EnviroLaw Updates

Cases and Issues

Threat of Fish Virus Leads to Litigation and Legislation
Minnesota Supreme Court Issues Major Clean Water Act Decision

Threat of Fish Virus Leads to Litigation and Legislation

Viral Hemorrhagic Septicemia (VHS), which has spread to four of the five Great Lakes, has prompted a lawsuit against the Minnesota Pollution Control Agency in an effort to prevent its introduction into Lake Superior. VHS, commonly referred to as “the Ebola of Fish,” causes fish to hemorrhage from their internal organs and poses a serious threat to sport and commercial fishing in the Great Lakes fishery which generates $5 billion in annual revenue.

It is believed that VHS, which was originally found only in ocean fish populations, was introduced into the Great Lakes by ballast water from an ocean-going ship. Ballast water is taken onboard an empty ship to provide stability at sea and is discharged when the ship is loaded with cargo. Unfortunately, numerous fish and other species can be taken on board with the ballast water and introduced into the ecosystems where the water is discharged – sometimes with potentially catastrophic effects.

Recently, the Minnesota Center for Environmental Advocacy (MCEA) filed a lawsuit against the Minnesota Pollution Control Agency (MPCA) alleging that the agency is required to regulate ballast water discharges under its delegated authority to enforce the Clean Water Act. MCEA is seeking a an order directing MPCA to issue and enforce permits regulating ballast water discharges in Lake Superior. MPCA has responded that the threats posed by ballast water discharges require uniform national regulation and, therefore, has chosen to defer to the Environmental Protection Agency.

Two bills which would require ballast water discharge standards far more stringent than current Federal regulations are working their way through Congress. Both bills exempt ships which are confined to the Great Lakes from regulation. This may be significant for Minnesota and Lake Superior because the ports in Duluth and Two Harbors rely heavily on intra-lake ships to carry Minnesota products throughout the upper Midwest. Although the bills would curtail the introduction of invasive species from outside the Great Lakes, they would do little to slow the spread across the lakes. The Minnesota legislature is considering a similar bill addressing discharges from ocean-going vessels and would join Michigan as the second Great Lakes state to pass its own law regulating ballast water discharges.

Minnesota Supreme Court Issues Major Clean Water Act Decision

The Minnesota Supreme Court recently reversed a decision by the Court of Appeals which halted plans for more than 60 new or expanded wastewater facilities and threatened future residential developments across the half of the State within the Lake Pepin watershed, including the Twin Cities. The Court of Appeals decision prohibited the permitting of any new or expanded discharges which would contribute to Lake Pepin’s impaired status until plans were created to bring the lake into compliance with the requirements of the Clean Water Act.

The controversy centers on a discharge permit issued for a joint wastewater treatment facility proposed by the cities of Annandale and Maple Lake to replace the cities’ existing facilities which were constructed in the 1940s. The Minnesota Pollution Control Agency (MPCA) issued the permit even though the proposed facility would discharge an additional 2,200 pounds of phosphorus into the North Fork of the Crow River, eventually reaching Lake Pepin. The agency reasoned that the increased phosphorus discharge would be off-set by a 50,000 pound reduction in the annual phosphorus discharge from an upgraded wastewater treatment facility in Litchfield and, therefore, would not contribute to the continued impairment of Lake Pepin. The Minnesota Court of Appeals held the relevant Clean Water Act regulations do not allow MPCA to consider such off-setting reductions and reversed the agency’s decision to issue the permit.

The Minnesota Supreme Court disagreed and concluded that the federal regulations allow MPCA “to make a range of policy judgments based on [its] scientific and technical knowledge” and that it was appropriate for the agency to consider the off-setting reductions from the Litchfield facility when it issued the permit to Annandale and Maple Lake. The Supreme Court’s decision relaxes the de facto moratorium imposed by the Court of Appeals and makes room for continued development by granting MPCA broad latitude to implement its permitting authority under the Clean Water Act.

Lockridge Grindal Nauen P.L.L.P. represented the Metropolitan Council in this matter as an amicus curiae before the Minnesota Supreme Court. The views expressed in this e-mail are exclusively those of Lockridge Grindal Nauen P.L.L.P. and not the Metropolitan Council or any other clients of the firm.

Please share this information with a friend or colleague. If you are a new reader and wish to receive Lockridge Grindal Nauen’s EnviroLaw newsletter or would like to send us a comment about the newsletter, please send an e-mail to enviro@locklaw.com. If you would like to reprint any materials contained in our newsletter, please call David Zoll at 612-339-6900 or e-mail enviro@locklaw.com to arrange permission.

