Water Laws

In determining whether an EIS is needed in response to a request from a regulated party for major modification to its NPDES permit, must the MPCA consider the potential for significant environmental effects of greenhouse gas emissions?

In the Matter of the Denial of a Contested Case Hearing Request & Modification of a Notice of Coverage Under Individual NPDES Feedlot Permit No. MN0067652, No. A19-0207, 2019 WL 5106666 (Minn. Ct. App. 2019) (unpublished)

Daley Farms, in Winona County, sought to expand its dairy operation and applied to the Minnesota Pollution Control Agency (MPCA) for “major modification” to its Natinoal Pollutant Discharge Elimination System (NPDES) feedlot permit. The MPCA determined that an EIS was not needed. However, the MPCA commissioner requested that the Minnesota Environmental Quality Board (EQB) order a generic EIS under Minn. R. 4410.3800, subp. 3 (2017) “to study and address nitrate pollution of groundwater in the geologically sensitive karst region of southeastern Minnesota."

Minnesota Center for Environmental Advocacy (MCEA) challenged MPCA’s decision. First, MCEA argued MPCA failed to consider the effects of the proposed expansion’s greenhouse-gas emissions. Second, MCEA argued MPCA’s denial of an EIS was arbitrary and capricious because the MPCA simultaneously requested a generic EIS to study nitrate pollution in the groundwater in the karst region of southeastern Minnesota.

The Minnesota Court of Appeals held that the MPCA’s determination that an EIS was not needed was arbitrary and capricious because the MPCA failed to consider the “potential for significant environmental effects” of greenhouse gas emissions." The court reversed the NPDES permit modification approval because the determination of whether an EIS is needed must precede a permitting decision, and remanded to the MPCA.

The court found MPCA’s decision to reject MCEA’s objections to the project, based on MPCA’s request of a generic EIS to study nitrate pollution in the groundwater, was supported by substantial evidence and was not arbitrary and capricious. First, the MPCA’s decision to request a generic EIS from the Minnesota Environmental Quality Board under Minn. R. 4410.3800, subp. 3(2017) “to study and address nitrate pollution of groundwater in the geologically sensitive karst region of southeastern Minnesota” was separate from its decision on the need for an EIS for Daley Farms’ project. Second, MPCA’s determination that mitigation would be sufficient was based on substantial evidence. Mitigation required in the permit included compliance with Minn. R. 7020.2225, subp. 1(A), 4(E) (2017), land application of manure. Additionally, Daley Farms committed to using BMPs to reduce the potential for groundwater pollution further.

Did the DNR violate MERA and the public trust doctrine through its permitting and management of high capacity groundwater appropriations within the Prairie du Chien-Jordan aquifer and around White Bear Lake?

White Bear Lake Restoration Ass'n. v. Minnesota Dept. Nat. Res., 928 N.W.2d 351 (Minn. Ct. App. 2019), review granted (July 16, 2019)

The Court of Appeals held that the public trust doctrine applies to navigable waters and to the bed of the lake, and does not apply to groundwater not directly beneath the lake. An expansion of the public trust doctrine to encompass groundwater as “navigable waters” is beyond the authority of the Court of Appeals. The court reversed the district court’s application of the public trust doctrine to groundwater withdrawal remote from the lake and its bed. The Court of Appeals held that the district court erred in determining that Minn. Stat. § 116B.03, subd. 1 applies to claims relating to DNR-issued groundwater-appropriation permits. The plain language of §116B.03 bars permit-related challenges. The conduct at issue, groundwater pumping, is controlled by the DNR through its permitting authority. The plain language requires that appellants’ challenges be brought under Minn. Stat. § 116B.10.

On July 16, 2019, the Minnesota Supreme Court granted the petitions for review of the White Bear Lake Homeowner’s Association, Inc. and the White Bear Lake Restoration Association.

Must MPCA find a violation of eutrophication water quality standards when there is insufficient information to make that determination?

