it first must define that “existing high quality” in terms of the levels of specific pollutants or other means it finds in its technical judgment to be appropriate.

May a single Total Maximum Daily Load be set for a basin encompassing a number of impaired reaches if it does not provide for attainment of water quality standards on each reach?

Minnesota Center for Environmental Advocacy v. U.S. Environmental Protection Agency (D. Minn. Civ. No. 03-5450) (June 23, 2005) (memorandum and order).

The EPA approved a Total Maximum Daily Load determination by the Minnesota Pollution Control Agency for fecal coliform bacteria in the Lower Mississippi River Basin. The U.S. District Court agreed with the MCEA that while a TMDL could be set basinwide, it must be adequate to ensure that applicable water quality standards are met in each of the 20 impaired river reaches and cannot be based on aggregated basinwide data. It further agreed with the MCEA that: (a) stream impairment levels on which the TMDL determination is made must be assessed by month and cannot be aggregated; (b) a TMDL must provide for water quality standards to be reached and cannot be denominated as “phased” to avoid that obligation; and (c) straight-pipe septic system discharges must be included in the TMDL allocation as “point sources.”

May a state enforce its water quality standards against a U.S. Army Corps of Engineers impoundment located on an interstate river?

North Dakota v. U.S. Army Corps of Engineers (In re Operation of the Missouri River System Litigation), 320 F. Supp. 2d 873 (D. Minn. 2004) (memorandum and order).

The State of North Dakota sued the United States Army Corps of Engineers for violating North Dakota water quality standards for dissolved oxygen and temperature through maintenance of the Garrison Dam on the Missouri River. United States District Court Judge Paul Magnuson found that the waiver of sovereign immunity in the Clean Water Act (33 U.S.C. §1323(a)) does not extend so far as to permit a state to maintain an enforcement action “that requires absolute compliance by the Corps, in the controlled operation of a major river system that runs through many states.” Judge Magnuson noted the language of 33 U.S.C. §1371 stating that the CWA shall not be construed to “affect[ ] or impair[ ] the authority of the Secretary of the Army to maintain navigation.” He also deemed principles of federal preemption to apply when otherwise each state along the river could seek to enforce its own water quality standards.

Related litigation in which the adequacy of the Corps’ Missouri River management manual was upheld is found at 363 F. Supp. 2d 1145 (D. Minn. 2004).

Do the NPDES permits for Owatonna and Faribault comply with the MPCA’s phosphorus rule?

In the Matter of City of Owatonna’s NPDES/SDS Proposed Permit Reissuance for the Discharge of Treated Wastewater; In the Matter of City of Faribault’s NPDES/SDS Proposed Permit Reissuance for the Discharge of Treated Wastewater (Minn. App. A03-331, A03-333) (January 6, 2004).

NPDES permits for Owatonna and Faribault reversed and remanded to Minnesota Pollution Control Agency for contested case hearing. Minnesota Center for Environmental Advocacy raised issues of fact on MPCA’s application of its phosphorus rule (restricting discharge to 1 mg/liter phosphorus where discharge affects lakes or reservoirs); permits were issued without 1 mg/liter restriction and combined impact of such restriction would decrease phosphorus loading to Lake Bylles by by 25 percent. Questions of fact regarding application of phosphorus rule and MPCA methodology exist, such that presentation to neutral ALJ in contested case would aid the agency in resolving disputed facts and making final decision.

Did the MPCA’s general stormwater permit for small cities meet the requirements of the Clean Water Act?

Minnesota Center for Environmental Advocacy v. MPCA (Minn. App. C6-02-1243)(May 6, 2003).

MPCA’s general permit covering stormwater discharge by small municipalities (NPDES Phase II) reversed and remanded for: failing to provide adequate public notice and opportunity to comment; filing to determine whether general permit would result in espanded discharges; and failing to provide that discharges shall reduce pollutants (rather than simply “minimize” them).

Does the NPDES permit for St. Cloud comply with the MPCA’s phosphorus rule?

City of St. Cloud Wastewater Treatment Facility Request to Adopt Summary Disposition . . . and to Issue the NPDES Permit St. Cloud, Minnesota (Minn. App. C3-03-75)(September 12, 2003).

MPCA’s wastewater permit to City of St. Cloud reversed and remanded for contested case hearing because MPCA failed to properly apply the phosphorus rule. The term “measurable impact” defined in the MPCA’s phosphorus strategy as an “individual contribution,” does not require that there be only one discharge source to the affected lake or reservoir for the 1 mg/liter phosphorus rule restriction to apply. (St. Cloud’s discharge responsible for 15-51 percent of phosphorus entering Coon Rapids Dam Pool.) Remanded to consider whether Coon Rapids Dam Pool is a “reservoir.” City of St. Paul, not City of St. Cloud, is legally responsible under Clean Water Act for any pollution entering the Vadnais Chain of Lakes through St. Paul’s aqueduct.

Does a wetland adjacent to an artificial channel 11 miles upstream of a navigable river fall under Clean Water Act jurisdiction?

United States v. Rapanos, 339 F. 3d 447 (6th Cir. 2003).

The United States Court of Appeals for the Sixth Circuit reinstated the convictions of landowner John Rapanos for unlawfully filling wetlands. Following the decision of the U.S. Supreme Court in Solid Waste Agency of North Cook County v. Army Corps of Engineers, the landowner claimed that his filling did not trigger Clean Water Act jurisdiction because the wetlands, connected to a navigable river at least eleven miles downstream by an artificial channel and a non-navigable creek, did not meet the definition of “waters of the United States.” The Court of Appeals read the SWANCC case as narrowly striking down CWA jurisdiction based solely on a wetland’s use by migratory birds. It ruled that under settled case law, because the wetlands in question were adjacent to the channel and the channel was hydrologically connected to the navigable river, there was “an ample nexus to establish jurisdiction.”