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Lockridge Grindal Nauen Our People Government Relations- State and Federal Practice Areas Events Endorsements Media Community Summer Associate Program Contact Us Map & Directions Environmental/Real Estate Law EnviroLaw Updates EnviroLaw Events Decisions Publications	EnviroLaw Updates Cases and Issues Threat of Fish Virus Leads to Litigation and Legislation Minnesota Supreme Court Issues Major Clean Water Act Decision Threat of Fish Virus Leads to Litigation and Legislation Viral Hemorrhagic Septicemia (VHS), which has spread to four of the five Great Lakes, has prompted a lawsuit against the Minnesota Pollution Control Agency in an effort to prevent its introduction into Lake Superior. VHS, commonly referred to as “the Ebola of Fish,” causes fish to hemorrhage from their internal organs and poses a serious threat to sport and commercial fishing in the Great Lakes fishery which generates $5 billion in annual revenue. It is believed that VHS, which was originally found only in ocean fish populations, was introduced into the Great Lakes by ballast water from an ocean-going ship. Ballast water is taken onboard an empty ship to provide stability at sea and is discharged when the ship is loaded with cargo. Unfortunately, numerous fish and other species can be taken on board with the ballast water and introduced into the ecosystems where the water is discharged – sometimes with potentially catastrophic effects. Recently, the Minnesota Center for Environmental Advocacy (MCEA) filed a lawsuit against the Minnesota Pollution Control Agency (MPCA) alleging that the agency is required to regulate ballast water discharges under its delegated authority to enforce the Clean Water Act. MCEA is seeking a an order directing MPCA to issue and enforce permits regulating ballast water discharges in Lake Superior. MPCA has responded that the threats posed by ballast water discharges require uniform national regulation and, therefore, has chosen to defer to the Environmental Protection Agency. Two bills which would require ballast water discharge standards far more stringent than current Federal regulations are working their way through Congress. Both bills exempt ships which are confined to the Great Lakes from regulation. This may be significant for Minnesota and Lake Superior because the ports in Duluth and Two Harbors rely heavily on intra-lake ships to carry Minnesota products throughout the upper Midwest. Although the bills would curtail the introduction of invasive species from outside the Great Lakes, they would do little to slow the spread across the lakes. The Minnesota legislature is considering a similar bill addressing discharges from ocean-going vessels and would join Michigan as the second Great Lakes state to pass its own law regulating ballast water discharges. Copyright © 2007 Lockridge Grindal Nauen P.L.L.P. Minnesota Supreme Court Issues Major Clean Water Act Decision The Minnesota Supreme Court recently reversed a decision by the Court of Appeals which halted plans for more than 60 new or expanded wastewater facilities and threatened future residential developments across the half of the State within the Lake Pepin watershed, including the Twin Cities. The Court of Appeals decision prohibited the permitting of any new or expanded discharges which would contribute to Lake Pepin’s impaired status until plans were created to bring the lake into compliance with the requirements of the Clean Water Act. The controversy centers on a discharge permit issued for a joint wastewater treatment facility proposed by the cities of Annandale and Maple Lake to replace the cities’ existing facilities which were constructed in the 1940s. The Minnesota Pollution Control Agency (MPCA) issued the permit even though the proposed facility would discharge an additional 2,200 pounds of phosphorus into the North Fork of the Crow River, eventually reaching Lake Pepin. The agency reasoned that the increased phosphorus discharge would be off-set by a 50,000 pound reduction in the annual phosphorus discharge from an upgraded wastewater treatment facility in Litchfield and, therefore, would not contribute to the continued impairment of Lake Pepin. The Minnesota Court of Appeals held the relevant Clean Water Act regulations do not allow MPCA to consider such off-setting reductions and reversed the agency’s decision to issue the permit. The Minnesota Supreme Court disagreed and concluded that the federal regulations allow MPCA “to make a range of policy judgments based on [its] scientific and technical knowledge” and that it was appropriate for the agency to consider the off-setting reductions from the Litchfield facility when it issued the permit to Annandale and Maple Lake. The Supreme Court’s decision relaxes the de facto moratorium imposed by the Court of Appeals and makes room for continued development by granting MPCA broad latitude to implement its permitting authority under the Clean Water Act. Lockridge Grindal Nauen P.L.L.P. represented the Metropolitan Council in this matter as an amicus curiae before the Minnesota Supreme Court. The views expressed in this e-mail are exclusively those of Lockridge Grindal Nauen P.L.L.P. and not the Metropolitan Council or any other clients of the firm. Please share this information with a friend or colleague. If you are a new reader and wish to receive Lockridge Grindal Nauen’s EnviroLaw newsletter or would like to send us a comment about the newsletter, please send an e-mail to enviro@locklaw.com. If you would like to reprint any materials contained in our newsletter, please call David Zoll at 612-339-6900 or e-mail enviro@locklaw.com to arrange permission. Copyright © 2007 Lockridge Grindal Nauen P.L.L.P.
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