Minnesota Supreme Court to determine whether class 1 water quality standards apply to groundwater

The Minnesota Supreme Court will decide whether Minnesota's drinking water quality standards apply to groundwater in its review of In re Reissuance of a NPDES/SDS Permit to United States Steel Corp.

Background: MPCA's NPDES permit to U.S. Steel

On November 30, 2018, the Minnesota Pollution Control Agency (MPCA) reissued a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit to United States Steel Corporation for its Minntac facility located on the Mesabi Iron Range in Mt. Iron, Minnesota.

The permit, issued under authority of the federal Clean Water Act (CWA), sets limits on the discharge of pollutants from an unlined tailings basin, which contains silt- and sand-like remnants from the mining process, into surface waters and groundwater. The tailings basin constitutes a point source under the CWA. Water from the tailings basin seeps into nearby groundwater and, via the groundwater, to hydrologically connected surface waters that are "navigable waters" covered by the CWA. According to the MPCA, the groundwater "may emerge into the surrounding wetlands, lakes or stream channels as baseflow, or may remain in the subsurface within the regional groundwater flow system."

The MPCA set conditions related to groundwater quality in the permit, including requiring U.S. Steel to reduce sulfate levels in groundwater at the Minntac property boundary by December 31, 2025. The MPCA reasoned that, read together, Minnesota Rules Chapters 7050 and 7060 classify groundwater as class 1 waters and that the groundwater at the site is subject to class 1 water quality standards -- the standards that apply to drinking water in Minnesota.

U.S. Steel appealed the permit, challenging the groundwater conditions of the permit and the MPCA’s denial of its request for both a contested-case hearing and a variance from water quality standards.

WaterLegacy, a nonprofit advocacy firm, and the Fond du Lac Band of Lake Superior Chippewa also appealed the permit, arguing that MPCA erroneously interpreted the Clean Water Act, and that the NPDES/SDS permit is not sufficiently protective of surface waters. 

2019 Minnesota Court of Appeals Decision

The Minnesota Court of Appeals heard the arguments of U.S. Steel and Water Legacy and the Fond du Lac Band of Lake Superior Chippewa, and held that the CWA does not apply to discharges conveyed by groundwater to navigable waters. 937 N.W.2d 770 (Minn. Ct. App. 2019).

The court of appeals found the term “discharge of a pollutant” in 33 U.S.C. § 1362(12) to be ambiguous when applied to "discharges from a point source to hydrologically connected groundwater," and deferred to the MPCA’s interpretation that “discharge of a pollutant” to a navigable water does not encompass discharge into groundwater -- regardless of the hydrological connection to downgradient surface water.

The court of appeals further held that "chapters 7050 and 7060 unambiguously do not classify groundwater as class 1 waters and that the MPCA therefore erred by applying class 1 water-quality standards to determine groundwater conditions in the permit."

Minnesota Supreme Court grants petitions for review

On February 26, 2020, the Minnesota Supreme Court granted petitions for further review brought by the Fond du Lac Band, WaterLegacy, and the MPCA.

The petitions for review focus on two issues:

• Whether the court of appeals erred in upholding the MPCA’s position that the CWA does not extend to discharges to groundwater, even if there is a hydrologic connection to surface waters; and

• Whether the court of appeals erred in rejecting the MPCA’s position that class I water quality standards apply to groundwater.

The Minnesota Supreme Court stayed proceedings pending a decision by the U.S. Supreme Court in County of Maui v. Hawai’i Wildlife Fund.

On April 23, 2020, the U.S. Supreme Court decided County of Maui, ruling that the CWA does apply to discharge of a pollutant from a point source to groundwater that ultimately reaches a navigable water, when the discharge is the "functional equivalent" of discharging that pollutant from the point source directly into the navigable water. The determination as to whether permitting requirements apply is to be based on the specific facts.

We wrote an in-depth summary of the County of Maui decision in the May 2020 edition of Water Laws.

Minnesota Supreme Court July 2020 order

The Minnesota Supreme Court issued a ruling in late July 2020, finding, on the basis of the County of Maui decision, that the court of appeals erred in deciding that polluted groundwater is not subject to CWA regulation.

