Alliance for the Great Lakes v. Department of Natural Resources
161 N.E.3d 293
Ill. App. Ct.2021Background
- Illinois diverts Lake Michigan water under a U.S. Supreme Court consent decree (Wisconsin v. Illinois) and the Level of Lake Michigan Act, administered by the Department of Natural Resources (the Department).
- The Metropolitan Water Reclamation District of Greater Chicago (the District) uses discretionary diversions to dilute combined sewer overflows (CSOs) and maintain dissolved oxygen (DO) levels in the Chicago Area Waterway System (CAWS); its permit reductions were tied to completion of the Tunnel and Reservoir Plan (TARP), which was delayed.
- In 2014 the District petitioned under Rule 310 to modify its permit to maintain 270 cfs (rather than reduce to 101 cfs) until TARP completion, citing delayed TARP, revised IEPA standards, and modeling showing reduced diversion would cause water-quality exceedances.
- Environmental groups (Alliance for the Great Lakes, NRDC, Openlands, Sierra Club) intervened and sought discovery and evidence about additional conservation practices listed in Rule 304; the hearing officer and the Department excluded consideration of those practices in a permit-modification proceeding and limited permit conditions to Rule 307 practices.
- The Department found a substantial change in circumstances, adopted DO as the primary water-quality indicator, used a 95% DO compliance target, ordered modified allocations (270 cfs to 2017; 220 cfs to 2030; 101 cfs thereafter), and required the District to comply with Rule 307 conservation practices.
- Plaintiffs sought administrative and judicial review arguing (1) the Department erred by excluding consideration of Rule 304 conservation measures in a modification proceeding and denying related discovery, and (2) the Department improperly equated partial compliance with the DO standard to maintaining a "reasonably satisfactory sanitary condition." The appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Rule 304 (water-needs analysis / conservation practices) to permit modifications | Rule 304 applies to "each allocation of water," so the Department must consider the listed conservation practices when modifying permits | Rule 304 by its terms applies to applicants/new applications; Rule 310 governs modifications and does not incorporate Rule 304 | Rules ambiguous but agency interpretation reasonable; Rule 304 not required in modifications (affirmed) |
| Scope of Rule 307 and whether Department may require conservation measures beyond its listed items | Dept. must require "all feasible means reasonably available" under §5 of the Act; Dept. should tailor or require additional practices beyond Rule 307 list | Rule 307 prescribes required permit conditions and provides the exclusive list of conservation practices the Department may impose; imposing Rule 307 compliance satisfies §5 | Dept. reasonably interpreted Rule 307 as exclusive for permit conditions; general condition to comply with Rule 307 is sufficient (affirmed) |
| Use of DO standard and 95% partial compliance to satisfy "reasonably satisfactory sanitary condition" requirement of the Act | DO is not a sanitary/public-health proxy; Department must use broader standards and cannot base allocation on partial compliance with a single DO metric | Act does not define "reasonably satisfactory sanitary condition;" Department has long used DO as primary indicator and evidence at hearing supported DO and 95% target | Dept.'s longstanding, reasonable interpretation to use PCB DO standard and 95% compliance was entitled to deference and was upheld (affirmed) |
| Standing of environmental intervenors to seek review | Plaintiffs/members suffer distinct injuries (shoreline use/value, invasive-species risk, CAWS recreation/health) and thus have standing | District argued lack of standing; failed to timely object below; standing is an affirmative defense | Plaintiffs adequately alleged distinct, redressable injuries and had standing; forfeiture of defense below also noted (affirmed) |
Key Cases Cited
- Wisconsin v. Illinois, 388 U.S. 426 (1967) (consent decree limits Illinois diversions and permits diversion to maintain CAWS sanitary condition)
- Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462 (1988) (standing is an affirmative defense and may be forfeited if not timely raised)
- Glisson v. City of Marion, 188 Ill. 2d 211 (1999) (Illinois standing doctrine and injury-in-fact requirements in environmental suits)
- Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76 (1992) (deference to agency interpretation of ambiguous statutory/regulatory provisions)
- Church v. State, 164 Ill. 2d 153 (1995) (agency interpretations given substantial weight when legislature delegates authority)
- Illinois Bell Telephone Co. v. Illinois Commerce Comm’n, 362 Ill. App. 3d 652 (2005) (longstanding agency interpretation merits greater weight)
- Prairie Rivers Network v. Illinois Pollution Control Board, 2016 IL App (1st) 150971 (2016) (distinguishable—permit language must give enforceable guidance to assure compliance under different statutory scheme)
- People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36 (2002) (courts may defer to agency interpretations when legislature has not acted to alter them)