When the federal Clean Water Act was passed in 1972, one of its main features was water pollution permits, or National Pollutant Discharge Elimination System (NPDES) permits. All facilities that discharge pollutants from any point source into waters of the United States are required to obtain a NPDES permit. Generally, this applies to municipal sewage treatment plants, factories, and city stormwater runoff. The permit provides two levels of control: technology-based limits (based on the ability of dischargers in the same industrial/municipal category to treat wastewater) and water quality-based limits (if technology-based limits are not sufficient to protect the receiving water body).

The Clean Water Act allows EPA to authorize the NPDES program to state governments, enabling states to perform many of the permitting, administrative, and enforcement aspects of the NPDES Program. (The Minnesota Pollution Control Agency is delegated by the US EPA to operate the NPDES program.) In these states, EPA retains oversight responsibilities.

NPDES permits expire every 5 years and must be reissued to incorporate the latest regulations and technology requirements.  Every time a NPDES permit is issued or reissued the public is given an opportunity to comment on the terms of the permit.  This public participation process is an important component of the NPDES permitting process because it gives the public an opportunity to relay any specific concerns regarding the water receiving the discharge and the permitted facility.   Once the terms of a permit are finalized, the regulated facility must strictly comply with the terms of the permit or be faced with potential citizen or government enforcement action.

MCEA has worked on scores of permits over many years to ensure that point source discharges do not lead to degraded water quality, writing comments on many permits published for public notice.

In October 2009, MCEA petitioned the US EPA to require corrective action, or in the alternative, de-delegation of the Minnesota Pollution Control Agency’s NPDES authorization, due to MPCA’s failure to calculate and impose water quality based limits for phosphorus and to control and eradicate illegal straight-pipe septic systems.

MCEA assessed the overall compliance with discharge permits and associated enforcement actions in a report issued in December 2010. The report reviewed discharge data and permit submissions from 2005 through 2009.

Legal Cases
Annandale/Maple Lake: MPCA issued a permit for a joint permit by the cities of Annandale and Maple Lake that would increase the phosphorus discharged to the North Fork of the Crow River, which is upstream from Lake Pepin. Lake Pepin is impaired for high levels of phosphorus. To “offset” the increased phosphorus, MPCA proposed reducing the permit limit for phosphorus from Litchfield. MPCA argued that the offset meant there would be no increase in the phosphorus load to Lake Pepin. MCEA objected to the permit because federal regulations prohibit new discharges to already-impaired waters. Moreover, the “offset” did not require any actual reductions from Litchfield, so the total phosphorus entering Lake Pepin would increase. The Minnesota Court of Appeals agreed with MCEA, but the Minnesota Supreme Court overturned the decision.

MS4 General Permit: MCEA challenged several aspects of the initial 2002 MS4 permit, including the lack of public notice, potential degradation of water, meeting antidegradation requirements, and monitoring requirements. The Minnesota Court of Appeals held that the process used by MPCA denied the public of its notice and comment rights, did not meet all antidegradation requirements, and did not include certain federally-required language. As a result of the lawsuit, MPCA revised the permit and undertook a different public notice process that better incorporated the local stormwater plans.

Princeton: The Minnesota Pollution Control Agency issued a water pollution permit so the city could build a new, bigger sewage treatment plant and then dump the treated water into the Rum River, which is designated as an Outstanding Resource Value Water-Restricted. MCEA argued that the PCA should have considered a smaller plant in conjunction with decentralized sewage treatment. In May 2005, the court of appeals agreed with MCEA. Princeton is again planning to expand its treatment system.

Alexandria: The City of Alexandria is next to Lake Winona, which receives all of the city’s wastewater. Lake Winona is impaired for its high phosphorus levels, and MPCA has determined that nearly all of the phosphorus comes from the city’s wastewater. The Minnesota Pollution Control Agency issued a permit to Alexandria with what it called a compliance schedule – a TMDL that would require undetermined reductions at some point in the future. MCEA objected that the permit required a compliance schedule with a pollution limit and final deadline to meet the limit, which the permit did not include. MCEA won in the court of appeals. The MPCA appealed to the state Supreme Court, which overturned the Court of Appeals decision.  Five years after MCEA objected to the initial permit, the TMDL is still underway and the permit still does not have a water quality-based effluent limit to protect Lake Winona.

Faribault and Owatonna: Over the objections of MCEA, the pollution control agency issued permits for the sewage treatment plants at both Faribault and Owatonna in 2003. Neither permit had a phosphorus limit, even though the water eventually flows into Lake Byllesby (which has too much phosphorus and an algae problem). MCEA appealed MPCA’s decision to issue the permits and the Minnesota Court of Appeals remanded the case for a contested case hearing. Ultimately, the case went to arbitration, resulting in interim phosphorus reduction planning and new permits with phosphorus limits to be issued in 2011.