As a procedural matter, the Minnesota Supreme Court rejected MPCA's and U.S. Steel's requests that the case be sent back to the MPCA to apply the "functional equivalent" standard from County of Maui to the discharges from U.S. Steel's Minntac facility. The court will decide on the next step when it issues its decision on whether the class 1 water quality standards apply to groundwater. It will hear arguments on this question later this fall.

Minnesota Supreme Court issues White Bear Lake ruling

The Minnesota Supreme Court found that the White Bear Lake Homeowners Association and the White Bear Lake Restoration Association have a claim under the Minnesota Environmental Rights Act, but declined to extend the public-trust doctrine to find that the Minnesota DNR violated its duty as trustee by issuing groundwater permits.

Background

White Bear Lake, a groundwater-fed lake in Ramsey and Washington Counties, experienced very low water levels in the early 2010s. In response, White Bear Lake Restoration Association (Restoration) sought declaratory and injunctive relief in Ramsey County District Court, arguing that the Department of Natural Resources (DNR), by issuing groundwater appropriation permits to (among others) cities in the White Bear Lakes groundwater-shed, had allowed the lake’s water levels to drop, in violation of the Minnesota Environmental Rights Act, Minnesota Statutes chapter 116 (MERA). White Bear Lake Homeowners Association (Homeowners) intervened, asserting the MERA claim, and that the DNR had violated the common-law public-trust doctrine. Under this doctrine, rooted in ancient Roman law but recognized by modern courts, the state holds certain public resources in trust for the benefit of the people as a whole, and cannot impair that trust responsibility to benefit narrow interests.  

2017 Ramsey County District Court order

The district court agreed with Restoration and Homeowners based on their claims that the DNR violated Minn. Stat. §116B.03 and the public-trust doctrine, and granted an injunction directing that the DNR undertake a number of tasks to re-evaluate its groundwater permitting, and forbidding it from issuing further permits pending the directed activity. The DNR appealed, challenging the district court’s application of §116B.03 and the public-trust doctrine, along with other arguments.

2019 Minnesota Court of Appeals decision

The Minnesota Court of Appeals reversed the district court on both grounds. It found that Restoration and Homeowners had brought their MERA claim under the wrong statute - §116B.03 (which creates a facially broad right for citizen suits to prevent or stop environmental degradation) rather than §116B.10 (which provides for challenges to an environmental standard … or permit). And it rejected Homeowners' public trust claim, noting that the application of the public-trust doctrine has been limited to public ownership of navigable waters and has “never been extended to groundwater not directly beneath the lake."

Restoration and Homeowners then appealed this decision to the Minnesota Supreme Court. 

2020 Minnesota Supreme Court decision

On July 15, 2020, the Minnesota Supreme Court issued its decision in White Bear Lake Restoration Association ex re. v. Minnesota Department of Natural Resources.

The court reversed the court of appeals on the MERA claim. If ruled that Restoration and Homeowners in fact have stated claims under the citizen-suit section of MERA, §116B.03, subdivision 1, which provides that “[a]ny person … may maintain a civil action in the district court for declaratory or equitable relief in the name of the state of Minnesota against any person, for the protection of … natural resources located within the state, whether publicly or privately owned, from pollution, impairment, or destruction.”

MERA  defines “pollution, impairment, or destruction” as “any conduct by any person which violates, or is likely to violate, any environmental quality standard, limitation, rule, order, license, stipulation agreement, or permit” or “any conduct which materially adversely affects or is likely to materially adversely affect the environment." (Emphasis added.)

The court found that Restoration and Homeowners sufficiently alleged with specificity several types of DNR conduct sufficient to make it subject to a claim under §116B.03, notwithstanding that a MERA claim also might have been brought under §116B.10.

The court affirmed the court of appeals' ruling that Homeowners failed to state a claim under the public-trust doctrine, but on different reasoning. The court ruled that because groundwater allocation is exhaustively managed by statute, there is no need to invoke the common-law doctrine to resolve the present issue.

