In the matter of the reissuance of an NPDES/SDS Permit to United States Steel Corporation (U.S. Steel) for its Minntac facility and response to Contested Case Hearing requests filed by U.S. Steel and the Minnesota Center for Environmental Advocacy (“MCEA”) And In the matter of the Application for Variance from Water Quality Standards in the proposed NPDES/SDS permit, MPCA’s Preliminary Determination to Deny the Variance Request and U.S. Steel’s Contested Case Hearing request on the Variance denial.
A18-2094
A18-2095
A18-2159
A18-2163
STATE OF MINNESOTA IN COURT OF APPEALS
Filed December 9, 2019
Cochran, Judge
Reversed and remanded
William P. Hefner, Jeremy P. Greenhouse, The Environmental Law Group, Ltd., Mendota Heights, Minnesota (for relator/respondent United States Steel Corporation)
Paula Goodman Maccabee, Just Change Law Offices, St. Paul, Minnesota (for relator/respondent WaterLegacy)
Sara K. Van Norman, Van Norman Law, PLLC, Minneapolis, Minnesota; and
Sean Copeland, General Counsel, Seth J. Bichler, Staff Attorney, FDL Band Legal Department, Cloquet, Minnesota (for relator/respondent Fond du Lac Band of Lake Superior Chippewa)
Keith Ellison, Attorney General, Stacey W. Person, Assistant Attorney General, St. Paul, Minnesota (for respondent Minnesota Pollution Control Agency)
Carolyn L. McIntosh (pro hac vice), Squire Patton Boggs (US) LLP, Denver, Colorado; and
Kevin Reuther, St. Paul, Minnesota (for amicus curiae Minnesota Center for Environmental Advocacy)
Jeffrey K. Holth, Joseph F. Halloran, Mark A. Anderson, Michael L. Murphy, Barbara Cole, The Jacobson Law Group, St. Paul, Minnesota (for amici curiae the Grand Portage Band of Lake Superior Chippewa, the Bois Forte Band of Chippewa, the Bad River Band of the Lake Superior Tribe of Chippewa, the Mille Lacs Band of Ojibwe, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians, the Lac du Flambeau Band of Lake Superior Chippewa Indians, the Lac Vieux Desert Band of Lake Superior Chippewa Indians, and the 1854 Treaty Authority); and
Jason Kekek Stark, Hayward, Wisconsin (for amicus curiae the Lac Courte Oreilles Band of Lake Superior Chippewa Indians); and
Andrew Adams III, HOGAN ADAMS PLLC, St. Paul, Minnesota (for amicus curiae the Lac du Flambeau Band of Lake Superior Chippewa Indians)
Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and Johnson, Judge.
S Y L L A B U S
- We accord deference to the conclusion of the Minnesota Pollution Control Agency (MPCA) that the federal Clean Water Act (CWA) does not govern discharges of pollutants to groundwater because the relevant statutory language is ambiguous and because (a) the MPCA is responsible for administering and enforcing the CWA, (b) the subject matter of the statute falls within the MPCA’s areas of expertise, and (c) the MPCA’s interpretation is reasonable under the circumstances of this case.
- Under the plain language of the administrative rules comprising the state’s water-quality standards, the standards for class 1 waters provided in
Minn. R. 7050.0221 (2017) do not apply to groundwater because groundwater has not been classified as a class 1 water.
O P I N I O N
COCHRAN, Judge
These consolidated certiorari appeals are taken from a November 30, 2018 decision by respondent Minnesota Pollution Control Agency (MPCA) reissuing a National Pollutant Discharge Elimination System/State Disposal System (NPDES/SDS) permit to United States Steel Corporation (U.S. Steel). The permit governs discharges of pollutants to surface waters and groundwater from a tailings basin at U.S. Steel’s Minntac ore processing operation.
U.S. Steel challenges the groundwater conditions of the permit and the MPCA’s denial of its requests for a permit-related contested-case hearing and a variance from groundwater-quality standards. WaterLegacy and Fond du Lac Band of Lake Superior Chippewa (the band) argue that the MPCA erred in interpreting the federal Clean Water Act (CWA) and that the permit is not sufficiently protective of area surface waters.
