In re Decision to Deny the Petitions for a Contested Case Hearing

In the Matter of the Decision to Deny the Petitions for a Contested Case Hearing and to Submit the Draft Little Rock Creek Dissolved Oxygen, Nitrate, Temperature, and Fish Bioassessment Total Maximum Daily Load Study to the U.S. Environmental Protection Agency for Approval.

A16-0123

STATE OF MINNESOTA IN COURT OF APPEALS

November 28, 2016

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

Affirmed

Reilly, Judge

Minnesota Pollution Control Agency

Matthew C. Berger, Dean M. Zimmerli, Gislason & Hunter LLP, New Ulm, Minnesota (for relators Duane Kroll, et al.)

Lori Swanson, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)

Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson, Judge.

UNPUBLISHED OPINION

REILLY, Judge

Relator-landowners petitioned for certiorari review of the Minnesota Pollution Control Agency's (the MPCA) decision to submit a Total Maximum Daily Load (TMDL) study of the Little Rock Creek watershed area to the Environmental Protection Agency (the EPA) for approval pursuant to the federal Clean Water Act, 33 U.S.C. § 1313(d) (2012) (the CWA). The MPCA asserts that (1) relators lack standing to pursue this certiorari appeal; (2) the MPCA's decision is supported by the record; and (3) relators are not entitled to a contested-case hearing. We determine that relators have standing through a legislative enactment granting standing. However, because relators have not met their burden of demonstrating that the MPCA's decision was unsupported by the record and the MPCA did not err by denying a contested-case hearing, we affirm.

FACTS

I. Parties

Relators are residents, landowners, and farmers near the Little Rock Creek watershed. The MPCA is the state agency charged with enforcing the CWA and has the authority to "administer and enforce all laws relating to the pollution of any of the waters of the state." Minn. Stat. §115.03, subd. 1(a) (2014); Minn. Envtl. Sci. & Econ. Review Bd. v. Minn. Pollution Control Agency, 870 N.W.2d 97, 99 (Minn. App. 2015).

II. Statutory and Regulatory Framework

The stated objective of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a) (2012). To attain this objective, the CWA provides two methods for controlling water pollution: effluent limitations and water quality standards. Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S. Ct. 1046, 1054 (1992). "Effluent limitations" restrict the "quantities, rates, and concentrations of chemical, physical, biological, and other constituents" discharged from point sources into waterways. Id.; 33 U.S.C. § 1362(11) (2012). "Point sources" are "any discernible, confined and discrete conveyance" from which pollutants are or may be discharged including pipes, ditches, tunnels, wells, and other containers. 33 U.S.C.§1362(14) (2014). Unlike point source discharges, "nonpoint-source discharges" are not explicitly defined by the CWA, but have been described as "nothing more than a water pollution problem not involving a discharge from a point source." Defs. of Wildlife v. U.S. Envtl. Prot. Agency, 415 F.3d 1121, 1124 (10th Cir. 2005) (quotation omitted).¹

"Water quality standards set the permissible level of pollution in a specific body of water without direct regulation of the individual sources of pollution." City of Arcadia v. U.S. Envtl. Prot. Agency, 411 F.3d 1103, 1105 (9th Cir. 2005). 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); 33 U.S.C. § 1313(a)-(c). After establishing its 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). This list of substandard waters is known as the "§ 303(d) list" or the "impaired waters" list. Thomas v. Jackson, 581 F.3d 658, 661, 667 (8th Cir. 2009). When creating a § 303(d) list, a state "must assemble and evaluate all existing and readily available water quality-related data and information." Id. at 661 (citing 40 C.F.R. § 130.7(b)(5)).

For each impaired body of water on the § 303(d) list, the state must establish a TMDL for each pollutant the water can sustain without exceeding water quality standards.Id. at 662; 33 U.S.C. § 1313(d)(1)(C) (articulating this requirement). A TMDL is defined 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 (2014) (defining TMDL as "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"); 40 C.F.R. § 130.2(g)-(i) (defining load allocation, wasteload allocation, and TMDL allocation); 33 U.S.C. § 1362(6) (defining "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water"). The state must submit its § 303(d) list and the TMDL to the EPA for approval. 33 U.S.C. § 1313(d)(2). The EPA will either approve or disapprove the state's § 303(d) list within 30 days of submission and, if the EPA disapproves a state's § 303(d) list, it will establish its own list within 30 days of the date of disapproval. 40 C.F.R. § 130.7(d)(2).

III. Factual and Procedural Background

Little Rock Creek is a DNR-designated trout stream in central Minnesota. The land-use in the watershed area consists of approximately 50% crops, 14% woodland, 22% grassand pasture, 13% water and wetlands, and less than 1% residential development. The area is considered "highly altered by human influenced agricultural land uses."

In 2002, the MPCA proposed placing Little Rock Creek on the § 303(d) list for lack of coldwater fish assemblage and "due to a biological impairment as indicated by a poor warmwater fish . . . score" on the Indices of Biological Integrity. The EPA approved this designation in 2003. During the 2006 assessment cycle, Little Rock Creek was removed from the § 303(d) list when an examination revealed that it was designated as a Class 2A coldwater stream and, at that time, the MPCA lacked the tools to properly assess the biology of coldwater streams. In 2010, the MPCA again placed Little Rock Creek on the § 303(d) list because it failed to meet water quality standards for dissolved oxygen and nutrients, and due to the "lack of a coldwater assemblage." The EPA approved the list in 2012.

Following Little Rock Creek's initial placement on the § 303(d) list in 2002, the MPCA began working with the Benton County Soil and Water Conservation District and the Morrison County Soil and Water Conservation District (the SWCDs) on the Little Rock Creek TMDL, using a three-phased approach.

In phase I, the MPCA collected and organized existing data and developed a list of potential stressors on the Little Rock Creek watershed area.

In phase II, the MPCA, in conjunction with the SWCDs, produced a Stressor Identification Report to "identify stressors contributing to [the] lack of cold water fish assemblage in Little Rock Creek." "Stressors" are "[the] specific physical and/or chemical factors that . . . caus[e] [a] biological impairment." The MPCA invited local, state, andfederal agencies, interest groups, organizations, and citizens to participate in the process and provide input into the development of the TMDL. The Stressor Identification Report was published in 2009 and included watershed data, stakeholder meeting comments, technical group meetings and coordination information, causal analysis, and stressor identification documentation, "contain[ing] the complete stressor identification for lack of cold water fish assemblage." The study "used a variety of methods to evaluate the current loading and contributions from the various pollutant sources," along with "the allowable pollutant loading capacity of the impaired reaches." The report concluded that "it is probable that altered flow, temperature, sediment, dissolved oxygen, and nitrates may be causing a biological impairment in Little Rock Creek."

Following the release of the Stressor Identification Report, the MPCA developed a draft TMDL work plan in phase III of the project for "temperature, bedded sentiment, nitrates, and dissolved oxygen, by calculating the total pollutant load with reference to flow as [a] source of impairment." The specific objective of the TMDL was to "determine the type and degree of pollutant source reductions needed to achieve the water quality standards . . . for drinking water . . . [and] temperature" in the water. The TMDL advised that in order to satisfy water quality standards, Little Rock Creek required a 52% reduction in total oxygen demand; a 19-47% reduction in the nitrate load, depending on flow conditions; and a 1% reduction in thermal loading. The TMDL developed an implementation plan to address the water's stressors and their sources. The TMDL stated that the "ideal combination" of implementation strategies and best management practices would include: (1) reducing groundwater use, which could include limiting totalappropriations, improving irrigation...