The Minnesota Supreme Court remanded the case to the court of appeals to address the remaining issues raised in the appeal.

EPA Finalizes Revised CWA 401 Regulation

The EPA has narrowed state and tribal authority to evaluate and impose conditions on proposed projects under CWA Section 401.

The EPA's final Clean Water Act Section 401 Certification Rule, published in the Federal Register June 1, 2020, limits what factors state and tribal governments may consider, and what limitations they may impose, on a proposed project that requires a federal license or permit, in order to ensure that the project meets state or tribal water quality standards. The rule also gives the federal agency closer control over the timing of state and tribal review. The rule becomes effective 60 days after its June 1 publication date.

Section 401 requires an applicant for a federal license or permit that may result in a discharge to navigable waters to obtain a water quality certification from the affected state or tribe before a federal agency may issue the license or permit. If a state or tribe determines that a project does not comply with the relevant standards, the state or tribe may impose further conditions on or deny certification for a project - even if the project meets other requirements for the federal license or permit.

If a state or tribe fails to act on an applicant's request for certification within a reasonable period of time of the request, the state or tribe waives its certification authority and no longer may certify, impose conditions on, or deny certification for the project.

Changes to Section 401

The new rules in revised CWA Section 401 (40 CFR Part 121) include the following changes from the previous rule:

• The federal permitting agency for a proposed project must establish the "reasonable period of time" within which the state or tribe must act on the certification request, or risk waiving its certification authority. The federal agency may extend this period once it is set, but may not extend it beyond one year from the applicant's certification request.

• A state or tribe has up to one year, or less depending on the period set by the relevant federal permitting agency, on receiving a 401 certification request to grant, grant with conditions, or deny certification for the project. A state or tribe may no longer request that an applicant withdraw and resubmit a certification request.

• Revised Section 401 defines a "certification request" and lists the information that, when submitted, triggers the state's or tribe's period for review of the request.

• An applicant's certification request need not be complete or substantially complete to trigger the reasonable review period timeline, and need not conform with other state or tribal criteria for triggering a Section 401 certification review.

• A state or tribe may only review licensed or permitted activities that may result in a point source discharge into a Water of the United States. States and tribes may only impose conditions that are directly related to water quality requirements, specifically, "those provisions of State or Tribal law that contain requirements for point source discharges into water of the United States." States and tribes no longer have authority to impose conditions on or deny projects when the condition or denial relates to water quality impacts from the overall project. The condition or denial must relate to the water quality impacts from a specific point source discharge. States and tribes must include a statement with any conditions imposed on a Section 401 certification explaining the necessity of the condition for achieving compliance with requirements for discharges into Waters of the United States.

• A state or tribal Section 401 certification must be reviewed by the federal permitting agency to confirm that the state and tribe complied with Section 401 procedural requirements.

CWA permitting expanded to include groundwater in specific cases

Some discharges of pollutants from point sources to groundwater will require an NPDES permit.

On April 23, 2020, the U.S. Supreme Court held in a 6-3 decision that a discharge of a pollutant from a point source to groundwater that ultimately reaches navigable waters may fall under the permit requirements of the Clean Water Act.

Under the court's decision, the NPDES requirements apply when the discharge of a pollutant from a point source into groundwater that reaches a navigable water is the "functional equivalent" of discharging that pollutant from a point source directly into navigable waters.

An NPDES permit is required for the addition of a pollutant from any point source into navigable waters. 33 U.S.C. §§ 1311(a), 1362(12)(A), 1342.

County of Maui

The court's decision addressed a wastewater reclamation facility operated by the County of Maui, in the State of Hawaii, that pumps partially treated wastewater into underground wells. The partially treated wastewater travels a half mile through groundwater to the Pacific Ocean.

In determining that the County of Maui's wastewater facility discharge constitutes a discharge for which an NPDES permit is required, the court specified examples of discharges that would and would not trigger the permitting requirements. A pollutant discharged from a pipe located a few feet from a navigable water that travels a short distance through groundwater to navigable waters would be subject to NPDES permitting requirements. On the other hand, a pollutant discharged from a pipe ending many miles from navigable waters that travels through groundwater for "many years" before reaching the navigable water likely would not require an NPDES permit.

