Category: water resources

Minn Court of Appeals upholds new water quality standards for rivers and streams

Gary Taylor

by Gary Taylor

Minnesota Environmental Science and Economic Review Board, et al v. Minnesota Pollution Control Agency
Minnesota Court of Appeals, August 10, 2015

[For background, an article on the case can be found here.]

Petitioners in this case included the Minnesota Environmental Science and Economic Review Board (a coalition of cities believed to be most affected by the agency rules in question), The Coalition of Greater Minnesota Cities, the League of Minnesota Cities and the Minnesota Soybean Growers Association.  They brought this suit against the Minnesota Pollution Control Agency (MPCA) to challenge the rulemaking process (not the scientific basis for the rules) for adopting new numeric water quality standards (WQS) for certain pollutants to limit eutrophication** of rivers and streams.  The Court of Appeals addressed two issues raised by the parties: (1) the standing of the petitioners to bring suit, and (2) MPCA’s response to public comments on the proposed rules during the rulemaking process.

Standing.  MPCA argued that the petitioners lacked standing because they failed to specify any specific rights with are currently affected by he rulemaking process, and that their potential harms “were too tenuous and rely on too many indeterminate assumptions to establish standing.”  The Court of Appeals disagreed, finding that “petitioners are challenging a rule that created numeric standards, not merely the inclusion of certain rivers on a list that would eventually lead to numeric standards.  Petitioners are among the class of persons who would be affected by a change in WQS; the petitioning groups represent municipalities, wastewater-treatment facilities, sanitary sewer districts, and farming operations, all of which have a more particularized interest than the general citizenry.”  The Court of Appeals concluded that petitioners indeed did have standing.

Response to public comments. Petitioners alleged that MPCA did not comply with statutory rulemaking procedures because it failed to adequately respond to petitioners’ comments during the rulemaking process.  They argued that MPCA relied on outdated studies and failed to make the studies it relied on part of the public record.  Petitioners relied on federal caselaw for the proposition that agency responses to comments must be “meaningful”; that is, the agency must respond in a manner that states the main reasons for its decision and explains why the agency reached the decision it did.

The Court of Appeals refused to second-guess the agency’s use of, or reliance on its chosen scientific or technical sources.  Agency decisions enjoy “a presumption of correctness.” Agencies must at times

make judgments and draw conclusions from suspected, but not completely substantiated relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as fact, and the like.

The MPCA responded to all of the written comments received after each public hearing, including a summary of the comment and a response with citations to the documents or sources that provided the basis for the response.  Although petitioners did not agree with the rules adopted, the Court concluded that the MPCA sufficiently explained the reasons for their adoption and provided sufficient supporting documentation.  This met the test for “meaningful” response.

The Court declared the new water quality rules to be valid.

 

**Eutrophication is a syndrome of ecosystem responses to nitrogen and phosphorus, often leading to changes in animal and plant populations such as algae blooms and the proliferation of rooted plants.

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Landowner negligent in discharge of stormwater over neighbor’s property

hdankbar

by Hannah Dankbar

A.D., L.L.C. v 2004 SC Partners L.L.C.
(Iowa Court of Appeals, November 26, 2014)

2004 SC Partners L.L.C. is the current owner of Morning Hills Apartments.  A.D., L.L.C. bought property adjoining Morning Hills Apartments in 2009 and the two parties have had many conflicts since then. Starting in 2009 A.D. began to receive notices from the city of Sioux City and the Iowa Department of Natural Resources to solve a public nuisance relating to soil erosion and silting. The hillside between Partners and A.D. is highly erodible. A.D. filed an equity action in July 2011 petitioning to have Partners help solve this problem. A.D. sought money judgments for past damages and an order for Partners to abate the issue. Partners answered by saying this issue was already addressed in court and solved privately with A.D. saying they would solve the problem and that the damage was their fault. Partners filed a counter claim that A.D. had failed to comply with the settlement agreement and that they should stabilize the slope and to compensate Partners for the damage to their land from the prior suit.

In 2012 Partners filed a motion for summary motion, which A.D. resisted. A.D. said that the water damage is a result of Partners’ water drainage system that changed the natural flow of water and that they have failed to maintain the system. The district court cited the “general rule” that the dominant estate is entitled to drain surface water in a natural water course of the servient owner’s land, and if damage results the servient landowner is without remedy, unless there is a substantial increase in drainage that results in actual damage. Citing Oak Leaf Country Club v. Wilson, the court also observed, “A corollary of the rule is an overriding requirement that one must exercise ordinary care in the use of his property so as to not injure the rights of neighboring landowners.”

The court found the essential issue in this case to be whether Partners is discharging water in an unnatural manner, has changed the method of drainage in such a way that it has become liable for damages, or, stated another way, whether it is exercising ordinary care in the use of its property so as not to injure the rights of neighboring landowners.

It concluded there were questions of fact as to whether or not “Partners has violated a duty to use ordinary care in the maintenance of [its] property, and whether or not a private nuisance has been established.” The district court therefore denied the motion for summary judgment.