Is a citizen plaintiff's claim to assess civil penalties moot once the defendants obtain an NPDES permit and are reasonably unlikely to commit future violations of the Clean Water Act?

Mississippi River Revival, Inc., West Side River Watch, Inc. and Mississippi Corridor Neighborhood Coalition, Inc. v. the City of Minneapolis; the City of St. Paul, No. 99-1596 DDA/FLN, No. 99-1597 DDA/FLN (D. Minn., May 2, 2001).

Yes. U. S. District Judge Donald Alsop dismissed cases brought by Mississippi River Revival, Inc., West Side River Watch, Inc, and Mississippi Corridor Neighborhood Coalition, Inc. against the cities of Minneapolis and St. Paul. The Minnesota Pollution Control Agency delayed action for eight years on the cities' permits under the National Pollution Discharge Elimination System (NPDES) requirements of the Clean Water Act, prompting the plaintiff organizations to sue the cities in October 1999. (The Clean Water Act prohibits discharge of stormwater into the Mississippi River unless the discharger complies with NPDES requirements.) Finally, the MPCA issued the NPDES permits to Minneapolis and St. Paul on December 1, 2000.

Judge Alsop concluded that "deterrence is the sole purpose underlying civil penalties, É [and therefore] a claim to assess civil penalties is moot if civil penalties no longer will deter the defendant from violating the CWA." Slip Op. at 5. Although a number of federal appeals courts have held otherwise, Judge Alsop found that these decisions conflict with the decision of the U. S. Supreme Court in Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 186 (2000), which held that civil penalties under the Clean Water Act only provide redress to citizen plaintiffs to the extent that the penalties "encourage defendants to discontinue current violations and deter them from committing future ones."

Thus, although it would appear that it was the plaintiffs' lawsuit that finally prompted the MPCA to issue the NPDES permits to the cities, the court ruled that the lawsuit is moot and therefore the plaintiffs would not be entitled to relief under the Clean Water Act.

When is an oil discharge to a navigable waterway "reasonably forseeable" so as to require a spill prevention control and countermeasures plan under the Clean Water Act?

Pepperell Associates v. U.S. Environmental Protection Agency, 246 F.3d 15 (1st Cir. 2001)

On October 17, 1996, a gasket ruptured on a boiler in a former textile mill in Lewiston, Maine. Over 300 gallons of oil spilled from the boiler room floor, down a stairwell, through a condensate pipe tunnel and into the City sewer. This occurred during a high water period, when the city sewer discharges into Gully Brook, so the oil spilled into the brook and then flowed into the Androscoggin River. Pepperell did not have a Clean Water Act (CWA) Spill Prevention Control and Countermeasures (SPCC) plan for the facility. On July 14, 1997, Pepperell removed all three of its underground oil storage tanks and on October 16, 1997 Pepperell installed a single, above-ground tank. On April 14, 1998, Pepperell submitted an SPCC plan to the EPA.

The EPA filed an administrative complaint against Pepperell alleging that it: (1) discharged oil into a navigable waterway, see 33 U.S.C. § 1321(b)(3); (2) failed to submit an SPCC plan as required by the Clean Water Act, see 33 U.S.C. ¤ 1321(j)(1), during the period the three tanks were in the ground (December 1985 through July 14, 1997); and (3) failed to have a plan after completion of the above-ground tank on October 16, 1997 until it submitted its plan on April 14, 1998. The administrative law judge found Pepperell to be liable in part and imposed a $24,876 penalty. On cross-appeals, the Environmental Appeals Board found Pepperell fully liable and imposed a $43,643 penalty on all three counts.

The First Circuit Court of Appeals held that Pepperell was subject to the CWA SPCC plan requirements when the underground tanks were in operation because due to the mill's location, it was "reasonably foreseeable" that an oil spill into navigable waters might occur. The Court found support for the EAB's conclusion that although the particular path the oil to took to Gully Brook was unforeseeable, other reasonably foreseeable paths existed. The fact that the oil reached navigable waters only because the spill occurred during a high water period did not make the spill unforeseeable because, on the record, PepperellÕs owners were both constructively and actually aware of overflows to Gully Brook during heavy rains.

The Court affirmed that Pepperell was liable specifically for the period from October 31, 1996 to July 14, 1997, even though the underground tanks were disconnected during that time. The Court reasoned that disconnecting without removing the tanks was not sufficient to reduce storage capacity to below the statutory minimum, and that disconnecting the tanks did not make an oil spill less reasonably foreseeable. The Court deferred to the EAB's reading that the "reasonably foreseeable" standard and storage capacity are distinct, so that the likelihood of a spill is not legally a function of the working capacity at a given time.

The court also ruled that Pepperell was liable for SPCC plan failure from July 1997, when it removed its underground tanks, until it finally submitted an SPCC plan in April 1998. Pepperell argued that the new tank constituted a new facility, thus allowing it six months from the October 1997 installation to submit a plan. Conversely, the EAB had held that the new tank was merely a facility modification, requiring that the SPCC be amended as of the date of installation. The Court of Appeals agreed with the EAB, reasoning that the removal of the old tanks and the installation of the new where not unconnected – particularly given the New England setting and the necessity of replacing the oil storage capacity by winter. Finally, the Court ruled that in the context of the 1,320-gallon regulatory threshold for SPCC plan applicability, adding a 20,000-gallon above-ground tank did "materially affect the facility's potential for discharge of oil into or upon the navigable waters of the United States," and thus trigger the SPCC plan amendment requirement.