We accord deference to the MPCA’s reasonable interpretation of ambiguous provisions of the CWA and conclude that the MPCA did not err in determining that the act does not govern discharges of pollutants to groundwater. But we conclude that the MPCA erred in interpreting the state administrative rules governing water-quality standards by applying the class 1 water-quality standards to groundwater in determining permit conditions. We further conclude that the MPCA’s determination that water-quality-based effluent limits are not required for surface discharges under the CWA is unsupported by
FACTS
The Minntac Tailings Basin
U.S. Steel operates the Minntac ore processing facility in the city of Mountain Iron in St. Louis County. The facility includes an unlined tailings basin, which has been in operation since approximately 1967. The basin was built on the Laurentian Divide and the headwaters of two rivers: the Dark River, which flows to the west, and the Sand River, which flows to the east. The basin covers approximately 8,700 acres (13.6 square miles). The basin is surrounded by a perimeter dike, made of tailings, that runs along the northern, eastern, and western sides of the basin over a length of 9.1 miles. The southern side of the basin is an existing bedrock high, meaning that the natural ground is higher than the tailings basin.
In addition to tailings, the basin receives wastewater and runoff from the Minntac facility. Water from the basin is recycled for use in taconite processing and returned to the basin, which has caused increasing levels of pollutants in the basin. Water from the basin seeps into area groundwater and surface waters, and has caused exceedances of water-quality standards in area surface waters. Of particular concern and at the heart of this appeal are the sulfate levels in area waters.
The first NPDES/SDS permit for the basin was issued by the MPCA in 1987.1 The permit authorized discharges to groundwater, the Dark River, and the Sand River to Little Sandy Lake and Sandy Lake. The permit recognized two of the largest seepage points from the basin as outfall 020 on the west toe of the basin and outfall 030 on the east toe. The locations of these outfalls are now the locations of surface-discharge-monitoring stations SD001 and SD002, respectively. The 1987 permit included some effluent limits—restrictions on the amount of particular pollutants that may be discharged—but required only monitoring and study requirements for sulfate. The 1987 permit expired by its terms on July 31, 1992, but the tailings basin continued operations under the 1987 permit, pursuant to
In August 2000, the MPCA issued a letter of warning to U.S. Steel, expressing its “concern[] about the existing high sulfate concentrations in the drainage from the Minntac tailings basin” and noting that “[s]ulfate has been identified as a pollutant of concern at the tailings basin since at least 1987.” The letter alleged an exceedance, in area surface waters, of the 10 milligram per liter (mg/L) sulfate limit in
Thereafter, the MPCA and U.S. Steel entered into a series of schedules of compliance that variously required U.S. Steel to study the sulfate issue and pursue technologies to reduce the sulfate discharged from the basin. U.S. Steel studied and rejected, with the MPCA’s approval, a number of technologies before deciding to pursue a seep-collection-and-return technology. Pursuant to a 2007 schedule of compliance and a 2010 amendment to the 1987 permit, U.S. Steel constructed a seep-collection-and-return system (SCRS) on the Sand River side of the basin. The SCRS is designed to capture seepage and return it to the basin. The SCRS spans approximately 1¾ miles and consists of catch basins at 13 identified seepage locations, sheet-pile cut-off walls downgradient of each catch basin, underground piping, and two pump stations.
In June 2011, U.S. Steel and the MPCA executed the final schedule of compliance under the 1987 permit. The 2011 schedule of compliance required U.S. Steel to monitor seepage on the Dark River side of the basin; to study and report on the feasibility of a Dark River SCRS; and, if determined feasible, to build a Dark River SCRS.
In February 2013, U.S. Steel and the MPCA executed an amendment to the 2011 schedule of compliance. The 2013 amendment added alleged violations of groundwater-quality standards, citing
The 2018 Permit
The 2018 permit distinguishes between “surface seepage,” which “emerges either from the side of the basin dam, or within the vicinity of the toe of the dam, that creates surface flow or ponded features that would not exist in the absence of the tailings basin,” and “deep seepage,” which “enters the underlying surficial aquifer throughout the area of the basin and does not discharge[] to the ground surface adjacent to its source.” Surface seepage is regulated under the federal NPDES portion of the permit, and deep seepage is regulated under the state SDS portion of the permit.