MCEA v. City of Winsted, No. A16-0854, 2017 WL 393897 (Minn. Ct. App. 2017)

Court deferred to MPCA on what information to consider in determining if a permittee has a reasonable potential to contribute to violation of a water quality standard, thus requiring a WQBEL on their NPDES permit. Court deferred to MPCA interpretation of regs that agency need not find a violation of eutrophication water quality standards when there is insufficient information to make determination. Court found substantial evidence to support MPCA use of 75 ug/L background concentration of phosphorous in calculating permit WQBEL. check back for NW.2d reporter, looks like it will be reported later.

Must Wetland Conservation Act and Endangered Species Act permits be obtained before a project meets the “attainable purpose” requirement for granting a condemnation petition?

State of Minnesota v. Zander, A04-496 (Minn. Ct. App. 2014) (unpublished)

The law states that a petition to condemn land for a public purpose may not be granted if the purpose cannot be attained. A landowner argued that therefore, the District Court wrongly granted the petition of the Minnesota Department of Transportation to take his property before MnDOT obtained permits under the Wetland Conservation and Endangered Species Acts. The Court of Appeals found that while the Minnesota Supreme Court, in County of Freeborn v. Bryson, ruled that eminent domain could be enjoined pending a determination of compliance with the Minnesota Environmental Rights Act, the WCA and ESA had not been given the same status. The Court further found that the District Court properly examined the likelihood of a successful WCA or ESA challenge in granting MnDOT’s condemnation petition, and did not have to stay proceedings while the administrative agencies performed that review.

Did the MPCA act in an arbitrary and capricious manner when it issued a permit for expansion of a feedlot?

EIO, Inc. v. Minnesota Pollution Control Agency, 1998 WL 389079 (Minn. Ct. App. 1998) (unpublished)

Pursuant to a dairy feedlot expansion in Wright County, the Minnesota Pollution Control Agency completed an Environmental Assessment Worksheet and, subsequently, determined that an Environmental Impact Statement was not required. EIO, Inc., an entity not further identified, appealed the MPCA determination. The trial court granted summary judgment in favor of the MPCA, and the Court of Appeals affirmed. Reviewing MPCA consideration of groundwater, surface water, odor, land availability and traffic effects, the Court found that the record adequately supported the MPCA determination. Distinguishing the easement case from Trout Unlimited, Inc. v. Minn. Dept. of Agriculture, 528 N.W.2d 903 (Minn. App. 1995), rev. den. (1995), the Court found that any reliance on mitigation measures was sufficiently specific to be considered in the impact assessment.

Is a "slow-no wake" speed limit on the Lower St. Croix River vague on its face or contrary to the public trust doctrine?

St. Croix Waterway Ass'n v. Meyer, 178 F.3d 515 (8th Cir. 1999)

The St. Croix Waterway Association, a group of individuals who regularly operate motorboats on the Lower St. Croix River, challenged identical slow-no wake regulations enacted by the states of Minnesota and Wisconsin. The Association charged that the regulations, defining the speed limit as "the slowest possible speed necessary to maintain steerage" were unconstitutionally vague on their face.

The court found that, even though the regulations do not specify a numerical maximum speed and instead require operators to consider factors such as boat design, water and weather conditions, the regulations not unconstitutionally vague. The court compared the regulations to automobile speed limits stated as what is "reasonable and prudent under the circumstances." The regulations, said the Court, use ordinary words easily understood by people of normal intelligence.

The Association also argued that the regulations violate the public trust doctrine by subjecting the public to arbitrary criminal and quasi-criminal sanctions while traveling on public waters. The court held that the public trust doctrine supports the states' authority to protect and preserve the public waters by regulating navigation.

Did the National Parks Service properly define the term "water resources project" under the Wild and Scenic Rivers Act to include bridge construction?

Sierra Club North Star Chapter v. Pena, 1 F. Supp.2d 971 (D. Minn. 1998)

The Minnesota and Wisconsin Departments of Transportation sought to build a bridge across the St. Croix River, which is part of the National Wild and Scenic Rivers System (WSRS). The Department of Interior (DOI), acting through the National Parks Service (NPS), blocked issuance of U.S. Army Corps of Engineers permits required for construction of the bridge under § 7 of the Wild and Scenic Rivers Act. This statute prohibits the United States government from providing financial aid for the construction of a "water resources project" on a wild and scenic river if it will have a "direct and adverse effect on the values for which such river was established.

