Alliаnce for the Great Lakes v. Department of Natural Resources
No. 1-18-2587
Appellate Court of Illinois, First District, Fifth Division
February 21, 2020
2020 IL App (1st) 182587
Illinois Official Reports
Appellate Court Caption: ALLIANCE FOR THE GREAT LAKES, NATURAL RESOURCES DEFENSE COUNCIL, OPENLANDS, and SIERRA CLUB, Plaintiffs-Appellants, v. THE DEPARTMENT OF NATURAL RESOURCES; WAYNE A. ROSENTHAL, in His Official Capacity as Director of the Department of Natural Resources; and THE METROPOLITAN WATER RECLAMATION DISTRICT OF GREATER CHICAGO, Defendants-Appellees.
District & No.: First District, Fifth Division, No. 1-18-2587
Filed: February 21, 2020
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CH-05445; the Hon. Michael T. Mullen, Judge, presiding.
Judgment: Affirmed.
Counsel on Appeal: Mark N. Templeton and Robert A. Weinstock, of Abrams Environmental Law Clinic, of University of Chicago Law School (Sara Kinter, law student), and Elbert Ettinger, both of Chicago, for appellants.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Christopher M.R. Turner, Assistant Attorney General, of counsel), for appellees Department of Natural Resources and Wayne A. Rosenthal.
Susan T. Morakalis, Ellen M. Avery, and Jorge T. Mihalopoulos, of Chicago, for other appellee.
OPINION
¶ 1 The plaintiffs, the Alliance for the Great Lakes, the Natural Resources Defense Council, Openlands, and the Sierra Club, filed this action for administrative review of the final order of the Departmеnt of Natural Resources (Department), granting a petition by the Metropolitan Water Reclamation District of Greater Chicago (District) to modify its permit to divert water from Lake Michigan under the
¶ 2 The following factual recitation and procedural history is derived from the pleadings and the administrative record.
¶ 3 Illinois diverts water from Lake Michigan pursuant to a consent decree imposed by the United State Supreme Court (Consent Decree). See Wisconsin v. Illinois, 388 U.S. 426 (1967). The Consent Decree limits the amount of water Illinois may divert to 3200 cubic-feet-per-second (cfs). Id. at 427-28. The Consent Decree specifically allows Illinois to divert water into the Chicago Area Waterway System (CAWS), which consists of the Chicago and Calumet rivers, in order “to maintain it in a reasonably satisfactory sanitary condition.” Id. Illinois codified the terms of the Consent Decree in the Act, which designated the Department as the agency responsible for controlling and regulating the apportionment of diverted water
¶ 4 In addition to the Consent Decree and the Act, Illinois is also bound by the
¶ 5 The District operates publicly owned treatment works that assist Illinois in managing the direct diversion of water from Lake Michigan into the CAWS. The CAWS is primarily used for conveying treated municipal wastewater, commercial navigation, and flood control and, as a result, has low in-stream velocities. The CAWS is also subject to the overflow from the combined sewer system that serves the Chicago area. Theses combined sewer overflows (CSOs), which send untreated wastewater into the CAWS, are designed to occur at points along the waterway to avoid flooding streets or residences. When CSOs occur, the influx of untreated wastewater into the CAWS can lead to violations of the water quality standards set by the Illinois Pollution Control Board (PCB) and enforced by the Illinois Environmental Protection Agency (IEPA). Particularly, CSOs have been a main contributor to depressed dissolved oxygen (DO) levels in the CAWS. As such, the District uses diverted water from Lake Michigan to increase the water flow, dilute the polluted water, and help the CAWS meet water quality standards.
¶ 6 Pursuant to the Act, the Department‘s apportionment of diverted water is accomplished through a permit program set forth in the Department‘s administrative rules (Rules) (17 Ill. Adm. Code 3730.301 et seq. (2014)), which were adopted in 1980. See
¶ 7 Relevant here are Rules 304, 307, and 310. Rule 304—entitled “Water Needs Criteria“—requires that the Department determine the “anticipated water needs for each applicant,” and instructs the Department, when making that determination, to consider, inter alia, the “implementation of conservation practices.” 17 Ill. Adm. Code 3730.304 (2014). Subsections (a) and (b) list the conservation practices that the Department must consider for “applicants” of each water user category. Id. § 3730.304(a), (b). Rule 307(a)—entitled “Conservation Practices and Other Permit Conditions“—requires that the Department “condition allocations within a user category upon required conservation practices for each user category as specified in subsections (b) and (c).” Id. § 3730.307(a).