The NPDES portion of the permit authorizes discharges to the Dark River and unnamed wetland tributaries, to the Timber Creek and unnamed wetland tributaries, and to unnamed wetlands north of the basin. The permit does not authorize discharges to the east, based on the MPCA’s finding that the Sand River SCRS has eliminated surface discharges
The SDS portion of the permit includes groundwater conditions derived from a 250 mg/L sulfate standard for class 1 waters, based on the MPCA’s position that all groundwater in the state is class 1 water subject to the standards of
These Appeals
U.S. Steel filed certiorari appeals challenging the groundwater conditions in the permit and the denial of a permit-related contested-case hearing (A18-2094), and the denial of its request for a variance from groundwater-quality standards (A18-2095). WaterLegacy (A18-2159) and the band (A19-2163) filed separate appeals challenging the MPCA’s determination that the CWA does not regulate discharges from the basin to groundwater and challenging the surface-water conditions in the permit. This court consolidated all four appeals.
- Did the MPCA err by concluding that the CWA does not govern discharges of pollutants to groundwater?
- Did the MPCA err by applying the class 1 water-quality standards to groundwater in determining permit conditions?
- Does substantial evidence support the MPCA’s determination that water-quality-based effluent limits for discharges to surface waters are not required in the permit?
- Did the MPCA err by failing to include permit conditions relating to Minnesota’s wild rice rule?
ANALYSIS
Under the CWA and the State Water Pollution Control Act (WPCA),
The MPCA’s decisions are subject to judicial review under
I.
We first address an argument by WaterLegacy and the band that the MPCA erred in interpreting the CWA. WaterLegacy and the band assert that the MPCA erred by concluding that the CWA does not apply to discharges from the basin into groundwater (so-called deep seepage), even though the groundwater is hydrologically connected to area surface waters that are “navigable waters” covered by the act. The MPCA contends that the CWA does not extend to discharges to groundwater—even groundwater that is hydrologically connected to navigable waters—and that its decision to regulate deep seepage under the SDS portion of the permit rather than the NPDES portion of the permit is consistent with both federal and state law. U.S. Steel supports the MPCA’s decision to regulate discharges to groundwater only under the state’s SDS permitting program.
The legal issue of whether the CWA applies to discharges conveyed by groundwater to navigable waters has been a subject of disagreement among the federal courts of appeals and is expected to be decided by the United States Supreme Court during its current term. Compare Hawai‘i Wildlife Fund v. County of Maui, 881 F.3d 754, 765 (9th Cir. 2018) (holding that discharges to groundwater may be covered by CWA if “fairly traceable from the point source to a navigable water”), cert. granted sub. nom. County of Maui v. Hawaii Wildlife Fund, 139 S. Ct. 1164 (2019), and Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018) (holding that discharges to groundwater are within the scope of the CWA where discharges are “sufficiently connected to navigable
The dispute over whether the CWA applies to discharges of pollutants that reach navigable waters only after travelling through groundwater centers on the language of certain provisions of the CWA. The CWA generally prohibits the “discharge of any pollutant” without an NPDES permit. See
We begin our statutory analysis by determining whether the statutory language at issue has plain meaning or is ambiguous. See In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for Discharge of Treated Wastewater, 731 N.W.2d 502, 516 (Minn. 2007) (Annandale). Although we generally accord deference to decisions of administrative agencies, we will not defer to an agency’s interpretation of unambiguous statutes and administrative rules. Id. But if a statute or rule is ambiguous, we may accord deference to the reasonable interpretation by an agency charged with administering the statute or rule. Id.; see also A.A.A. v. Minn. Dep’t of Human Servs., 832 N.W.2d 816, 822 (Minn. 2013) (identifying agency interpretation as one appropriate factor to consider in interpreting ambiguous statute); Greene v. Comm’r of Minn. Dep’t of Human Servs., 755 N.W.2d 713, 722 (Minn. 2008); cf.
We conclude that the statutory definition of “discharge of a pollutant” is ambiguous because it is subject to more than one reasonable interpretation, as evidenced by the split among the federal courts of appeals. See Walgreens Specialty Pharmacy, LLC v. Comm’r of Revenue, 916 N.W.2d 529, 533 (Minn. 2018) (“A statute is ambiguous if it is susceptible to more than one reasonable interpretation.” (quotation omitted)).
Under a second reasonable interpretation, discharges from a point source to hydrologically connected groundwater are not governed by the CWA because the CWA
Having concluded that “discharge of a pollutant” is ambiguous, we must determine whether to accord deference to the MPCA’s interpretation that the language does not encompass discharges to groundwater, regardless of any hydrological connection to surface waters. See In re Alexandria Lake Area Sanitary Dist. NPDES/SDS Permit, 763 N.W.2d 303, 312-13 (Minn. 2009); Annandale, 731 N.W.2d at 516. We conclude that deference is warranted because (1) the MPCA is responsible for administering and enforcing the CWA, (2) the subject matter of the statute falls within the MPCA’s areas of expertise, and (3) the MPCA’s interpretation is reasonable under the circumstances of this case. See Alexandria, 763 N.W.2d at 313 (listing factors for consideration in determining level of deference afforded); see also Greene, 755 N.W.2d at 722 (recognizing that deference to an agency’s interpretation of a statute that it administers is appropriate in complex regulatory areas). The reasonableness of the MPCA’s interpretation is evidenced not only by the decisions of federal courts that have adopted it, but also by the MPCA’s
In addition to according deference, we observe that the MPCA’s interpretation is consistent with the statutory framework and with the legislative history of the CWA. With respect to statutory framework, we note that there are express references to groundwater in other provisions of the CWA, which makes telling the omission of such a reference from the statutory provisions governing NPDES permits. See Exxon Corp. v. Train, 554 F.2d 1310, 1322 (5th Cir. 1977) (explaining that provisions of CWA addressing groundwater evidence a “pattern . . . of federal information gathering and encouragement of state efforts to control groundwater pollution—but not of direct federal control over groundwater pollution”); Umatilla Waterquality Protective Ass’n, Inc. v. Smith Frozen Foods, Inc., 962 F. Supp. 1312, 1318 (D. Or. 1997) (noting that “when Congress wanted certain provisions of the CWA to apply to groundwater, it stated so explicitly” and that “section 1342, which establishes the NPDES permitting system, makes no reference to groundwater”). And with respect to the legislative history, we note that although an amendment was offered to extend the CWA’s coverage to groundwater, that amendment was rejected. See Exxon, 554 F.2d at 1325-29 (detailing legislative history). We agree with courts that have concluded that this legislative history evidences congressional intent that the CWA “would leave control of groundwater pollution exclusively to the states.” Exxon, 554 F.2d at 1329; see also Umatilla, 962 F. Supp. at 1318 (“[T]he CWA’s
For these reasons, we conclude that the MPCA did not err in interpreting the term “discharge of a pollutant,” and we therefore reject WaterLegacy and the band’s assertion that the MPCA erred by not regulating discharges from the basin to groundwater, so-called deep seepage, under the NPDES portion of the permit.
II.
We next turn to U.S. Steel’s argument that the MPCA erred in setting conditions related to groundwater quality in the SDS portion of the permit, specifically that U.S. Steel reduce the sulfate level in groundwater at the property boundary to 250 mg/L by December 31, 2025, and the in-basin sulfate level to 357 mg/L by December 1, 2028. These limits are designed to meet the EPA’s secondary drinking water standards for sulfate and total dissolved solids (the secondary standards). U.S. Steel argues that groundwater is not subject to the secondary standards because groundwater is governed by chapter 7060 of the Minnesota Rules,
The parties’ dispute in this regard requires us to interpret and apply the state’s water-quality standards. We must first determine whether the regulatory language is plain
Chapter 7050 begins with a section on scope, providing that it “appl[ies] to all waters of the state, both surface and underground.”
Chapter 7050 finally “classif[ies] all surface waters within or bordering Minnesota and designate[s] the beneficial uses for which th[ose] waters are protected.”
Chapter 7050 does not assign a classification to groundwater. The only classification of groundwater is made in chapter 7060, by
In summary, chapter 7050 does not include any language classifying groundwater as a class 1 water. Part 7050.0140 defines classes 1 through 7, and parts 7050.0221-.0227 set forth water-quality standards applicable to each class. Finally, the classification of specific waters “are listed in parts 7050.0400 to 7050.0470.”