The NPS defined the term "water resources project" as "any type of construction which would result in any change in the free-flowing characteristics of a [wild and scenic] river." MNDOT disputed the NPS's designation of the bridge construction project as a "water resources project." MNDOT argued that the NPS had inconsistently applied section 7 to bridge projects in general and to this particular project and that it had failed to adopt and/or publish statements of general policy for the term "water resources project" in the Federal Register as required by the Administrative Procedures Act (APA).

The court determined that Congress had delegated to the DOI the authority to define the term, and hence that under Chevron, the DOI interpretation would be upheld if it was a permissible construction. The court found the NPS interpretation reasonable and permissible considering the Act's purpose of preserving the rivers in their free-flowing condition.

It dismissed MNDOT's argument that this definition had been inconsistently applied to the present project. The court looked to the record, which showed numerous NPS communications from as early as 1988 and throughout the environmental review process expressing concern about possible adverse effects of the project under section 7.

Finally, the court determined that the DOI's failure to publish its interpretation of the term in the Federal Register was not fatal under the Administrative Procedures Act because MNDOT had "actual and timely notice" of the interpretation. The court then found the NPS determination to be supportable on the facts. First, the NPS finding of "adverse impacts" appropriately considered scenic impacts, as the river was designated in part due to its scenic values. Secondly, the determination was not arbitrary and capricious but was based on "detailed, well-reasoned findings."

Does an administrative cease and desist order violate the separation of powers? May the order require affirmative action?

State v. Drum, 1998 WL 170118 (Minn. Ct. App. 1998)(unpublished)

Appellant was convicted of a misdemeanor for violating a cease and desist order issued by a Department of Natural Resources Conservation Officer when he failed to stop draining a pond on his property. He argued that a conservation officer is constitutionally forbidden from issuing a cease and desist clause under the separation of powers clause. The Court cited established State and federal case law in upholding administrative issuance of cease and desist orders. See F.T.C. v. Colgate-Palmolive Co., 380 U.S. 374, 394-95 (1965); S.E.C. v. Sloan, 436 U.S. 103, 110-11 (1978); In re Medcenters Health Care, Inc., 450 N.W.2d 635, 640 (Minn. App. 1990).

The appellant also argued that he was not in violation of the cease and desist order, which required him to cease "activity." He claimed that he did not engage in any "activity" after the order was issued, but instead failed to stop the draining of the wetland. The court cited Minn. Stat. § 103G.2372, subds. 1, 2 (1996), which authorizes a cease and desist order to "stop any illegal activity."

Does the U.S. Secretary of the Interior have jurisdiction to regulate commercial activity on waterways within Voyageurs National Park?

U.S. v. Armstrong, 1999 WL 560644 (8th Cir. 1999)

Appellants, tour boat operators on Rainy Lake, were convicted in federal court of violating a National Park Service regulation prohibiting business operations within Voyageurs National Park (VNP) without an NPS permit. Appellants contended that NPS regulatory authority extended only to the land and not to the waters of VNP.

The Court of Appeals rejected the appellants' arguments, citing United States v. Brown as precedent. 552 F.2d 817, 819 (8th Cir. 1977), cert. denied, 431 U.S. 949 (1977). In Brown, the court ruled that the United States has jurisdiction to enforce regulations controlling activities on waters within the boundaries of VNP, because the state had impliedly ceded regulatory authority over those waters in 1971 when VNP was created. Legislation passed by the Minnesota legislature in 1995 stated that jurisdiction over the waters of VNP had not been ceded to the federal government. See Minn. Stat. ¤ 84B.061. However, concluded the court, once ceded by the State, jurisdiction could not be unilaterally reasserted.

Under authority of Kleppe v. New Mexico, the Court also rejected appellants' argument that the Commerce and Property Clauses of the Constitution did not support the federal statute authorizing the NPS to promulgate and enforce regulations concerning boating and other activities on waters within VNP.