¶ 8 The Department initially granted the District permission to divert water from 1977 to 1980. Following the 1980 adoption of the Rules, the District was granted a 40-year permit to divert water in 1981. The District‘s allotment of diverted water has been closely tied to the completion of its Tunnel and Reservoir Plan (TARP), which began construction in 1975 and, once completed, will consist of 109 miles of storm water tunnels and three reservoirs. Completing TARP is expected to reduce pollution in the CAWS by limiting CSOs and, therefore, reduce the District‘s need for future diversionary water. As a result, the District‘s 1980 permit allocated 320 cfs of water, which was set to reduce to 101 cfs when TARP was completed in 2001. However, TARP was not completed on time, and in 2000, the District requested that the Department modify the permit to delay the reduction in its allocated water until 2014, the new completion date for TARP. The Department granted the District‘s request to modify its permit, increasing its allocation amount to 270 cfs beginning in 2001, which would then reduce to 101 cfs beginning in 2015.
¶ 9 On July 7, 2014, the District filed the instant petition with the Department, pursuant to Rule 310 (id. § 3730.310), seeking to modify its permit to delay the reduction of its allocated water scheduled for 2015. The District provided the following four substantial changes in circumstances that supported modification of its petition: (1) TARP‘s completion date was delayed from 2014 to 2029, (2) the Department received notification from the IEPA that regulatory standards affecting the water quality of the CAWS had been changed, (3) modeling forecasts showed that reducing the District‘s diversion as planned would result in exceeding water quality standards, and (4) previous modeling had significantly underestimated the amount of diversion required to meet water quality standards. The District requested that the Department modify the permit to maintain diversion at 270 cfs until TARP is completed in 2029.
¶ 10 The plaintiffs, the IEPA, and the Illinois Attorney General‘s Office all sought to intervene in the proceedings. On December 12, 2014, the hearing officer granted their motions “[b]ased upon no objection by [the District].” The plaintiffs sought discovery from the District regarding specific conservation practices, and the District objected. Following a prehearing conference, the hearing officer granted the plaintiffs leave to file a motion to compel discovery and ordered them to file a statement of contested issues. The plaintiffs complied and filed a list of 12 contested issues.
¶ 11 After briefing by the parties, the hearing officer determined that 10 of the plaintiffs’ 12 contested issues were not appropriately available to be contested in the proceeding. Relevant here, the hearing officer noted that eight of the plaintiffs’ contested issues “suggest investigating and presumably requiring different actions to reduce the need for the requested diversion increase,” which the plaintiffs argued
¶ 12 The parties submitted position statements, and the plaintiffs also submitted a prehearing memorandum. The District filed written testimony of three witnesses, the plaintiffs filed written testimony of four witnesses, the IEPA and the Department each filed the written testimony of one witness. The four witnesses for the plaintiffs submitted written testimony recommending the study and implementation of the same conservation measures outlined in their contested issues. The District filed a motion to quash the plaintiffs’ prehearing memorandum and to strike the written testimony of the plaintiffs’ witnesses. On September 25, 2015, the hearing officer denied the District‘s motion and admitted the plaintiff‘s prehearing memorandum and the written testimony of their witnesses for the limited purpose of an offer of proof regarding the prior determination that the plaintiffs’ contested issues were not appropriately available to be contested in the proceeding.
¶ 13 The hearing took place on October 6 and 7, 2015. Five witnesses—Dr. Charles Melching (the District), Jennifer Wasik (the District), Edward Saudacher (the District), Daniel Injerd (the Department), and Scott Twait (IEPA)—testified in person, only for the purposes of cross-examination. All five witnesses offered testimony in support of the District‘s petition for modification. The plaintiffs did not present any witnesses for live testimony, but they did cross-examine witnesses.
¶ 14 Dr. Charles Melching testified that, at the District‘s request, he created a computer model demonstrating that a reduction from 270 cfs to 101 cfs, prior to the completion of certain segments of TARP, would result in a nearly 30% drop in system-wide compliance with PCB‘s DO standards for the CAWS. Dr. Melching testified that the DO regulatory standard has historically been used by the Department as the primary indicator for water quality
¶ 15 Injerd, the Department‘s director of water resources, testified that the Department agreed with using the PCB‘s DO standard because it is the “best indiсator of water quality to evaluate the need for and quantity of discretionary diversion water.” He further testified that the Department supported an allocation amount that maintained the CAWS at its current compliance rate as to the DO standard. Injerd stated that the Department supported the District‘s intention to develop guidance for the “optimal use of Discretionary Diversion” and recommended that “this project be included as a condition” in the District‘s modified petition. Injerd testified that the Department supported a diversion amount of 270 cfs from 2015 to 2017, at which time the amount would reduce to 220 cfs until 2030.