Despite the absence of any language in chapter 7050 classifying groundwater as a class 1 water, the MPCA contends that chapter 7060‘s classification of groundwater “for use as potable water supply” compels the conclusion that all groundwater is classified as a class 1 water under chapter 7050. The argument is based primarily on comparisons that the MPCA draws between the WPCA definition of potable water and the regulatory description of class 1 waters. Compare
We acknowledge that some language in chapters 7050 and 7060 seems to anticipate the classification of some or all groundwater as a class 1 water. For instance,
We also acknowledge the parties’ various arguments about the rulemaking history. U.S. Steel relies on a 1973 Statement on Proposed WPC 22, emphasizing the MPCA‘s decision not to adopt numeric criteria for groundwater but instead to make groundwater subject to a nondegradation standard. WaterLegacy and the band argue that reliance on that document is inappropriate because the EPA had not yet adopted the secondary standards in 1973. Because we base our decision on the structure and language in the rules, we need not resolve disputes over the rulemaking history. We observe, however, that the relevant structure and language of the rules have been substantially the same since 1973, when the MPCA promulgated separate rules classifying groundwater and surface waters. See WPC 22 (groundwater), 24 (intrastate waters), 25 (interstate waters). The contemporaneous adoption of these three separate chapters of rules, by water type, supports our conclusion that the class 1 standards do not apply to groundwater.
III.
We next address arguments related to the NPDES portion of the permit. WaterLegacy and the band argue that the MPCA erred by failing to include water-quality-based effluent limits in the permit. The band additionally argues that several determinations by the MPCA in relation to the NPDES permit are unsupported by substantial evidence. These related arguments go to the heart of the MPCA‘s obligations in administering the NPDES permitting program.
“[T]he CWA requires that all NPDES permits for point sources incorporate limitations necessary to satisfy the state‘s promulgated water quality standards.”
The MPCA determined that WQBELs were not required in the NPDES portion of the permit because the Sand River SCRS has stopped all surface seepage on the east side of the basin, and the Dark River SCRS, when built, will stop all surface seepage on the west side of the basin.12 In other words, the MPCA determined that, once the Dark River SCRS is operational, there will be no discharges to surface waters that could cause a reasonable potential to exceed water-quality standards necessitating WQBELs in the NPDES permit. Thus, the MPCA‘s finding that the Sand River SCRS has stopped all discharges to the east side of the basin is central to its determination that WQBELs are not
“A decision is supported by substantial evidence when it is supported by (1) such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (2) more than a scintilla of evidence; (3) more than some evidence; (4) more than any evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl. Advocacy v. Minn. Pollution Control Agency, 644 N.W.2d 457, 464 (Minn. 2002). Our responsibility in determining whether there is substantial evidence to support an agency decision is “to examine the evidence on which [the] conclusions are based and determine whether they are well founded.” Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 828 (Minn. 1977). In applying the substantial-evidence test, a reviewing court must “determine whether the agency has adequately explained how it derived its conclusion and whether that conclusion is reasonable on the basis of the record.” In re Application of Minn. Power, 838 N.W.2d 747, 757 (Minn. 2013) (quotation omitted); see also Cable Commc‘ns Bd. v. Nor-West Cable Commc‘ns P‘ship, 356 N.W.2d 658, 668 (Minn. 1984) (“The substantial evidence test requires a reviewing court to evaluate the evidence relied upon by the agency in view of the entire record as submitted.“). “If an administrative agency engages in reasoned decision making, the court will affirm, even though it may have
In its brief, the MPCA cites three documents in support of its assertion that “[t]he Sand River SCRS has eliminated all surface water discharges to the Sand River Watershed since becoming fully operational.” First, it cites a November 2011 inspection report in which an MPCA inspector states: “There has been no discharge at SD002 after June, 2010, when the seep collection and return system became fully operational.” Second, it cites an April 2016 discharge monitoring report in which U.S. Steel checked a box indicating “No Discharge/No Flow for Monitoring Period” for SD002. And third, it cites U.S. Steel‘s 2011 permit application, which states that “all surface water discharges to the Sand River watershed have been eliminated” by the Sand River SCRS and that “[u]pon operation of the Dark River [SCRS], all surface water discharges from the Minntac tailings basin will have effectively been eliminated.”
The 2011 and 2016 inspection and monitoring reports may provide substantial evidence that the SCRS has stopped flow at SD002, a monitoring station at a discrete location on the east side of the basin. But the MPCA does not explain how cessation of flow at SD002 means that all surface seepage on the entire east side of the basin has been eliminated, particularly given that the SCRS spans 1¾ miles and was intended to address surface seepage at 13 distinct locations along the east side of the basin. Nor do U.S. Steel‘s
During oral argument, the MPCA cited two additional documents, 2018 EPA and MPCA inspection reports, which generally describe the operation of the SCRS. Nothing in these reports supports the MPCA‘s finding that the Sand River SCRS has eliminated all surface seepage on the east side of the basin. In fact, both of the reports identify circumstances in which the SCRS has failed to capture seeps.