In addition to the factors of time and distance, the court enumerated other aspects of point source pollutant travel through groundwater that are relevant in determining whether the ultimate discharge to navigable waters is subject to the CWA.

These include:

• the type of material the pollutant travels through;

• whether, and how much, the pollutant is diluted or changed by travel;

• how much of the pollutant reaches and enters the navigable water, compared to the amount of the pollutant that leaves the point source;

• where and through what means the pollutant enters a navigable water; and

• what is retained of the pollutant's identity at the time it reaches the navigable water.

The court further stated that the CWA language underlying the NPDES permitting requirements and future EPA administrative guidance are among the tools that regulated parties may rely on to determine whether a discharge constitutes the "functional equivalent of a direct discharge."

The full decision, Maui v. Hawaii Wildlife Fund et. al., case 18-260, is available here.

Minnesota Targets Nitrates

Minnesota will regulate commercial nitrogen fertilizer beginning in 2020, when the Minnesota Groundwater Protection Rule goes into effect. 

Graphic courtesy of MPCA

The rule, based on the Minnesota Nitrogen Fertilizer Management Plan that originated in 1990, applies to two categories of water resources—vulnerable groundwater areas and Drinking Water Supply Management Areas (DWSMAs) (Minn. R. Ch. 1573).

The rule restricts fall application of nitrogen in the areas of the state where vulnerable groundwater areas are located, and requires best management practices and alternative management practices in DWSMAs where nitrogen concentrations are above levels specified in the rule. 

Larry Gunderson is the acting section manager of the Fertilizer Non-Point Section at the Minnesota Department of Agriculture (MDA) which will implement the rule. He explains: “There are two parts to the rule, the first affecting the application of nitrogen fertilizer in the fall and on frozen soils in vulnerable groundwater areas. This goes into effect September 1, 2020. The second part of the rule responds to DWSMAs with high nitrate.”

Graphic courtesy of MPCA

Limited fall and frozen soil application in vulnerable groundwater areas

The rule limits nitrogen fertilizer application in vulnerable groundwater areas – defined based on soil type (coarse textured soils) or geological features (shallow bedrock or karst geology) – or where a municipal public water supply well is already threatened with nitrate-nitrogen contamination. (Minn. R. 1573.0010, subp. 23; Minn. R. 1573.0030, subp. 1(A)).

Where vulnerable groundwater areas constitute 50 percent or more of a quarter section or government lot, farmers are prohibited from applying nitrogen fertilizer in the fall (after August 31) or when the soil is frozen (to a depth that does not allow placement and incorporation of nitrogen fertilizer at least three inches below the soil surface). (Minn. R. 1573, subp. 1(A)(2)). 

Broader implications of the rule

RRWMB Executive Director Robert Sip on State Hwy 9 north of Beltrami, MN, spring 2019

Robert Sip, Executive Director of the Red River Watershed Management Board (RRWMB), comments, “In the Red River Basin, the rule does not appear to have much immediate effect unless you farm in the beach ridge area of Glacial Lake Agassiz.”

“This area of the basin can have coarse-textured soils compared to the heavier soils to the west and outside the beach ridges. The soil type and depth of clay in most of the basin makes it less likely that nitrogen will leach into groundwater," adds Sip.

"Farmers in the basin are readily using precision agriculture technologies and best management practices to reduce or eliminate potential groundwater issues.”

“Farmers in the basin are readily using precision agriculture technologies and best management practices to reduce or eliminate potential groundwater issues.”

— Robert Sip, RRWMB

BdSWD Administrator Jamie Beyer

Jamie Beyer, administrator of the Bois de Sioux Watershed District (BdSWD), echoes the positive implications of farming best management practices for water resources. 

“Over the past 18 years, agriculture has continued to evolve and improve, and technology continues to be adopted by farmers as it develops,” says Beyer. 

