822 N.W.2d 676
Minn. Ct. App.2012Background
- EPA proposed the 2013 Vessel General Permit (VGP) to regulate ballast-water discharges into navigable waters; MPCA issued a conditional §401 certification with eight conditions.
- Non-profit organizations sued MPCA challenging the §401 certification; Lake Carriers’ Association intervened for the state.
- Minnesota issued its own SDS ballast-water permit (D-2 limits) governing discharges in Minnesota waters, affirmed by this court in SDS Permit Opinion.
- NAS study and EPA analysis concluded numeric water-quality-based effluent limits (WQBELs) were infeasible given current science; narrative standards and BMPs were considered instead.
- EPA’s 2013 VGP would rely on TBELs and non-numeric controls; MPCA determined numeric WQBELs were not required to satisfy §401 and state standards.
- The Minnesota Court of Appeals ultimately affirmed MPCA’s certification, holding no error of law or arbitrary, capricious conduct or lack of substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should MPCA’s §401 certification apply the proper standard of law for future water standards? | Relators: MPCA used invalid ‘reasonable assurance’ standard. | MPCA complied with 401(d), 121.2, and state rule; allowed reasonable assurance. | No error of law; standard properly applied. |
| Did MPCA err by not imposing numeric WQBELs to assure water-quality standards? | Relators: numeric WQBELs required to meet CWA standards. | Numeric WQBELs infeasible; narrative/BMP approach sufficient; agency deference warranted. | Not error; conditions and reasonable assurance suffice. |
Key Cases Cited
- PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994) (watershed permitting and §401 certification role clarified)
- In re Alexandria Lake Area Sanitary Dist, 763 N.W.2d 303 (Minn.2009) (agency expertise deferential review on regulation ambiguity)
- Northwest Environmental Advocates v. United States EPA, 537 F.3d 1006 (9th Cir.2008) (ballast water regulation exemptions and authority)
- City of Arcadia v. United States EPA, 411 F.3d 1103 (9th Cir.2005) (TBELs vs. WQBELs framework under CWA)
- Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York, 451 F.3d 77 (2d Cir.2006) (reasonableness of standards and feasibility of numeric limits)