The band asserts that the Sand River SCRS has not entirely eliminated surface seepage, and it cites a number of documents in the record in support of this assertion. In particular, the band relies on U.S. Steel‘s 2017 Tailings Basin Status Report, which includes a summary of an inspection of the tailings basin perimeter performed by U.S. Steel. The purpose of that inspection was, in part, to “inspect and document the condition of any discrete surface seeps emanating from the tailings basin perimeter dike in comparison to previous inspections.” The inspection summary includes photographs of ponded water at various locations, including one just outside of the Sand River SCRS. The band also relies on letters from the Great Lakes Indian Fish and Wildlife Commission that include photos of ponded water near the basin. And the band relies on an EPA inspection report that includes test results of water samples revealing comparably high sulfate levels inside and outside of the SCRS. These documents cited by the band tend to suggest continued surface seepage from the Sand River side of the basin. The MPCA has not explained why the documents are not evidence of surface seepage.
We finally address arguments by WaterLegacy and the band regarding the wild rice rule. Adopted in 1973, the wild rice rule is part of The wild rice rule is a water-quality standard that is subject to enforcement under the CWA, including through the NPDES permitting program. See In 2011, the legislature passed a law requiring the MPCA to engage in study and adopt new wild rice water-quality standards, and to limit enforcement of the existing rule until new rules were adopted. 2011 Minn. Laws 1st Spec. Sess. ch. 2, art. 4, § 32, at 783-85. The 2011 legislation did not include a deadline for adoption of new rules. In 2015, the legislature passed a law requiring the MPCA to adopt new rules by January 15, 2018, and providing that implementation of the wild rice water quality standard in Minnesota Rules, part 7050.0224, subpart 2, shall be limited to the following, unless the permittee requests additional conditions: (i) the agency shall not require permittees to expend money for design or implementation of sulfate treatment technologies or other forms of sulfate mitigation; and (ii) the agency may require sulfate minimization plans in permits; and (2) the agency shall not list waters containing natural beds of wild rice as impaired for sulfate under section 303(d) of the federal Clean Water Act, United States Code, title 33, section 1313, until the rulemaking described in this paragraph takes effect. 2015 Minn. Laws 1st Spec. Sess. ch. 4, art. 4, § 136, at 2094-95. In 2017, the legislature extended the deadline for adopting new rules to January 15, 2019. 2017 Minn. Laws ch. 93, art. 2, § 149, at 742. The MPCA drafted new rules, but they were disapproved by the chief administrative law judge of the office of administrative hearings in January 2018, and the MPCA “withdrew the Wild Rice rule from the rulemaking process to allow for more work on the implementation process.” In response to comments on the permit, the MPCA stated that it “continues to support the scientific basis developed in the rulemaking and believes clarification of the rule‘s application is needed, such as adopting the waters to which the standard applies into the rule.” The MPCA also stated that, “[b]y the time the investigation required by the [2018 Minntac] permit is complete, the MPCA expects to have greater clarity on the appropriate wild rice standard.” WaterLegacy and the band argue that the wild rice rule remains effective and must be enforced under the CWA notwithstanding the Minnesota Legislature‘s attempt to limit With respect to the SDS portion of the permit, the MPCA argues that it is precluded from enforcing the wild rice rule by the 2015 legislation. We agree that the wild rice rule cannot, under current law, be the basis for conditions requiring the expenditure of funds in the SDS permit. See 2015 Minn. Laws 1st Spec. Sess. ch. 4, art. 4, § 136, at 2094-95. With respect to the state permitting program, the legislature was free to, and has, overridden the wild rice rule. See, e.g., Special Sch. Dist. No. 1 v. Dunham, 498 N.W.2d 441, 445 (Minn. 1993) (“It is elemental that when an administrative rule conflicts with the plain The MPCA did not err by regulating discharges to groundwater only under the SDS portion of the permit. The MPCA did err by applying water-quality standards for class 1 waters to groundwater in determining conditions in the SDS portion of the permit. And the MPCA‘s determination that WQBELs are not required in the NPDES portion of the permit is not supported by substantial evidence. Accordingly, we reverse the MPCA‘s decision reissuing the permit and remand for further proceedings consistent with this decision. Reversed and remanded.
DECISION