After suit from tribes, Minnesota judge declines to overturn water quality standards

MINNEAPOLIS, Minn. (CN) — A Minnesota federal judge on Friday declined to overturn the Environmental Protection Agency's approval of the state's recently revised water quality standards after Native American tribes in the state sued, arguing the new rules were too lax.

The tribes' concerns about dangers to wild rice and fish in treaty-ceded lands were not enough to warrant reversal of the agency's decision, U.S. District Judge John Tunheim, a Clinton appointee, wrote in his decision late Friday morning.

Instead, Tunheim granted summary judgment to the EPA, state regulators and two of northern Minnesota's largest iron-ore interests.

He did so with some reluctance — noting that while he was “in substantial agreement with the [Chippewa] Bands’ concerns regarding the revisions’ potential to impact aquatic life, wild rice, and their treaty-reserved rights to use Minnesota waters,” the EPA had shown that its approval of Minnesota's new standards was rational and therefore above judicial scrutiny. 

Adopted by the Minnesota Pollution Control Agency in 2021, the standards took a new approach to Minnesota’s seven designated uses of state waters.

MPCA redesignated Minnesota’s four prior subclasses of industrial consumption into a single classification. It also replaced quantitative requirements for the different subclasses with a single standard, which requires that waters be “such as to permit their use for industrial purposes to avoid severe fouling, corrosion, or scaling.”

The new standards took a similar approach to numeric criteria for waters designated for agriculture and wildlife use, including for wild rice. Numeric criteria that established limits for various pollutants found in agricultural runoff were similarly replaced in favor of narrative criteria. 

Specific numeric and narrative criteria protecting wild rice were undisturbed in the 2021 revisions, as were criteria protecting aquatic wildlife and recreational use.

Regardless, the Grand Portage and Fond du Lac Bands of Lake Superior Chippewa sued the EPA in a 2022, arguing that state’s abandonment of broader quantitative limits on agricultural and industrial pollution threatened waters used by the tribes. 

“Industrial pollution can destroy or significantly degrade wetlands, adversely affecting downstream waters by altering or eliminating habitat for aquatic life and wildlife,” the Bands wrote at the time.

That damage, they added, threatened rights they retained to fish and harvest wild rice on lands they ceded to the United States in mid-19th century treaties. They were joined by several other Minnesota bands and tribes as amici.

The EPA and MPCA acknowledged those concerns but argued that the standards directly protecting aquatic life and wild rice were still in place and would still protect those waters as stringently as before.

In a memorandum supporting its motion for summary judgment, the EPA argued the changes were supported by “current sound scientific knowledge regarding industrial water quality requirements." It said the state’s prior restrictions on chlorides, hardness and pH levels were outdated and indefensible under current science.

“The Court should defer to EPA’s rational technical judgments, which are supported by the record," the agency argued in court filings. In the end, Tunheim reluctantly agreed.

“MPCA determined based on technical literature and industry surveys that statewide numeric criteria for chlorides, hardness, and pH to protect industrial consumption uses were no longer necessary given the variability of water treatment needs across industrial appropriators,” he wrote. “While numeric criteria are generally preferred, a state is not required to establish statewide numeric criteria when they would not be scientifically sound, as EPA concluded here.”

The Bands had also raised concerns about the state’s ability to implement and enforce its standards, particularly for salt. Tunheim said he sympathized with these concerns but ultimately could take no action on them.

“The lack of numeric criteria and difficulties in deriving effluent limits for permits to enforce narrative criteria are deeply alarming, especially when considering the threat that over-polluting has on Minnesota waters,” he wrote. “However, EPA determined that despite the State’s implementation struggles, Minnesota’s implementation plans to ensure that its existing narrative and biological criteria … were sufficient.” 

“The Court cannot overturn EPA’s conclusion that current science does not define appropriate numeric limits for the salt pollutants and thus provides no alternative to narrative standards," Tunheim wrote.

Attorneys for the Bands did not respond to requests for comment on Friday afternoon. An MPCA representative said the agency had not yet had a chance to review Tunheim’s decision. 

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit