In re 401 Water Quality Certification, No. A12–1661.

• Decision Date: 13 November 2012
• Docket Number: No. A12–1661.
• Citation: 822 N.W.2d 676
• Parties: In the Matter of the Decision on the Approval for Submittal of a 401 WATER QUALITY CERTIFICATION to the U.S. Environmental Protection Agency for the Draft 2013 Vessel General Permit and the Draft 2013 Small Vessel General Permit.
• Court: Minnesota Court of Appeals

822 N.W.2d 676

In the Matter of the Decision on the Approval for Submittal of a 401 WATER QUALITY CERTIFICATION to the U.S. Environmental Protection Agency for the Draft 2013 Vessel General Permit and the Draft 2013 Small Vessel General Permit.

No. A12–1661.

Court of Appeals of Minnesota.

Nov. 13, 2012.

Syllabus by the Court

The Minnesota Pollution Control Agency did not err in issuing a certification,pursuant to section 401 of the Clean Water Act, 33 U.S.C. § 1341 (2006), of the United States Environmental Protection Agency's proposed National Pollutant Discharge Eliminations System (NPDES) Vessel General Permit (VGP), which would allow discharges of ballast water in Minnesota waters, effective in December 2013.

Kathryn M. Hoffman, Minnesota Center for Environmental Advocacy, St. Paul, MN, and Neil S. Kagan (pro hac vice), National Wildlife Federation, Ann Arbor, Michigan, for relators, Minnesota Conservation Federation, Minnesota Center for Environmental Advocacy, National Wildlife Federation, and Natural Resources Defense Council.

Lori Swanson, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, MN, for respondent, Minnesota Pollution Control Agency.

Gregory A. Fontaine, Aleava R. Sayre, Matthew D. Melewski, Leonard, Street and Deinard, P.A., Minneapolis, MN, for intervenor, Lake Carriers' Association.

Considered and decided by JOHNSON, Chief Judge; SCHELLHAS, Judge; and KIRK, Judge.

OPINION

JOHNSON, Chief Judge.

The federal Clean Water Act provides that the United States Environmental Protection Agency (EPA) may issue a permit for the discharge of pollutants into navigable waters only if an affected state certifies that discharges conducted pursuant to the permit will comply with certain water-quality standards. In this matter, the EPA proposed a general permit that would allow shipping vessels in Lake Superior to discharge ballast water that may contain non-native aquatic species. The Minnesota Pollution Control Agency (MPCA) issued a certification for the proposed general permit, with eight conditions. Four non-profit organizations have challenged the MPCA's certification by way of a writ of certiorari. We affirm.

FACTS

This case arises from concern about the spread of aquatic invasive species in Lake Superior and other Minnesota waters. The case was initiated by four non-profit organizations that are interested in the preservation of Minnesota's waters—the Minnesota Conservation Federation, the Minnesota Center for Environmental Advocacy, the National Wildlife Federation, and the Natural Resources Defense Council. These four relators have challenged an action of the Minnesota Pollution Control Agency (MPCA), which is responsible for protecting the state's water quality. SeeMinn.Stat. § 115.03 (2010). The Lake Carriers' Association, which represents numerous companies that operate cargo ships on the Great Lakes, has intervened to urge affirmance of the MPCA's action.

Spread of AIS Through Ballast–Water Discharges

Aquatic invasive species (AIS) are living organisms that are transported from an area in which they are native to an area in which they are not native and thereafter displace native species, sometimes causing environmental and economic harm. The four relators in this case have cited, as examples, the Zebra mussel, which is native to Russia but was found in Lake Erie in 1988; the Eurasian ruffe, which is native to Central and Eastern Europe but was found in the Great Lakes in 1986; the New Zealand mudsnail, which is native to New Zealand but was found near the port of Duluth in 2005; and the spiny waterflea, which is native to Europe and Asia but was found in Lake Ontario in 1982. Relatorsestimate that these and other AIS impose costs of $200 million per year in the Great Lakes region.

AIS are transported from their native areas to Minnesota waters primarily through the ballast water of ships. Large shipping vessels take in water as ballast, as necessary, to provide stability and control, and discharge the water, as necessary, when loading cargo. By making discharges in Minnesota waters of ballast water that was taken in outside of Minnesota waters, shipping vessels may cause the release and spread of non-native aquatic species. According to the MPCA, millions of gallons of ballast water are discharged into Minnesota waters every day. The MPCA has stated that more ballast water is discharged at the ports of Duluth, Minnesota, and Superior, Wisconsin, than at any other place in the Great Lakes. The Duluth Seaway Port Authority estimates that only 5 percent of ballast-water discharges are made by ocean-going vessels (known as “Salties”) and that 95 percent are made by Great Lakes-only vessels (known as “Lakers”). The MPCA notes that, at present, the spread of AIS is less extensive in Lake Superior than in other parts of the Great Lakes, which have as many as three times the number of AIS as are present in Lake Superior.

