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

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  They argued that MPCA relied on outdated studies and failed to make the studies it relied on part of the public record.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.

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

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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