“At great expense to their own operations, Minnesota’s farmers can make fertilizer decisions based on regular soil sampling results, apply fertilizers using custom rates that vary within fields, and deliver fertilizer in smaller, just-in-time doses to match what the plants need. But, due to the lag time between what happens at the surface and the corresponding impact on groundwater, these improvements may not be fully realized for 20 years.”

“Over the past 18 years, agriculture has continued to evolve and improve . . . but, due to the lag time between what happens at the surface and the corresponding impact on groundwater, these improvements may not be fully realized for 20 years.”

— Jamie Beyer, BdSWD

Joe Magner, University of Minnesota research professor in the Department of Bioproducts and Biosystems Engineering, agrees that farming technology is constantly changing and improving, and offers a different angle on the effects of the rule.

“From my perspective, the rule has gotten crop consultants and local cooperatives to think about the future in terms of their business model and the products they are selling,” comments Magner. 

“The rule is causing them to think about the services they are providing because they can’t keep pushing nitrogen product out the door. That model can’t work anymore from a local business perspective. Cooperatives are changing to rely more on the services that they sell rather than the products that they sell. Strategic application and the precision of agricultural application is in part driving the change, and the rule has created motivation for industry practice shift.”

Graphic courtesy of MPCA

Voluntary BMPs sought for DWSMAs

Gunderson explains that, after a few years, the rule will limit fall and frozen soil application of nitrogen fertilizer on DWSMA land.

“There are four mitigation levels used to determine voluntary and regulatory actions, two voluntary levels and two regulatory levels,” says Gunderson. “All areas will begin at a voluntary level and move to regulation only if the best management practices are not adopted or if nitrate contamination in the groundwater increases. Farmers in DWSMAs have three growing seasons or the lag time it takes for water to reach an aquifer system – the longer of the two – during which to voluntarily adopt best management practices.”

The rule states that nitrogen application will not be permitted in the fall or on frozen soil where nitrate level has measured or exceeded 5.4 micrograms per liter at any time during the previous 10 years. (Minn. R. 1573.0030, subp. 1(A)(1) and subp. 3(b).)

Graphic courtesy of MDA

MDA must issue a "water resource protection requirements order" to farmers in a DWSMA with nitrate-nitrogen concentrations of 8.0 mg/L or higher at any time during the previous 10 years. (Minn. R. 1573.0040, subps. 8-9). A water resource protection requirements order would apply to some or all lands in mitigation level 3 DWSMAs (where nitrate-nitrogen concentration has been measured at 8.0 mg/L or higher) and mitigation level 4 DWSMAs (where concentration has measured at 9.0 mg/L or higher).

The rule states that if a groundwater monitoring network is installed or residual soil nitrate testing is conducted in the DWSMA, the order applies to the entire DWSMA. (Minn. R. 1573.0050, subp. 1). The MDA may exclude some areas of a DWSMA from the requirements of the order by determining that an “area is not contributing significantly to the contamination of the well.” (Minn. R. 1573.0050). 

An MDA order would require “responsible parties” within a DWSMA to maintain records on nitrogen fertilizer use and comply with fall application and frozen soil application prohibitions. (Minn. R. 1573.0070). The MDA may include other requirements, found at Minn. R. 1573.0070, subps. 1-2, in the order, including that farmers use nitrogen fertilizer best management practices and alternative management tools.

Under specific conditions, including extreme adverse weather, crop failure, or agronomical or technical unsuitability of a required practice (due to soil type, typography, or crop type), landowners are given relief from a water resource protection requirements order. (Minn. R. 1573.0070, subp. 3.)

“Farmers in DWSMAs have three growing seasons or the lag time it takes for water to reach an aquifer system – the longer of the two – during which to voluntarily adopt best management practices.”

— Larry Gunderson, MDA

The MDA website lists alternative management tools that landowners may substitute in place of a nitrogen fertilizer best management practice required by a water resource protection requirements order. Landowners subject to an order may submit to the MDA alternative protection suggestions. (Minn. R. 1573.0090.) The website also hosts an interactive map displaying current DWSMAs and vulnerable groundwater areas.