¶ 16 Twait, an engineer in the water quality standards section of the IEPA, similarly testified that the IEPA supported increasing the District‘s allocation of water to 270 cfs because that “will maintain the highest frequency of compliance with [DO] standards.” Twait further testified that the IEPA supported using the DO standard for determining “compliance here.”
¶ 17 On September 22, 2016, the Department issued an order granting the District‘s petition to modify its allocation amount. In the written order, the Department first determined that the District had established, pursuant to Rule 310(b) (id. § 3730.310(b)), a substantial change in circumstances that supported a modifiсation of its allocated water amount. Specifically, the Department noted the delay in completing TARP, the forthcoming changes to the PCB‘s DO standard for the CAWS, and Dr. Melching‘s modeling that showed a failure to increase the water amount would result in exceedances of water quality standards. Having so concluded, the Department then addressed the appropriate modified diversion amounts and the permit terms and conditions.
¶ 18 The Department concluded that the PCB‘s DO standard was the best indicator of water quality for the purposes of evaluating the need for, and quantity of, discretionary diversion water. The Department noted that the District, the IEPA, and its own employee supported using the DO regulatory standard to assess water quality in the CAWS and also supported an allocation amount that maintained the current compliance rate at the time of the proceeding, which was 95%. The Department further noted that the plaintiffs made no objections to any of the witnesses’ qualifications or ability to render an opinion on this issue,” nor did the plaintiffs offer any “witness testimony providing the substance of an alternate position.” Accordingly, the Department determined that cоmpliance with DO regulatory standards at a 95% compliance rate was an appropriate standard for determining the water amount necessary “for purposes of this proceeding.”
¶ 19 Lastly, the Department addressed what, if any, conservation practices should be required of the District as a condition of their permit modification. The Department concluded that Rule 307 exclusively governed this issue. The Department noted that, in its first water allocation decision after promulgating the Rules, it stated that Rule 307‘s predecessor was the Department‘s response to section 5‘s mandate that “all feasible means reasonably available *** shall be employed to conserve and manage the water resources of the region.”
¶ 20 In so holding, the Department incorporated the hearing officer‘s interpretation of Rules 304 and 310 and rejected the plaintiffs’ argument that the Act and the Rules require that it conduct a Rule 304 water needs analysis and make a case by case determination of what conservation practices to require as a condition of water allocation. The Department concluded that Rulе 310, which governs modifications to an existing permit, by its plain language, “focuses on the basis for modification,” such as “changes in circumstances and changes in information to that originally submitted in a permittee‘s application for permit,” and on “the appropriate modification as a result of said basis.” As such, Rule 310 does not require the Department to replicate the substantive requirements of the permit application process, such as a Rule 304 water needs analysis.
¶ 21 Ultimately, the Department ordered the District‘s petition modified to reflect the following allocation amounts: 270 cfs through 2017, 220 cfs through 2030, 101 cfs from 2031 to 2035.
¶ 22 The plaintiffs filed a motion to reconsider the Department‘s decision, arguing, inter alia, that the Department failed to address their argument that the Compact imposed distinct legal requirements in addition to the Act and was, therefore, applicable to the permit modification proceeding.
¶ 23 On March 14, 2017, the Department issued a written order, denying the plaintiffs’ motion to reconsider. Relevant here, the Department agreed that section 4.2 of the Compact was relevant to the modification proceeding. However, the Department emphasized that the plain language of section 4.2 “only makes a water conservation program applicable to Illinois‘s Lake Michigan water use” and, thus, there was no requirement to “specifically cite or mention the Compact” during the proceeding. Moreover, the Department concluded that “[t]he Department‘s legally binding regulatory program set forth in [the Rules] clearly meets” the Compact‘s requirement that Illinois create a voluntary or mandatory water conservation program. Accordingly, the Director denied the plaintiffs’ motion to reconsider.
¶ 24 On April 14, 2017, the plaintiffs filed a complaint for administrative review in the circuit court of Cook County, naming the District, the Department, and the Department‘s Director, Wayne A. Rosenthal, as the defendants. The plaintiffs’ four-count complaint alleged the following: (1) the Department violated state and federal law by failing to meet its obligations
¶ 25 On October 5, 2017, the District filed a combined motion to dismiss the plaintiffs’ complaint pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (
¶ 26 On January 8, 2018, the circuit court granted, without prejudice, the District‘s motion to dismiss pursuant to section 2-615 of the Code and denied, as moot, the District‘s motion to dismiss pursuant to section 2-619 of the Code.
¶ 27 On February 5, 2018, the plaintiffs filed an amended complaint, which included a section that addressed their standing. The District and the Department adopted the administrative record as their answer to the plaintiffs’ amended complaint.