Scientists have studied the relationship between ballast-water discharges and the spread of AIS. They generally agree that the greater the number of an individual non-native species that is released into a non-native area, the higher the probability that the species will become established in that area. But there is no known minimum amount of AIS necessary to establish a new population or, conversely, no known amount of AIS that may be released without the subsequent establishment of a non-native species. Efforts are underway to develop various systems to treat ballast water so that it does not spread AIS. The MPCA has stated, “Most ballast experts believe that ballast water (treatment) technology will ultimately provide the best protection for the Great Lakes and all of the nation's waters.” Until ballast-water treatment technology is available, the shipping industry may rely on certain ballast-water management techniques, such as ballast-water exchanges and salt-water flushes.

The Clean Water Act

The federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), 33 U.S.C. §§ 1251–1387 (2006), “is a comprehensive water quality statute designed to ‘restore and maintain the chemical, physical, and biological integrity of the Nation's waters.’ ” PUD No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700, 704, 114 S.Ct. 1900, 1905, 128 L.Ed.2d 716 (1994) (quoting 33 U.S.C. § 1251(a)). The CWA “establishes distinct roles for the Federal and State Governments.” Id. The EPA is charged with, among other things, setting limits on discharges into the country's navigable waters. Id. (citing 33 U.S.C. §§ 1311, 1314). One of the states' roles is to create water-quality standards, which must “ ‘consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses.’ ” Id. (quoting 33 U.S.C. § 1313(c)(2)(A)). State-created water-quality standards “ ‘shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of’ ” the CWA and “ ‘shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational [and other purposes].’ ” Id. at 704–05, 114 S.Ct. 1900 (alteration in original) (quoting 33 U.S.C. § 1313(c)(2)(A)).

As a general rule, the CWA prohibits the discharge of pollutants into navigable waters, unless a person has a permit allowing the discharge. 33 U.S.C. § 1311. A permit issued pursuant to the CWA must incorporate applicable effluent limits. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.44(a)(1) (2012). An “effluent limit” is “any restriction established by a State or the [EPA] Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged” into waters regulated by the CWA. 33 U.S.C. § 1362(11). A permit for the discharge of pollutants also must include conditions that will result in compliance with state water-quality standards. 33 U.S.C. § 1342(a)(1); 40 C.F.R. § 122.44(d) (2012). Under section 401 of the CWA, the EPA may not issue a permit allowing discharges of pollutants into navigable waters unless the states affected by the permit have certified that the permitted activity will comply with certain provisions of the CWA and applicable state laws or have waived their right to make such a certification. 33 U.S.C. § 1341(a)(1).

Regulation of Ballast–Water Discharges

Until a few years ago, ballast-water discharges were not regulated at either the federal or state level. In 1973, the EPA promulgated regulations that exempted incidental discharges of ballast water from the prohibitions of the CWA. See Northwest Envtl. Advocates v. United States EPA, 537 F.3d 1006, 1011 (9th Cir.2008). Three decades later, however, a federal district court in California determined that the EPA had exceeded its statutory authority by promulgating that regulation. Northwest Envtl. Advocates v. United States EPA, No. C 03–05760, 2005 WL 756614, at *13 (N.D.Cal. Mar. 30, 2005). The district court vacated the regulatory exemption, effective September 30, 2008. Northwest Envtl. Advocates v. United States EPA, No. C 03–05760 SI, 2006 WL 2669042, at *15 (N.D.Cal. Sept. 18, 2006). The United States Court of Appeals for the Ninth Circuit affirmed. 537 F.3d at 1027. The effective date of the vacatur of the regulatory exemption later was extended to February 6, 2009.

In response to the district court decision in Northwest Environmental Advocates, the EPA began taking steps to issue a permit to govern ballast-water discharges in American waters, which became known as the National Pollutant Discharge Eliminations System (NPDES) Vessel General Permit (VGP). NEA, 537 F.3d at 1026–27. As required by section 401 of the CWA, the MPCA issued a conditional certification of the EPA's first proposed VGP in November 2008. See United States EPA Vessel General Permit for Discharges Incidental to Normal Operation of...