“The MDA will form a local advisory team with farmers, agronomists and other community members. This team will be involved in reviewing, considering and advising the MDA on appropriate practices or requirements to reduce nitrate in the DWSMA,” says Gunderson. “The MDA will evaluate best management practices implemented and water quality outcomes, and consider whether regulations are needed. The DWSMA can move to a regulatory level if the BMPs are not adopted or if the nitrate level in the groundwater increases.”

Tracing surface-groundwater connections

Parties throughout the state, including watershed districts, were engaged in the rulemaking process.

“MDA heard from members of the public throughout the state about the length of time it will take to see changes in water quality,” notes Gunderson. “This is because soils and geology around the state are pretty complicated. If every well was built the same, the same pumping rate existed across the state, and aquifers consisted of the same geology across the state, it would be easier to understand and provide better time estimates and greater certainty.”

Graphic courtesy of MPCA

BdSWD Administrator Jamie Beyer notes that it will take time to understand what results to expect, and to see results. “There is a real question about cause and effect in the rule, and the amount of time it is going to take to see changes in groundwater resources as a result,” says Beyer.

“It is an open question right now. It will be important to let this rule take root as the state develops more understanding in the area of groundwater systems," comments Beyer. "As a farmer I am equally concerned about not seeing any measurable benefits as a result of the rule from a regulation standpoint. When policy makers don’t see the outcome they are expecting, that can result in more restrictions on producers.” 

“Hydrologic transport time through an aquifer system is kind of an unknown; it could be years,
it could be decades.”

— Joe Magner, University of Minnesota

Ongoing research

Researchers are working to establish more certainty around when and where to expect groundwater improvements when practices change on the surface.

Joe Magner, Department of Bioproducts and Biosystems Engineering, UMN

“University of Minnesota researchers are looking at locations in Southeast Minnesota and modelling flow paths to determine where water originates from on the surface in order to track the effects of changes in practices on the surface and understand what the timeline is for seeing changes or improvements in water quality,” says Magner.

“Hydrologic transport time through an aquifer system is kind of an unknown; it could be years, it could be decades.”

Two Courts say Groundwater is a Point Source

Photo: MN DNR

The question of whether groundwater can be considered a point source under the federal Clean Water Act (CWA) continues to play out in courts across the country. In 2018, two federal courts of appeal ruled that it can. 

Under the CWA, any discharge of a pollutant from a point source into a navigable interstate water is prohibited without a National Pollutant Discharge Elimination System (NPDES) permit. The “conduit theory” proposes that a pollutant from a point source that travels through groundwater (the “conduit”) into a navigable surface water requires an NPDES permit.

The Des Moines Water Works (DMWW) advanced this theory three years ago in a lawsuit against ten drainage districts in three counties in Iowa that manage agricultural drainage systems under state law. The DMWW sued over the discharge of nitrates from field tile lines (not traditionally treated as point sources under NPDES) into the Raccoon River, a navigable water supplying drinking water to the City of Des Moines. This burdened ratepayers with costly water treatment.

The federal district court in Board of Water Works v. Sac County Board of Supervisors (N.D. Iowa 2017) never decided the argument, as it dismissed the lawsuit on technical grounds. However, in this past year, two federal appeals courts did have the occasion to take it up. 

"Fairly Traceable" Pollutants are Point Source Discharges

Photo: MN DNR

2018 saw the first review of this question in a U.S. Circuit Court, in the case Hawai’i Wildlife Fund v. County of Maui (9th Cir. 2018).

The case followed a flood of CWA suits filed by citizens across the country, all suits that relied on the conduit theory. Hawai’i Wildlife Fund brought its citizen suit against the County of Maui and alleged that the County’s disposal of more than 3 million gallons of treated wastewater into wells each day traveled through groundwater and into the Pacific Ocean without an NPDES permit, violating the CWA. 

The federal appeals court found it to be clear that these wells constituted point sources, and that the effluent discharged from the wells was pollution under the CWA.

The issue in Hawai’i Wildlife Fund came down to whether a point source itself must convey pollutants directly into navigable water to be regulated under the CWA. The court decided that, because the flow of the non-NPDES-permitted polluted point source water was “fairly traceable” to the navigable water, a CWA violation had occurred.

In reaching this decision, the court determined that in forbidding the discharge of pollutants to navigable waters, the CWA does not require that the discharge directly flow to navigable waters. The court found that the County of Maui violated the CWA because (1) the County discharged pollutants from a point source, (2) the pollutants were “fairly traceable” from the point source wells to a navigable water, such that the discharge was the functional equivalent of a discharge into a navigable water, and (3) the pollutant levels reaching the navigable water were more than trivial.

EPA's New Rule to Clarify CWA Regulation Limits

Photo: MN DNR

Following this ruling, the EPA requested comments on a new rule (not yet promulgated) to clarify whether pollutant discharges from point sources that reach navigable waters via groundwater or other subsurface flow with a “direct hydrological connection” may be subject to CWA regulation. (The court in the Hawai’i case declined to consider a proposal in a brief submitted by the EPA that a liability rule be adopted requiring a direct hydrological connection between the point source and navigable water.)

"Direct Hydrological Connection" Required

Photo: MN DNR

Recently, another U.S. Court of Appeals followed the same line of reasoning as the Hawai’i case. In Upstate Forever v. Kinder Morgan Energy Partners (4th Cir. 2018), the court found an ongoing violation of the CWA where an underground oil pipeline burst, contaminating nearby groundwater.

The oil company fixed the pipeline, stopping the “continuous” release of oil into groundwater. However, the court determined that the pollution traveling through the groundwater and seeping into nearby surface waters, even months later, was an “ongoing” violation of the CWA, which does not require a “direct” discharge from a point source into a navigable water. This court, unlike in Hawai’i, required a “direct hydrological connection” – a higher standard than “fairly traceable” – between the point source and the navigable water to find a CWA violation.

Whether in agricultural, pipeline, or wastewater treatment settings, the role of groundwater as a conduit will continue to be an important issue under the CWA.

Change in MN Law for Public Capital Project Bidding

Beginning on August 1, the threshold in Minnesota law at which a contract for a public capital project must be awarded via sealed bids or a Best Value procedure increases from $100,000 to $175,000. A capital project estimated to cost less than $175,000 may be contracted for by other methods such as competitive quotes. This threshold increase applies to contracts entered into on or after August 1, 2018.

Final NPDES Construction Stormwater General Permit

Photo: MPCA

The new National Pollutant Discharge Elimination System permit for construction activity becomes effective August 1, 2018.

Applicants who have applied for a permit prior to August 1, 2018, will be covered under the 2013 permit, but will need to complete the project within 18 months of that date or revise the stormwater pollution prevention plan for the project to reflect the requirements of the new permit.

Filtering Water-Borne Sulfates and Heavy Metals through Biochar and Bacteria

2017-18 Smith Partners Sustainability Fellow Gloria Thomas at the University of Minnesota

While legislators, state agencies, and environmental and mining advocates continue to debate the water quality impacts of mining, a team at the University of Minnesota is exploring whether a combination of biochar -- produced from biomass -- and sulfate-reducing bacteria can act as a filter to remove sulfate and toxic metals from mine water.

Gloria Thomas, 2017-18 Smith Partners Sustainability Fellow and PhD candidate in the Water Resources Science Program at the University of Minnesota, has joined a team of researchers at UMN who are in the lab phase of fine-tuning this bio-filtration technique.

Relatively inexpensive and using natural components, the biochar-bacteria remediation technique could be applied to reduce sulfate levels in water to protect wild rice and to meet Minnesota regulatory mandates.

A Bio-Based Remediation System

The two-component remediation system consists of biochar, biomass that is burned at high heat in a low oxygen environment to produce fine charred particles more porous and sorbent than charcoal, and bacteria that do not require oxygen and that take in and process sulfates.