¶ 28 The plaintiffs, the District, and the Department each filed cross-motions for summary judgment. The District and the Department both argued that the Department correctly interpreted the Rules when it granted the District‘s petition to modify its permit. The District also renewed their argument that the plaintiffs lacked standing to bring their claims. On November 13, 2018, the circuit court, in an oral pronouncement, denied the plaintiffs’ motion for summary judgment, denied the District‘s motion for summary judgment as to the standing issue, and granted summary judgment in favor of the District and the Department on all four of the plaintiffs’ claims. This appeal followed.
¶ 29 On appeal, the plaintiffs argue that the Department erred in the following two ways: (1) determining that the plaintiffs’ evidence of other conservation practices and their related discovery requests were not applicable to permit modification proceedings and (2) finding that partial compliance with the DO standard constituted a “reasonably satisfactory sanitary condition.”
¶ 30 At the outset, we must first address the District‘s argument that the plaintiffs lack standing to bring this appeal.
¶ 31 To begin, we note that the District did not raise the standing argument before the Department when the plaintiffs sought to intervene. According to the December 12, 2014 order, the hearing officer allowed the plaintiffs to intervene “[b]ased upon no objection by the [District].” In Illinois, lack of standing is an affirmative defense and will be waived if not raised in a timely fashion. Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508 (1988). Therefore, the District has arguably forfeited review of this issue. Forfeiture aside, we nevertheless conclude that the plaintiffs do have standing to bring this action.
¶ 32 Standing requires an “injury in fact,” whether actual or threatened, that is “(1) distinct and palpable; (2) fairly traceable to the defendant‘s actions; and (3) substantially likely to be prevented or
¶ 33 The plaintiffs argue that they have met the standing requirements because either they, or their members, own shorefront property on Lake Michigan and use and enjoy both the CAWS and Lake Michigan. They argue that these interests are harmed by the Department‘s decision to modify the District‘s permit to increase its water allocation in the followings ways: (1) increasing water diversion into the CAWS by an additional 420 billion gallons impacts the water level in Lake Michigan, which diminishes the value of lakefront property and the ability to recreate in Lake Michigan; (2) an increase in water diversions into the CAWS also increases the likelihood of an invasive species transfer, such as Asian Carp; and (3) an ineffective program to maintain water quality in the CAWS impacts the plaintiffs’ members’ ability to recreate in the CAWS. We agree.
¶ 34 Put simply, the District sought to increase its allocation of water from Lake Michigan by approximately 420 billion gallons for the purposes of maintaining water quality in the CAWS. The plaintiffs alleged sufficient facts to establish that such an increase would injure their members by lowering water levels in Lake Michigan, increasing the likelihood of invasive speciеs migrating into Lake Michigan, and failing to address unsanitary conditions in the CAWS. The plaintiffs further alleged that these harms could have been redressed if the Department had required that the District implement the plaintiffs’ specific conservation practices as a condition of their allocation because these practices would reduce CSO events and, therefore, reduce the need for diverted water. Moreover, the Department allowed the plaintiffs to intervene below, without the District objecting, and afforded it the chance to cross-examine witnesses, submit evidence, and make applications for reconsideration. “[T]o allow an intervenor the status of party and to accord it all the panoplies of the adversary process but to deny it the statutory right of appeal requires a great leap of the imagination to satisfy the fundamentals of simple fairness.” Illinois Telephone Ass‘n v. Illinois Commerce Comm‘n, 67 Ill. 2d 15, 23 (1977). Accordingly, we conclude that the plaintiffs have alleged sufficient facts to establish that they have standing to prosecute this appeal.
¶ 35 Turning to the merits, the plaintiffs first contend that the Department erred
¶ 36 In administrative review cases, we review the decision of the administrative agency, not the decision of the circuit court. Exelon Corp. v. Department of Revenue, 234 Ill. 2d 266, 272 (2009). “[T]he applicable standard of review depends upon whether the question presented is one of fact, one of law, or a mixed question of fact and law.” (Internal quotation marks omitted.) Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).
¶ 37 The proper construction of a statute and the regulations thereunder are questions of law reviewed de novo. People ex rel. Madigan v. Illinois Commerce Comm‘n, 231 Ill. 2d 370, 380 (2008). “In construing regulations promulgated by an administrative agency, the same rules used to interpret statutes apply.” LaBelle v. State Employees Retirement System of Illinois, 265 Ill. App. 3d 733, 736 (1994). “One of the primary rules of statutory construction is that the court should first consider the language of the provision at issue, and, where that language is clear, it should be given effect without resorting to other aids for construction.” Id. That said, an agency‘s interpretation of an ambiguous provision in its enabling statute or its regulations is entitled to “substantial weight and deference” as an informed source based upon its “experience and expertise” to ascertain legislative and regulatory intent. Abrahamson v. Illinois Department of Professional Regulation, 153 Ill. 2d 76, 98 (1992).
