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In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater

ELR Citation: 37 ELR 20121
Nos. No. A04-2033, (Minn., 05/17/2007)

The court held that a lower court erred when it reversed a state environmental agency's decision to issue a national pollutant discharge elimination system (NPDES) permit for a proposed wastewater treatment plant. The plant's discharge would flow into a body of water with impaired status under the Clean Water Act (CWA). The agency concluded that any increase in phosphorus discharge caused by the permit would not violate 40 C.F.R. §122.4(i), which provides in part that a state may not issue an NPDES permit "[t]o a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards." It reasoned that any increase in phosphorous discharge would be offset by an approximate 53,500-pound annual reduction in phosphorus due to an upgrade of a nearby wastewater treatment plant. The lower court reversed the agency's decision, finding that phosphorus discharge, when viewed in isolation, would violate water quality standards under the CWA. The state agency, however, is legally required to enforce and administer 40 C.F.R. §122.4(i) as its own, even though it is a federal regulation. Moreover, the agency is entitled to deference because the regulation is ambiguous. And given the agency's training and expertise, the agency's interpretation of the regulation to allow offsets from another source in determining whether a new source will cause or contribute to the violation of water quality standards is reasonable.