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In re 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

ELR Citation: 42 ELR 20243
Nos. A12-1661, (Minn. Ct. App., 11/13/2012)

A Minnesota appellate court held that the state environmental agency did not err in certifying under CWA §401 EPA's proposed NPDES vessel general permit, which allows shipping vessels in Lake Superior to discharge ballast water in state waters. Nonprofit groups argued that the agency applied an incorrect legal standard concerning future compliance with water-quality standards under the CWA. But the agency complied with each requirement of federal and state law identified by the groups, including the §401(d) requirement that the agency set forth certain limitations and monitoring requirements that will become conditions of the NPDES permit. The groups also argued that the agency failed to include numeric water quality-based effluent limitations for aquatic invasive species in its certification. The CWA requires that the certification set forth "any effluent limitations and other limitations" that the agency deems necessary. But the CWA's implementing regulations do not foreclose the possibility that narrative limitations may be adequate to satisfy that standard without the need for numeric water quality-based effluent limitations, and the groups failed to identify any provision of law that would require numeric water-quality-based effluent limitations on the ground that narrative water-quality-based effluent limitations necessarily are inadequate. The court, therefore, declined to interfere with the agency's reasoned decision not to impose numeric limitations. Last, the groups argued that the conditions imposed by the agency will be ineffective in preventing the spread of aquatic invasive species. But the record supports the agency's determination that the conditions imposed are sufficient to assure compliance with water quality standards.