¶ 38 An administrative agency‘s decision “regarding the conduct of its hearing and the introduction of evidence is properly governed by an abuse of discretion standard.” Wilson v. Department of Professional Regulation, 344 Ill. App. 3d 897, 907 (2003). “An abuse of discretion occurs when no reasonable person would take the view adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792, 801 (2002).
¶ 39 We turn first to the Department‘s interpretation of Rule 304, which is entitled “Water Needs Criteria” and states as follows:
“The Department will determine anticipated water needs for each applicant. The Department will take into consideration in making that determination the population of the area to be served, projected population growth, current and projected per capita consumption within the area, the nature and extent of industrial uses ***, municipal and hydrant uses ***, implementation of conservation practices, and the reduction of non-revenue water as required by this Section.” 17 Ill. Adm. Code 3730.304 (2014).
“improved and more accurate measurement and accounting procedures, improved treatment of all wastewater flows, elimination of untreated combined sewer bypass flows, reasonable use of aeration facilities, implementation of navigational and storm response operations, and procedures to minimize Lake Michigan diversion and implementation of effective programs of leak prevention, detection and correction.” Id. § 3730.304(b).
¶ 40 The plaintiffs contend that Rule 304‘s water needs analysis is applicable to each allocation of water, not just for new diversion applicants. As such, the plaintiffs argue that the Department was required to consider evidence of the specific conservation practices listed in Rule 304(b) relevant to a user such as the District. The Department responds that Rule 304 is only applicable to initial permit applications, not modifications of existing permits. The Department maintains that Rule 310, and the Rules incorporated therein, is the only provision applicable to determining whether to modify an existing user‘s permit, and Rule 310 does not incorporate Rule 304.
¶ 41 By its plain language, Rule 304 requires the Department to determine the water needs of “each applicant,” which supports the Department‘s interpretation that Rule 304 is only applicable to an initial application for diverted water. However, as the plaintiffs correctly point out, Rule 304(a) also refers to “permittee[s]” and “users,” which arguably supports their interpretation that Rule 304 is applicable to all allocations of water. Therefore, the Rules are, at best, ambiguous regarding whether Rule 304 is applicable to modifications of an existing permit. As mentioned, an agency‘s interpretation of an ambiguous provision in its enabling statute or its regulations is entitled to “substantial weight and deference” as an informed source based upon its “experience and expertise” to ascertain legislative and regulatory intent. Abrahamson, 153 Ill. 2d at 98. Consequently, we conclude that the Department did not err in interpreting Rule 304‘s water needs analysis as applying only to initial applications, not to permit modifications.
¶ 42 The plaintiffs further contend that, if Rule 304 is read as being inapplicable to modifying exiting permits, then Rule 304(b), which outlines the conservation practices to be considered when determining the anticipated water needs of diversion water users, such as the District, is superfluous. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994) (“Statutes should be construed, if possible, so that no term is rendered superfluous or meaningless.“). At the center of the plaintiffs’ argument is that, since the District is the only entity that meets the definition of a diversionary user under Rule 303, and its permit predates the adoption of the Rules, then no diversion water user will ever be subject to a water needs analysis under Rule 304(b). The Department responds that the plaintiffs’ argument fails becаuse it assumes that there will never be another entity tasked with managing the diversion of water into the CAWS. We agree with the Department. Although the District is the only entity that currently falls within that category, this does not preclude a future entity from taking on those responsibilities and applying for a new allocation. Therefore, nothing about the Department‘s
¶ 43 The plaintiffs nevertheless contend that Rule 310 also supports its reading of Rule 304. Rule 310, which is titled “Petitions for Modification,” states that
“[p]etitions for modification of an allocation permit may be filed by any entity at any time. *** If the Department finds that any such petition is supported by an adequate statement of reasons, is not plainly devoid of merit or frivolous, and does not deal with a subject on which a hearing has been held within the preceding six months, a hearing shall be held pursuant to Sections 3730.201 through 3730.215.” 17 Ill. Adm. Code 3730.310(a) (2014).
Rule 310(b) then lists four possible bases for modifying an allocation permit, one of which is “[e]vidence of a substantial change in circumstances that results in a change in water needs of the entity.” Id. § 3730.310(b)(1).