Both sides testified that they attempted to address the problem. A.D. built a retaining pond to accommodate the water and Partners asserted they would add piping, but were waiting for payment from the 2009 suit. A variety of engineers testified that the structure was not functioning to its’ maximum capacity. The court concluded A.D.’s petition had sufficient facts to plead an alternative claim of negligence. The court decided that Partners had a duty to be aware of dangerous property conditions (the degraded drainage system) and failed to fix the problem given a reasonable amount of time.

The trial court decided that A.D. suffered $92,800 in damages, but that it had purchased the property knowing there was a problem with the drainage system and had no plans to remedy the situation. The court decided that A.D. was 65%, and Partners 35%, at fault for the property damage. Under Iowa’s Comparative Fault Act Partners argued that A.D. therefore could not recover damages; however, the court found it could not conclude that something other than Partners’ failure to abate the drainage system was the only cause of damage to A.D.’s property. The court also ruled that the easement a dominant estate has on a servient estate cannot provide a defense to a negligence claim.

The court enjoined Partners from continuing to allow its drainage system to function without repair and order it to take whatever action is necessary to ensure that its drainage system is properly functioning at its own cost. The court ordered Partners to allow A.D.  access to Partners’ property, if required, to tie into a properly functioning drainage system, which will allow storm water to safely traverse A.D.’s property.

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Activities of landowner, not intent, determine whether “land disturbing activity” has taken place

by Rachel Greifenkamp

Town of Raymond v. Mary Jane Vogt and Raymond R. Vogt

(Wisconsin Court of Appeals, January 22, 2014)

The Town of Raymond, WI has an ordinance that prohibits landowners from engaging in land-disturbing construction activities that cause runoff into state waters without first obtaining a permit. Raymond and Mary Jane Vogt testified that they removed weeds and thistles, moved land in order to vertically install a large steel plate five to eight feet from the neighbor’s property line, and filled a ten-by-twenty-foot area of the ditch with gravel and multiple truckloads of dirt to enhance a drainage ditch between their property and their neighbors property.  All of this work was performed without a permit. A trial court determined this to be “land-disturbing activity” within the meaning of the term found in the Town ordinance, The trial court ordered the Vogts to allow Town agents to inspect their property and develop a remedial plan, which the court then approved and ordered the plan to be carried out at the expense of the Vogts. In all, the trial court awarded the Town $16,676 for expenditures and $45,131.50 for daily forfeitures and costs, totally nearly $52,000 to be paid by the Vogts.  The Vogts appealed.

The Town ordinance defined “land disturbing activity” as “any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or nonvegetative soil cover, that may result in runoff and lead to an increase in soil erosion and movement of sediment into waters of the state.”  At the trial court hearing, the town of Raymond’s engineer testified that the changes made by the Vogts restricted water flow and led to an increase in water on their neighbors property and that it reduced the amount of water flowing from the Vogts’ property into the Root River (a state waterway). The Vogts countered by saying that the activities were performed to clean and restore the existing drainage ditch, and were intended to reduce erosion. The trial court concluded – and the Court of Appeals affirmed however – that the activities of a party are what determines whether a permit is necessary to proceed. The trial court found that the Vogts performed clearing, excavating, filling, and grading on the property that changed the topography by more than a foot, and that the runoff from the Vogts’ property drained into the Root River.  The Court of Appeals concluded that the evidence sufficiently proved that the Vogts’ work constituted non-exempt land-disturbing construction activities. The holding in favor of the Town of Raymond was held by the Court of Appeals.

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Surface water permit holders not entitled to a predeprivation hearing when DNR issues notices to cease witdrawals

Gary Taylor

by Gary Taylor

Keating v. Nebraska Public Power District, Nebraska Department of Resources, et al.
(Federal 8th Circuit Court of Appeals, November 8, 2011)

Due to a decrease in water levels in the Niobrara watershed, in 2006 the Nebraska Public Power District (NPPD) requested that the Nebraska Department of Natural Resources (DNR) issue Closing Notices (notices to cease water withdrawals) to hundreds of farmers and ranchers who held surface water appropriation permits that were junior to those permits held by NPPD. In the summer of 2007, the DNR issued such Closing Notices to junior permit holders without providing them notice or a hearing prior to the issuance of the Closing Notices. The appellants filed suit, arguing that the Closing Notices effected a property deprivation, and accordingly they were entitled to the procedural due process protections of a predeprivation hearing. The district court dismissed the suit, holding that the claim was not ripe and that appellants had not exhausted administrative remedies prior to filing the complaint.  After an initial decision, an appeal to the 8th circuit and a remand, district court determined that although the appellants held a property right that entitled them to use the surface waters of the Niobrara River, that right was qualified and subject to the DNR’s administration of the appropriation system. Also, the district court held that the DNR’s administration of the system did not cause the appellants to suffer a deprivation of their property rights. Accordingly, the district court granted summary judgment in favor of the appellees.