Finally, appellants argued that the regulation of tour boats in VNP violated two treaties with Canada: the Root-Bryce Treaty of 1909, 36 Stat. 2448, and the Webster-Ashburton Treaty of 1842, 8 Stat. 572. These treaties provide that both countries will leave the navigation of the boundary waters free and open for the purposes of commerce, subject to any non-discriminatory laws and regulations of either country. The court found that the regulation requiring a permit was applied equally to members of each country, and therefore was non-discriminatory.

Do "industrial" farms with large numbers of animals that do not go to pasture qualify for agricultural exemption to the Clean Water Act?

Concerned Area Citizens for the Environment v. Southview Farm, 34 F.3d 114 (2nd Cir. 1994)

A large dairy farm in Castile, New York with a total of over 2,200 animals ran an industrial-style operation in which the animals did not go out to pasture. The farm used a series of four acre manure ponds to store liquid cow manure. Each pond had a storage capacity of six to eight million gallons of liquid manure. The liquid manure is piped through a hose to fertilize surrounding farm fields.

A citizen group sued the farm, presenting evidence that the liquid manure sprayed onto the field tended to run off into nearby ditches. These ditches subsequently flowed onto state park property and into the Genesee River. Plaintiffs alleged that the farm was "concentrated animal feeding operation" (CAFO). As such it was a point source for pollution, and the outflow from its fields constituted a violation of the Clean Water Act (CWA).

Southview argued that it was not a CAFO, in that agricultural operations were undertaken on the properties. Southview also argued that because of their mixture with rainwater, the liquid manure was too diffuse to constitute a point source discharge. Finally, Southfield argued that the pollutants were not "collected" by human activity but were "spread out" over the ground instead through the use of the hose.

The 2nd Circuit Court of Appeals rejected all three of these arguments, reversing the trial court judgment as a matter of law and reinstating a jury verdict in favor of the plaintiffs. The court held that all discharges eventually mix with rainwater, so that the question of diffusion was not dispositive. The court also held that the collection of the liquid manure in ponds, and its concentration in the pipes and hoses used to spread it on the fields constituted collection. Finally, the court found that Southview was a concentrated agricultural feed lot, and as such was liable for its discharges as a point source under the Clean Water Act.

What is a responsible government unit required to do when deciding whether an environmental impact statement is necessary?

Iron Rangers Ridge Action v. Iron Range Resources and Rehabilitation Board and St. Louis County, 531 N.W.2d 874 (Minn. Ct. App. 1995)

The St. Louis County Planning Commission issued a draft environmental assessment worksheet (EAW) in connection with the proposed construction of a golf course. Following public hearings, the county determined that an Environmental Impact Statement (EIS) was unnecessary, although they did require four environmental studies before they would issue a conditional use permit. A citizen's group brought suit against the development project sponsor (Iron Range Resources and Rehabilitation Board (or IRRRB)) and St. Louis County. The citizen's group argued that the county's finding that an EIS was unnecessary was in error and that the county used the four environmental studies as a subterfuge to avoid an EIS. The plaintiffs also alleged that the county failed to pursue alternative project sites.

First the court established the standard of review for examining EAW determinations. The court held that judicial review of an RGU's determinations that a project did not have "potential for significant environmental effects" under the Minnesota Environmental Protection Act (MEPA) is limited to whether its determinations were "unreasonable, arbitrary, or capricious." Carl Bolander and Sons v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993). In applying the standard, the court looks to whether the government unit's decision is "based on substantial evidence in the record." Swanson v. City of Bloomington, 421 N.W.2d 307, 313 (Minn. 1988).

In this case, the court ruled that "the comprehensive information in the EAW, the agency and public comments, and the extended public hearings" were sufficient evidence that the county's decision was neither unreasonable, arbitrary, or capricious. Likewise, the court used the same evidence to conclude that the four environmental studies mandated by the county were likewise supported by the "substantial evidence" in the record. Finally, the court decided that the county need not consider alternative sites where the threshold of "significant effects" required to trigger an EIS is not crossed. Minn.Stat. § 116D.04 subd. 6 (1992) (see also State v. Hennepin, 495 N.W.2d 416, 426 (Minn. 1993)).