¶ 44 The plaintiffs maintain that the reference to “change in water needs” contemplates a full water needs analysis pursuant to Rule 304. The Department responds that nothing in Rule 310 explicitly incorporates the substantive requirements of Rule 304. We agree with the Department. Although Rule 310 does use the phrase “water needs,” the Rule does not incorporate or refer to Rule 304. In its other provisions, Rule 310 explicitly incorporates the procedural and substantive provisions relevant to permit applications that it wishes to duplicate during the permit modification process. Id. § 3730.310(a) (“Petitions for modification must comply with Section 3730.204(c). *** [A] hearing shall be held pursuant to Sections 3730.201 through 3730.215.“). We, therefore, conclude that the Department did not err in determining that Rule 310 did not require a water needs analysis pursuant to Rule 304.
¶ 45 The plaintiffs next contend that the Department‘s interpretation of Rule 304 contravenes the text and purpose of the Act. In support, the plaintiffs refer to the following language contained in section 5 of the Act:
“The Department in determining each allocation of water under this Act shall consider the water requirements of the Northeastern Illinois Metropolitan Region ***; the Department shall be guided by population, business and economic projections and requirements. The Department shall require that all feasible means reasonably available *** shall be employed to conserve and manage the water resources of the region and the use of water therein in accordance with the best modern scientific knowledge and engineering practice.”
615 ILCS 50/5 (West 2014) .
The plaintiffs’ argument rests on the phrases “each allocation of water under this Act” and “all feasible means reasonably available *** to conserve and manage the water resources,” which they contend requires the Department to conduct a full water needs analysis for both new applications and permit modifications. See id. The Department responds that section 5 does not mandate that the Department consider conservation practices when determining “each allocation of water.” Id. Rather, section 5‘s sole reference to conserving water occurs in a separate sentence and directs only that the Department “require” all feasible and reasonably available means to conserve and manage water. Id. The Department, therefore, maintains that nothing in section 5 supports the plaintiffs’ argument that the Act requires the Depаrtment to consider a permittee‘s water conservation practices to
¶ 46 By its plain language, section 5 states what the Department must consider when determining “each allocation of water” and conservation practices are not listed. Section 5‘s mandate that the Department require “all feasible means reasonably available” be “employed to conserve and manage the water resources of the region” is a separate command from a separate sentence. Accordingly, the Department‘s interpretation of Rule 304 does not contravene the text of the Act because section 5 does not require the Department to consider conservation practices when determining “each allocation of water.”
¶ 47 The plaintiffs also contend that the Department‘s interpretation of Rule 304 contravenes the purposes of the Compact, which they argue imposes obligations on Illinois to consider alternative conservation measures when determining a user‘s water needs. Section 4.2 of the Compact rеquires that Illinois “develop and implement a [w]ater conservation and efficiency program, either voluntary or mandatory, within its jurisdiction based on the Party‘s goals and objectives.”
“those measures, methods, technologies or practices for efficient water use and for reduction of water loss and waste or for reducing a Withdrawal, Consumptive Use or Diversion that (i) are environmentally sound, (ii) reflect best practices applicable to the water use sector, (iii) are technically feasible and available, (iv) are economically feasible and cost effective based on an analysis that considers direct and avoided economic and environmental costs and (v) consider the particular facilities and processes involved, taking into account the environmental impact, age of equipment and facilities involved, the processes employed, energy impacts and other appropriate factors.”
Id. (“Section 1.2. Definitions.“)
¶ 48 The plaintiffs cite to the provision in the Compact that commits Illinois to promoting “measures, methods, technologies or practices for *** reducing a Withdrawal, Consumptive Use or Diversion” as support for its contention that the Department‘s interpretation of Rule 304 contravenes the purpose of the Compact.
¶ 49 Put simply, the Compact commits Illinois to promoting general conservation practices, which Illinois does through the Department and its Rules. The Compact does not speak, however, to how Illinois should approach determining allocations for new applicants as opposed to existing permittees. As such, the Department‘s interpretation of Rule 304 does not contravene any provisions of the Compact, and the plaintiffs’ argument is, therefore, unavailing.
¶ 50 The plaintiffs’ final contention in support of their Rule 304 interpretation is that a Department employee made comments
¶ 51 Accordingly, we cоnclude that the Department did not err when it determined that it need not consider the conservation practices listed in Rule 304 during proceedings to modify an existing permit. The language in Rule 304 is, at best, ambiguous, and we therefore defer to the reasonable interpretation of the Department. Abrahamson, 153 Ill. 2d at 98.
¶ 52 We turn next to the Department‘s interpretation of Rule 307. Rule 307—titled “Conservation Practices and Other Permit Conditions“—states that
“[t]he Department shall condition allocations within a user category upon required conservation practices for each user category as specified in subsections (b) and (c). Failure by any permittee to meet the conservation requirements applicable to it within a reasonable period of time will, upon notice, hearing and determination of the failure, constitutes a violation of a Department order.” 17 Ill. Adm. Code 3730.307(a) (2014).
