Summary of a Recent
Judicial Development in
Clean Water Act

Agency's Discretion in Granting Effluent Discharge Exemptions Upheld

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Coalition of Greater Minnesota Cities v. Minnesota Pollution Control Agency, 765 N.W.2d 159 (Minn. Ct. App. 2009), the Minnesota Court of Appeals held that a newly adopted regulation concerning total phosphorus effluent discharge limits for municipal wastewater dischargers did not violate the Minnesota Constitution or the Minnesota Administrative Procedure Act, and upheld the rule as valid.

Background

The Coalition of Greater Minnesota Cities sought to invalidate newly adopted Minn. R. 7053.0255, subpart 4, alleging that the regulation granted "unbridled discretion" to the Minnesota Pollution Control Agency (MPCA) to deny phosphorus effluent discharge exemptions to municipal dischargers with a new or expanded discharge of more than 1,800 pounds of phosphorus per year, whereas those dischargers would otherwise qualify for an exemption under the old rule. Id. at 161. The limitations under the former rule, which applied a 1 mg/L total phosphorus limit to dischargers "if the discharge [was] directly to or affect[ed] a downstream lake or reservoir," remained in place, but the new rule imposed the 1 mg/L limit on "new or expanding facilities" without requiring the MPCA to demonstrate how the discharge would affect downstream lakes and reservoirs. Id. at 163. However, subpart 4 of the rule provided that dischargers "may qualify for an alternative total phosphorus limit or no limit" under one of three possible exceptions. Id. at 164-65.

Arguments

The coalition argued that the rule was "an unconstitutional delegation of purely legislative powers" in violation of the Minnesota Constitution, exceeded the scope of the MPCA's rulemaking authority, and violated the Minnesota Administrative Procedure Act. Id. at 161. It argued that it had standing to bring its challenge because the MPCA's "complete and unbridled discretion" could be detrimental to its members in terms of costs of compliance with the 1 mg/L limit, should the exemptions not apply. Id. at 164.

The MPCA argued that the coalition lacked standing to challenge the rule because its alleged injury was merely speculation based on its proposed possible interpretation of the rule. Id.

Analysis and Holdings

The court found that the coalition had standing to challenge the rule because by "citing the effects that an overbroad application of the rule would have on its municipalities," it had alleged sufficient harm to its members. Id. at 164. However, the court upheld the rule under the Minnesota Constitution because the rule granted permissible discretion to the MPCA to enforce its regulations, and if a discharger felt the MPCA had abused its discretion, it could challenge the agency's decision pursuant to the agency's administrative review process. Id. at 165-67. The court further found that the rule did not exceed the MPCA's statutory authority because the agency was "specifically authorized to adopt 'reasonable' rules 'in order to prevent, control or abate water pollution,' including establishing new effluent limitations." Id. at 167-68. The court likewise held that the MPCA had complied with the applicable public notice and comment rulemaking requirements, and that it was not "overly prescriptive and inflexible" because the agency did not have "unbridled" discretion and the available exemptions provided additional flexibility, and therefore upheld the rule as valid. Id. at 168-69.

The case was decided on May 12, 2009.