Supreme Court Mulls Important Sewer Case
By: SUSAN D. STEINWALL
August 2006
When the Minnesota Supreme Court hands down its decision In the Matter of the Cities of Annandale and Maple Lake, it may be regarded as one of the key Minnesota development cases. The case turns on the extent to which a new wastewater treatment plant may discharge pollution into waters that are already impaired. If increased discharges are disallowed, developments throughout most of Minnesota that rely on new wastewater plants could be severely limited.
The Minnesota Court of Appeals, in a decision decided August 9, 2005, determined that any increase of pollution into impaired water was impermissible. It reversed the Minnesota Pollution Control Agency’s (“MPCA”) decision to issue a new wastewater treatment plant discharge permit to the cities of Maple Lake and Annandale. The Minnesota Supreme Court heard oral arguments on the matter on May 3, 2006, and is expected to hand down its decision within the next few months.
The Annandale/Maple Lake case is important because if the Court of Appeals decision is upheld, the availability of new wastewater treatment plants and the capacity of existing plants will play a larger role in determining the fate of new development.
In 2003, Annandale and Maple Lake applied to the MPCA for a permit to construct a new wastewater treatment plant. The plant, once constructed, would discharge approximately 3,600 pounds of phosphorous into the north fork of the Crow River, a tributary of Mississippi River that flows into Lake Pepin. Both Lake Pepin as well as a section of the north fork of the Crow River are “impaired waters” under the Federal Clean Water Act. Annandale currently does not discharge phosphorous into any water body, but Maple Lake discharges approximately 1,400 pounds per year. If the MPCA permit is granted, the cities’ combined annual discharge of phosphorous through the operation of their new wastewater treatment plant would increase by approximately 2,200 pounds.
The MPCA argued that the increased discharge is permissible because the City of Litchfield’s new plant, which also discharges into the north fork of the Crow River, will reduce phosphorous discharge by approximately 53,500 pounds per year. The slight increase from the Annandale/Maple Lake plant would be offset by the greater decrease in discharge from the Litchfield plant, according to the MPCA. The MPCA also argued that the U.S. Environmental Protection Agency recognizes pollution offsets.
The Minnesota Center for Environmental Advocacy appealed the MPCA’s decision to issue a permit to Annandale and Maple Lake, arguing that no increased discharge into impaired waters is permitted under federal law until new standards are developed.
As any Minnesotan knows, the Mississippi River drains much of the State: most of the creeks, streams, and smaller rivers in the southern part of Minnesota find their way into the Mississippi River and ultimately into Lake Pepin, which is an impaired water. If increased discharges to Lake Pepin are disallowed and the Court of Appeals’ decision is upheld, then any development that will rely on a new wastewater plant that discharges into the Mississippi or one of its tributaries could be severely limited.
The Annandale/Maple Lake case is concerned with what levels of discharge are permitted into an impaired water body before standards have been established. Those standards, known as the Total Maximum Daily Load (“TMDL”), are the amounts of pollutants that may be discharged into an impaired water. The MPCA is expected to finish its TMDL for Lake Pepin by 2009 and for the north fork of the Crow River by 2012.