While subsection (b) is not relevant here, subsection (c) states that “[t]he Department shall require evidence of adoptions by the permittee of the following conservation practices as applicable to the particular user” and lists 10 specific conservation practices. Id. § 3730.307(c). The parties agree that one of those 10 conservation practices—Rule 307(c)(10)—is applicable to the District, and it requires “[i]nstallation *** and implementation of programs to reduce to a reasonable minimum, and to accurately account for, water used for navigational and discretionary *** purposes.” Id. § 3730.307(c)(10). The Department interpreted Rule 307 as providing the exclusive list of conservation practices that it could require a permittee to adopt as a condition of their permit. As a result, the Department determined that it need not consider the plaintiffs’ proffered conservation practices and ordered the District to “complete all water conservation practices mandated by [Rule] 307.”
¶ 53 The plaintiffs challenge both the Department‘s determination that Rule 307 provides the exclusive list of conservation practices that the Department can require of a permittee and their determination that a general condition requiring compliance with Rule 307 is sufficient. Specifically, the plaintiffs argue that the phrase “as applicable to the particular user” in Rule 307(c) would be superfluous under the Department‘s interpretation. The Department responds that the phrase “as applicable to the particular user” in subsection (c) is not superfluous but merely acknowledges that not all of the 10 listed conservation practices are applicable to all possible category of users and that only those conservation practices applicable to a particular category of user are required.
¶ 55 Moreover, the Department‘s interpretation does not render any part of Rule 307 superfluous. Subsection (a) states that only the “conservation practices for each user category” аre required, reflecting the fact that not all the conservation practices listed in subsection (b) and (c) are applicable to all categories of users. For instance, five of the listed practices in subsection (c) are applicable only to users who have the ability to pass ordinances, such as Rule 307(c)(5), which requires “[t]he adoption of ordinances requiring the installation of closed system air conditioning in all new construction and in all remodeling.” Id. § 3730.307(c)(5). Thus, the phrase “conservation practices as applicable to the particular user” in subsection (c) is not superfluous, as the plaintiffs suggest, because only some of the 10 practices listed in that subsection will be applicable to a given user. As such, that phrase is included to reflect the fact that only the applicable conservation practices are required.
¶ 56 As they did with Rule 304, the plaintiffs also argue that the Department‘s interpretation of Rule 307 contravenes the Act, citing once more to section 5‘s mandate that “[t]he Department shall require that all feasible means reasonably available *** shall be employed to conserve and manage the water rеsources of the region and the use of water therein in accordance with the best modern scientific knowledge and engineering practice.”
¶ 57 Section 5 does not instruct the Department on how to determine when conservation practices are “feasible” or “reasonably available.” Instead, the General Assembly left that task to the Department, which promulgated Rule 307 in response to section 5‘s mandate. Church v. State, 164 Ill. 2d 153, 161-62 (1995) (“Where the legislature expressly or implicitly delegates to an agency the authority to clarify and define a specific statutory provision, administrative interpretations of such statutory provisions should be given substantial weight unless they are arbitrary, capricious, or manifestly contrary to the statute.“). As mentioned, Rule 307 requires that each permit application contain a condition requiring the permittee to implement specific conservation practices applicable to its user category.
¶ 58 The plaintiffs also cite to Prairie Rivers Network v. Illinois Pollution Control Board, 2016 IL App (1st) 150971, in support of their argument that the Department‘s interpretation of Rule 307 is legally insufficient. In Prairie Rivers, we held that a National Pollution Discharge Elimination System permit did not comply with the
¶ 59 The plaintiffs’ final contention regarding Rule 307 is that the Department‘s interpretation of Rule 307 contravenes the mandates of the Compact. We conclude, as we did for Rule 304, that the plaintiffs’ argument is unavailing. As mentioned, the Compact commits Illinois to promoting “measures, methods, technologies or prаctices for *** reducing a Withdrawal, Consumptive Use or Diversion.”
¶ 60 Having determined that the Department did not err by interpreting that its Rules do not allow for consideration of specific conservation practices during a permit modification proceeding, we also conclude that the Department did not abuse its discretion when it denied the plaintiffs’ efforts to introduce evidence and request discovery relating to specific conservation practices. See Trettenero, 333 Ill. App. 3d at 801; see also Three Angels Broadcasting Network, Inc. v. Department of Revenue, 381 Ill. App. 3d 679, 700-01 (2008) (finding that agency did not abuse its discretion by excluding testimony irrelevant to ultimate disputed issue).
