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Minnesota Center for Environmental Advocacy Relator v. City of Winsted

Court of Appeals of Minnesota

January 30, 2017

Minnesota Center for Environmental Advocacy, Relator,
v.
City of Winsted, Respondent, Minnesota Pollution Control Agency, Respondent.

         Minnesota Pollution Control Agency Permit No. MN0021571

         Affirmed

          Kathryn M. Hoffman, Elizabeth R. Lawton, Minnesota Center for Environmental Advocacy, St. Paul, Minnesota (for relator)

          Francis J. Eggert, Winsted, Minnesota (for respondent City of Winsted)

          Lori Swanson, Attorney General, Max H. Kieley, Ann E. Cohen, Assistant Attorneys General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

          Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Jesson, Judge.

         SYLLABUS

         Because 40 C.F.R. § 122.44(d)(1)(i)-(iii) (2016) are ambiguous regarding the data that the Minnesota Pollution Control Agency must consider in determining whether activity under a permit has the reasonable potential to cause or contribute to a violation of water-quality standards, we defer to the agency's reasonable interpretation of those regulations.

          OPINION

          SCHELLHAS, Judge

         In this certiorari appeal, relator challenges a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit that respondent Minnesota Pollution Control Agency (MPCA) issued to respondent City of Winsted (city) for its wastewater treatment plant, asserting that the MPCA failed to comply with the requirements of the federal Clean Water Act (CWA) in issuing the permit. We affirm.

         FACTS

         Based on its authority to adopt water-quality standards under the CWA and state statutes, the MPCA adopted river eutrophication standards (RES) in 2014. Eutrophication is a response to increased phosphorus loading that "is characterized by increased growth and abundance of algae and other aquatic plants, reduced water transparency, reduction or loss of dissolved oxygen, and other chemical and biological changes." Minn. R. 7050.0150, supb. 4(G) (2015). The RES are designed to protect Minnesota rivers and streams from excess algae, which can have negative impacts on aquatic life, drinking water, and water-based recreation. Although increased levels of phosphorus can cause eutrophication, they do not always do so. Because of this, the RES are not violated unless both an exceedance of the "cause criterion" (total phosphorus or TP) and at least one of the following five "response criteria" exist: chlorophyll-a (seston) (Chl-a); five-day biochemical oxygen demand (BOD5), diel dissolved oxygen flux, and pH levels. See Minn. R. 7050.0222, subp. 4b (2015).

         Among other purposes, water-quality standards like the RES are used to set limits in NPDES permits, which MPCA is authorized to issue under the CWA. On April 22, 2016, the MPCA issued an NPDES/SDS permit to the city for an existing wastewater treatment facility (facility), which discharges within the South Fork of the Crow River (South Fork) watershed. The permit requires the facility to upgrade facility technology and to move its discharge point from South Lake, which has a severe eutrophication impairment, to a new discharge location by the expiration of the permit on March 31, 2021.

         The permit authorizes a new discharge location to an unnamed creek that flows into Crane Creek and then into the South Fork. Specifically, discharge from the facility will flow through six reaches of water: (1) an unnamed creek (AUID '999);[1] (2) Crane Creek (first reach) (AUID '646); (3) Crane Creek (second reach) (AUID '647); (4) Crane Creek (third reach) (AUID '524); (5) South Fork (first reach) (AUID '512); and (6) South Fork (second reach) (AUID '508). The discharge path from the new location joins the existing drainage path at the third reach of Crane Creek (AUID '524). Therefore, although technically designated as a new discharger under the CWA, the new discharge location will impact the ...


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