In this case the appellants argue they are entitled to a predeprivation hearing prior to the DNR conducting its administration of the Niobrara Watershed and issuing Closing Notices. Specifically, appellants seek a predeprivation hearing to challenge the validity of the NPPD’s permits on the grounds that the NPPD was not beneficially using its appropriation to produce power and to challenge the DNR’s determination of water scarcity.  In addressing the right to a hearing – due process question – a court must first determine whether state action has deprived an individual of a protected property interest, and only after finding such a deprivation does the court consider whether available procedures for challenging the deprivation satisfy the requirements of due process. The US Supreme Court “usually has held that the Constitution requires some kind of hearing before the State deprives a person of liberty or property.”  The 8th Circuit noted that the parties agreed that a water permit entitling the holder to use surface water within the capacity limits of the Niobrara Watershed represents a property right under Nebraska law. That right, however, is not one of ownership of the surface water prior to capture. Instead, the holder of a permit acquires the rights granted by the permit, and is subject to constraints articulated by the permit. Here, the appellants’ permits allows them to use specific amounts of surface water so long as there is sufficient capacity, subject to the rights of senior appropriators and subject to regulation by the State through the DNR.  Appellants argued that when the DNR administers the Niobrara in a manner that requires permit holders to stop taking water, the state should conduct a hearing to give permit holders an opportunity to challenge the DNR’s determination that there is a scarcity.  The 8th Circuit rejected this argument. On the face of the permits, permit holders are warned that there are periods of time when water supply on the Niobrara River is insufficient to meet the demands of all appropriators and that permit holders are “hereby given notice that [they] may be denied the use of water during times of scarcity.” Thus, when the DNR determines that the watershed no longer has the capacity to supply all permit holders, appellants no longer have a legitimate claim of entitlement to use the surface water and thus do not suffer a deprivation of a property right.  The 8th Circuit affirmed the determination of the district court that appellants did not suffer a deprivation of their property rights by the DNR’s actions.

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Wisconsin DNR required to consider whether municipal well would harm waters of the state

Gary Taylor

by Gary Taylor

Lake Beulah Management District v. Wisconsin Department of Natural Resources
(Wisconsin Supreme Court, July 6, 2011)

In 2003 the Village of East Troy, Wisconsin applied to the Department of Natural Resources (DNR) for a permit to operate a high-capacity well (1.4 million gpd) for the village’s water supply.  The DNR issued a letter granting the permit in September 2003.  In deciding to grant the permit the DNR concluded that the well would not “have an adverse effect on any nearby wells owned by another water utility,”  and that the well “would avoid any serious disruption of groundwater discharge to Lake Beulah.”  The well was to be located 1,200 feet from Lake Beulah, and the Lake Beulah Management District (LBMD) brought a court challenge to the determination.  Because of the delays caused by the challenge the village asked for an extension of the 2003 permit in 2005.  The day after the village’s request LBMD filed in the original court challenge an affidavit of a Wisconsin-licensed geologist, who stated that based on his analysis of the village’s consultants’ pumping tests and reports and his own pumping tests and studies, “the existing data can only support the conclusion that pumping of proposed well would cause adverse environmental impacts to the wetland and navigable surface waters of Lake Beulah.” LBMD provided this affidavit to the DNR’s attorney.  The DNR chose to grant the permit “extension” in a letter dated September 6, 2005, agreeing with the village’s assertion that the “physical circumstances” of the well had not changed and that the issuance of a permit was appropriate under the standards in Wis. Stat. § 281.34 as modified in 2003.

The issue in the case being briefed here was whether the DNR has the authority and duty to consider the environmental impact of a proposed high capacity well if presented with sufficient scientific evidence suggesting potential harm to waters of the state.  The court of appeals concluded that the DNR did have a general duty to protect the waters of the state, even though the statutory scheme does not require formal environmental review or findings.  The court of appeals further concluded that the DNR was presented with sufficient scientific evidence in the form of the geologist’s affidavit and remanded to the circuit court to order the DNR to consider the impact of the well on Lake Beulah.

Upon appeal by the village, the Wisconsin Supreme Court affirmed this portion of the court of appeals’ ruling.  It cited relevant provisions of chapter 281 of the Wisconsin Statutes and the “legislatures delegation [to the DNR] of the state’s public trust duties” in support of the conclusion that the DNR had a general duty to protect the state’s waters.  “To comply with this general duty, the DNR must consider the environmental impact of a proposed high capacity well when presented with sufficient concrete, scientific evidence of potential harm to waters of the state.  The DNR should use both its expertise in water resources management and its discretion to determine whether its duty as trustee of public trust resources is implicated by a proposed high capacity well permit application, such that it must consider the environmental impact of the well or in some cases deny a permit application or include conditions in a well permit.”  The Supreme Court further observed that the question of “upon what evidence, and under what circumstances, the DNR’s general duty is implicated by a proposed high capacity well is a highly fact specific matter that depends upon what information is presented to the DNR decision makers by the well owner in the well permit application, and by citizens and other entities regarding that permit application while it is under review by the DNR.”  The Supreme Court concluded, however, that the duty was not necessarily triggered in this case by submission of the affidavit to the DNR’s attorney, and it remanded the case for further proceedings to determine if, and when, individuals with decision-making authority within DNR actually received the affidavit.

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