¶ 61 The plaintiffs next argue that the Department erred when it used partial compliance with the PCB‘s DO standard to determine the District‘s modified discretionary diversion allocation.
¶ 62 The plaintiffs first contend that the Department erred in using the DO standard because the Act mandates that the Department apportion water “to maintain [the CAWS] in a reasonably satisfactory sanitary condition.”
¶ 63 The Department is correct that the Act does not define what it means to maintain the CAWS in a “reasonably satisfactory condition” and so left that determination to the Department. As such, we give substantial weight and deference to the Department‘s reasonable interpretation. Church, 164 Ill. 2d at 161-62; People v. Marshall, 242 Ill. 2d 285, 297 (2011) (finding that silence “in the statutory language creates an ambiguity” that requires giving “substantial weight and deference” to the interpretation of the “agency charged with the administration and enforcement of the statute“). Moreover, according to the rеcord, the Department has been using the DO standard for determining the allocation of water to maintain the CAWS in a “reasonably satisfactory sanitary condition” for over 50 years. The Department stated in its initial water allocation order that “DO is affected by or affects most of the parameters used to measure pollution and therefore *** an analysis of [DO] levels [is] an adequate indicator of water quality.” Moreover, the Department stated that “[t]he purpose of the discretionary flows *** is to add oxygen to the waterways to maintain sanitary (aerobic) conditions and to disperse local pollution loadings.” Given that this is the Department‘s longstanding interpretation, it is entitled to “substantial deference.” Illinois Bell, 362 Ill. App. 3d at 657 (“The longer an agency has adhered to an interpretation of the statute, the more weight the interpretation deserves ***.“). We also note that, in the 50 years of applying this regulatory system, the General Assembly has never amended section 5 to suggest that the Department‘s water conservation program was deficient, which suggests that the agency has correctly interpreted the Act‘s mandate. See People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 53-54 (2002) (deferring to agency‘s reasonable interpretation of statute in its regulations where legislature never intervened). Consequently, we conclude that the Department did not err when it used the DO regulatory standard to determine the amount of water the District required to maintain the CAWS in “reasonably satisfactory sanitary condition” under section 5 of the Act.
¶ 64 The plaintiffs also argue that the Rules twice reference water quality “standards,” which they contend supports their argument that the Department was required to consider more than one standard to determine the District‘s allocation amount. The Department responds that nothing in the Rules’ plain language requires that it consider all of the water quality standards when determining an allocation of water. The Department further responds that it did not “refuse” to consider other water quality standards; rather, the plaintiffs failed to either present evidence of an alternative water quality standard for the Department to consider or to challenge the qualifications of those who testified in support of using the PCB DO standard. We agree with the Department.
¶ 65 Rule 303 defines the various categories of water users, with subsection (a)(4) defining one category as “[a]pplicants whose water demands are for the minimum discretionary dilution flows necessary to meet water quality standards in the [CAWS].” 17 Ill. Adm. Code 3730.303(a)(4) (2014). This reference to “water quality standards” does not impose any obligation on the Department. Rather, Rule 303 references water quality “standards” because it is undisputed that the CAWS is subject to multiple regulatory standards related to water quality. However, the plaintiffs point to nothing in the Rules requiring that the Department consider all regulatory standards applicable to the CAWS when determining the District‘s allocation of water. Consequently, the Department did not err when using the DO regulatory standard to determine the District‘s allocation of water.
¶ 66 That said, we note that nothing in the Department‘s order suggests that it did, in fact, refuse to consider other water quality standards when it determined the District‘s water allocation. Instead, the record establishes that all of the relevant testimony during the administrative proceeding was in favor of using the DO regulatory standard and the 95% compliance rate because that was the best indicator of water quality in the CAWS. Dr. Melching testified on behalf of the District that “DO remains the primary indicator of water quality attainment (the sanitary condition) in the CAWS and is the most important beneficiary of discrеtionary diversion.” Twait and Injerd testified in support of both using the DO standard and the 95% compliance rate. The plaintiffs chose not to present evidence to contradict the considerable testimony in support of using the DO standard during the administrative hearing, nor did they offer an alternative standard for determining the discretionary diversion amount. We, therefore, conclude that the Department did not err in interpreting its Rules when it modified the District‘s permit to increase its diverted water amount to a level that would ensure partial compliance with the PCB DO standard.
¶ 67 In sum, we conclude that the Department did not err when it determined the District‘s modified allocation amount based on a 95% compliance rate with the PCB‘s DO standard, as this has been the Department‘s longstanding and reasonable interpretation of its obligations under the Act and the Rules and the only relevant testimony presented during the administrative
¶ 68 For these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 69 Affirmed.