In this low-cost, passive treatment system, biochar adsorbs heavy metals from the water, holding these metals on the surface of the biochar, while sulfate-reducing bacteria use sulfate to fuel their activity and convert the sulfate to sulfide. Sulfide then precipitates with metal ions into a solid that is less reactive in the environment than sulfide itself. Bacteria in waters with high sulfate concentrations naturally convert sulfate to sulfide, but elevated sulfide concentrations can be toxic to many life forms in the environment, including wild rice. The biochar-bacteria system circumvents this problem.

“Sulfide is harmful to animals and plants that breathe oxygen because it disrupts their metabolism,” explained Thomas. “Sulfide can cause irritation and inflammation of the respiratory systems and lead to lung edema if high concentrations are inhaled. Sulfide gas affects wild rice by preventing plants from taking up nutrients through their roots and inhibits the plants’ ability to take in oxygen.  If you walked into a marsh or field and noticed a pungent smell of rotten eggs, it would be from sulfide gas.”

Applications Beyond Sulfates

Thomas notes that field testing of the biochar and sulfate-reducing bacteria research is still to be conducted, and that future research is needed to make sure that the solid precipitate resulting from the heavy metal and sulfide gas combination does not negatively impact environmental systems. “Biochar is used already in bio-filtration systems to treat stormwater to remove nitrate, phosphate, and heavy metals,” noted Thomas. “Heavy metals can be removed by attaching to biochar. One study has shown that microbial pathogens, such as certain strains of E. coli, can be removed with the use of biochar filters.” 

The properties of biochar, such as high surface area and its porous structure, make biochar a good surface for microbial communities to grow on.

Biochar is an effective addition to bioremediation systems that contain various types of bacteria. Research is being done to study how biochar affects microbial community structure and activities, and how these communities can be used for applications such as wastewater treatment or other forms of bioremediation.

Thomas hopes her research will lead to a variety of remedial applications, and she is eager to contribute to broader public understanding of this work. "It would be very exciting if our research can help local communities and watersheds find cost-effective strategies to improve water quality," she noted. "This is perhaps one more tool at our disposal."

The Latest on White Bear Lake

Image: MN Department of Natural Resources

Both chambers of the Minnesota legislature have approved legislation that places a hold on new groundwater appropriation permit requirements imposed by the Minnesota Department of Natural Resources as a result of a Minnesota district court's 2017 order.

The legislation would prohibit the DNR from modifying permits or taking enforcement action based on the 2017 order, and would suspend the required changes for public water suppliers outlined in the order. Governor Dayton has said that he does not oppose the legislation.

The District Court's 2017 Findings and Order

In August 2017, the district court found the DNR to have committed violations of the Public Trust Doctrine and the Minnesota Environmental Rights Act through its permitting and management of high capacity groundwater appropriations around White Bear Lake and within the Prairie du Chien-Jordan aquifer. The district court's decision ordered the DNR to review all existing groundwater appropriation permits within a 5-mile radius of White Bear Lake within one year, and to require the permittees within that radius to submit contingency plans for conversion to surface water sources for their water supply.

The DNR's post-trail motions included arguments stating that the district court's ruling was not supported by the best science available and created precedent that could impose unnecessary burdens on Minnesota citizens.

2018 Proceedings

In January 2018, the DNR sought to stay the district court judgment, amend the judgment, and grant a new trial.

In March 2018, the district court issued an order responding to the DNR's January 2018 motions. The district court denied the request to amend its order and for a new trial. It stated that it applied the Public Trust Doctrine pursuant to existing law in finding that the DNR violated this doctrine by causing continual decline in aquifer levels and causing an adverse impact to lake size, and failing to remedy these impacts. The district court further stated that it did not create new law by applying state law retroactively to find that the DNR violated MERA by impairing White Bear Lake and the Prairie du Chien Aquifer.

The district court further denied the request for a stay of its 2017 order, stating that permit holders were on notice of the case and did not choose to join the litigation, and that the order of the district court provides sufficient detail for the DNR to carry out the permit review and other elements of the order in the face of potential legal challenges brought by permit holders. The district court concluded that the 2017 order would not have significant impacts on activities, including construction, within five miles of White Bear Lake, and that the DNR's history of failing to comply with state requirements would put at further risk the preservation of finite water resources should the district court issue a stay.