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In re Decision to Deny Petitions

Court of Appeals of Minnesota

February 4, 2019

In the Matter of the Decision to Deny the Petitions for a Contested Case Hearing and to Submit the Draft Crystal Lake Excess Nutrients Total Maximum Daily Load Study to the U.S. Environmental Protection Agency for Approval.

          Minnesota Pollution Control Agency

          Matthew C. Berger, Dean M. Zimmerli, Gislason & Hunter LLP., New Ulm, Minnesota (for relator Mikkelson)

          Keith M. Ellison, Attorney General, Stacey W. Person, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

          Considered and decided by Reilly, Presiding Judge; Schellhas, Judge; and Florey, Judge.

         SYLLABUS

         In establishing a total maximum daily load for an impaired body of water, the Minnesota Pollution Control Agency is not required to designate a separate load allocation for natural background.

          OPINION

          SCHELLHAS, Judge

         In this certiorari appeal, relator Greg Mikkelson, a farmer and landowner in the Crystal Lake watershed and surrounding area, challenges a decision by respondent Minnesota Pollution Control Agency (MPCA) approving a total maximum daily load (TMDL) for Crystal Lake. Relator asserts that (1) the MPCA's delay in approving the TMDL resulted in a denial of due process and renders the decision arbitrary and capricious; (2)the decision is unsupported by substantial evidence and affected by an error of law; and (3)the MPCA erred by denying relator's request for a contested-case hearing. We affirm.

         FACTS

         The MPCA's responsibility to approve TMDLs

         As part of its responsibilities under the federal Clean Water Act (CWA) and state Clean Water Legacy Act (CWLA), the MPCA identifies waters of the state for which effluent limitations[1] are not sufficient to assure compliance with water-quality standards, [2]and for which the MPCA therefore must establish total maximum daily loads (TMDLs) setting forth the maximum amount of pollutants that can be released into the waters consistent with water-quality standards. 33 U.S.C. § 1313 (2012); Minn. Stat. §§ 114D.05- .50 (2018). The CWA requires each state to adopt water-quality standards for bodies of water within the state's boundaries that "establish the desired condition of a body of water." In re Cities of Annandale & Maple Lake NPDES/SDS Permit, 731 N.W.2d 502, 510 (Minn. 2007) (Annandale); 33 U.S.C. § 1313(a)-(c). After establishing water-quality standards, a state is required by the CWA to identify "impaired" bodies of water within its boundaries that fail to meet those standards. 33 U.S.C. § 1313(d)(1)(A); 40 C.F.R. § 130.7(b) (2018). Then, for each impaired body of water, a state must establish a TMDL. 33 U.S.C. § 1313(d)(1)(C); Minn. Stat. § 114D.15, subd. 10.

         A TMDL is "a scientific study that contains a calculation of the maximum amount of a pollutant that may be introduced into a surface water and still ensure that applicable water quality standards for that water are restored and maintained." Minn. Stat. § 114D.15, subd. 10; see also In re Alexandria Lake Area Sanitary Dist. NPDES/SDS Permit No. MN0040738, 763 N.W.2d 303, 306 (Minn. 2009) (Alexandria). A TMDL is expressed as

the sum of the pollutant load allocations for all sources of the pollutant, including a wasteload allocation for point sources, a load allocation for nonpoint sources and natural background, an allocation for future growth of point and nonpoint sources, and a margin of safety to account for uncertainty about the relationship between pollutant loads and the quality of the receiving surface water.

Minn. Stat. § 114D.15, subd. 10; see also 40 C.F.R. § 130.2(i) (2018) (defining TMDL as "[t]he sum of the individual [waste load allocation]s for point sources and [load allocation]s for nonpoint sources and natural background").[3]

         After completing a TMDL study, the MPCA must provide notice and accept comments on the draft TMDL, hold a contested-case hearing if warranted, and decide whether to approve the TMDL. Minn. Stat. § 114D.25, subds. 2-4. Once the MPCA has approved the draft TMDL, it is submitted to the United States Environmental Protection Agency (EPA) for final approval. 33 U.S.C. § 1313(d)(1)(C), (D)(2); Minn. Stat. § 114D.25, subd. 1a(2). Following EPA approval, "the [MPCA] prepares and adopts a TMDL implementation plan that details restoration activities needed to meet the approved TMDL's pollutant load allocations identified by the TMDL study." Alexandria, 763 N.W.2d at 306; see also Minn. Stat. § 114D.25, subd. 1(b) (listing duties of MPCA regarding TMDL).

         The Crystal Lake TMDL process

         Crystal Lake, at issue in this case, is a 335-acre lake in Blue Earth County. The lake has a contributing watershed of 14, 000 acres, 75% of which is agricultural land. Crystal Lake is considered hypereutrophic, meaning that it has excessive levels of phosphorus and algae that cause negative impacts on water quality. The phosphorus water-quality standard for Crystal Lake is 90 ug/L (micrograms per liter or parts per billion). Minn. R. 7050.0220 (2017). Following a toxic algae bloom in 2004, the MPCA placed Crystal Lake on the state's impaired-waters list in 2006 and initiated a TMDL study to determine the type and degree of pollutant-source reductions needed to achieve water-quality standards. During the 2008 and 2009 monitoring seasons for the TMDL study, total phosphorus (TP) averaged 264 ug/L, almost three times the water-quality standard.

         The TMDL study resulted in a Draft Crystal Lake Excess Nutrient TMDL Report (the report) being released for public comment on August 27, 2012. The report established a TMDL (the draft TMDL) of 6.04 lbs/day, composed of 0.05 lbs/day waste-load allocation (WLA) for pollution from point sources, 5.39 lbs/day load allocation (LA) for pollution from nonpoint sources and natural background, and 0.60 lbs/day margin of safety (MOS). On August 27, 2012, the MPCA published in the state register notice of the report and requested comments on the draft TMDL. The MPCA received six comment letters and two requests for a contested-case hearing, including a letter and request submitted by relator Greg Mikkelson.

         The public-comment period for the Crystal Lake TMDL closed on September 26, 2012, and the MPCA took no further action on the TMDL until March 12, 2018, when it issued Findings of Fact, Conclusions of Law, and an Order denying the requests for a contested-case hearing and directing that the TMDL be submitted to the EPA for approval after completion of any judicial review.

         This certiorari appeal follows.

         ISSUES

I. Did the MPCA's delay in approving the TMDL result in a denial of due process to relator or render the decision arbitrary and capricious?
II. Is the MPCA's decision unsupported by substantial evidence or affected by an error of law by virtue of the MPCA's failure to assign a separate load ...

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