A18-2095 A18-2159 A18-2163

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-2094
A18-2095
A18-2159
A18-2163

In the matter of the reissuance of an NPDES/SDS Permit to United States Steel
Corporation (U.S. Steel) for its Minntac facility and response to Contested Case
Hearing requests filed by U.S. Steel and the Minnesota Center for
Environmental Advocacy (“MCEA”)

And

In the matter of the Application for Variance from Water Quality Standards in the
proposed NPDES/SDS permit, MPCA’s Preliminary Determination to Deny the Variance
Request and U.S. Steel’s Contested Case Hearing request on the Variance denial.

Filed December 9, 2019
Reversed and remanded
Cochran, Judge

Minnesota Pollution Control Agency

William P. Hefner, Jeremy P. Greenhouse, The Environmental Law Group, Ltd., Mendota
Heights, Minnesota (for relator/respondent United States Steel Corporation)

Paula Goodman Maccabee, Just Change La w Offices, St. Paul, Minnesota (for
relator/respondent WaterLegacy)

Sara K. Van Norman, Van Norman Law, PLLC, Minneapolis, Minnesota; and

Sean Copeland, General Counsel, Seth J. Bichler, Staff Attorney, FDL Band Legal
Department, Cloquet, Minnesota (for relator/ respondent Fond du Lac Band of Lake
Superior Chippewa)

Keith Ellison, Attorney General, Stacey W. Person, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota Pollution Control Agency)

Carolyn L. McIntosh (pro hac vice), S quire Patton Boggs (US) LLP, Denver,
Colorado; and

2
Dara D. Mann, Squire Patton Boggs (US) LL P, Atlanta, Georgia (for amicus curiae Iron
Mining Association of Minnesota)

Kevin Reuther, St. Paul, Minnesota (for amicus curiae Minnesota Center for
Environmental Advocacy)

Jeffrey K. Holth, Joseph F. Ha lloran, Mark A. Anderson, Michael L. Murphy, Barbara
Cole, The Jacobson Law Group, St. Paul, Minne sota (for amici curiae the Grand Portage
Band of Lake Superior Chippewa, the Bois Forte Band of Chippewa, the Bad River Band
of the Lake Superior Tribe of Chippewa, the Mille Lacs Band of Ojibwe, the Lac Courte
Oreilles Band of Lake Superior Chippewa I ndians, the Lac du Flambeau Band of Lake
Superior Chippewa Indians, the Lac Vieux Desert Band of Lake Superior Chippewa
Indians, and the 1854 Treaty Authority); and

Jason Kekek Stark, Hayward, Wisconsin (for amicus curiae the Lac Courte Oreilles Band
of Lake Superior Chippewa Indians); and

Andrew Adams III, HOGAN ADAMS PLLC, St. Pa ul, Minnesota (for amicus curiae the
Lac du Flambeau Band of Lake Superior Chippewa Indians)

Considered and decided by Cochran, Presiding Judge; Connolly, Judge; and
Johnson, Judge.
S Y L L A B U S
1. We accord deference to the conclu sion of the Minnesota Pollution Control
Agency (MPCA) that the federal Clean Water Act (CWA) does not go vern discharges of
pollutants to groundwater because the releva nt statutory language is ambiguous and
because (a) the MPCA is responsible for ad ministering and enforcing the CWA, (b) the
subject matter of the statute falls within the MPCA’s areas of expertise, and (c) the MPCA’s
interpretation is reasonable under the circumstances of this case.
2. Under the plain language of the ad ministrative rules comprising the state’s
water-quality standards, the standards for cla ss 1 waters provided in Minn. R. 7050.0221

3
(2017) do not apply to groundwater because groundwater has not been classified as a
class 1 water.
O P I N I O N
COCHRAN, Judge
These consolidated certiorari appeals are taken from a November 30, 2018 decision
by respondent Minnesota Pollution Control Agency (MPCA) reissuing a National Pollutant
Discharge Elimination System/State Dispos al System (NPDES/SDS ) permit to United
States Steel Corporation (U.S . Steel). The permit governs discharges of pollutants to
surface waters and groundwater from a tailings basin at U.S. Steel’s Minntac ore processing
operation.
U.S. Steel challenges the groundwater co nditions of the permit and the MPCA’s
denial of its requests for a permit-related contested-case hearing and a variance from
groundwater-quality standards. WaterLegacy and Fond du Lac Band of Lake Superior
Chippewa (the band) argue that the MPCA er red in interpreting the federal Clean Water
Act (CWA) and that the permit is not sufficiently protective of area surface waters.
We accord deference to the MPCA’s re asonable interpretation of ambiguous
provisions of the CWA and conclude that the MPCA did not err in determining that the act
does not govern discharges of pollutants to groundwater. But we conclude that the MPCA
erred in interpreting the state administrativ e rules governing water-quality standards by
applying the class 1 water- quality standards to groundwat er in determining permit
conditions. We further conclude that the MPCA’s determination that water-quality-based
effluent limits are not required for surface discharges under the CWA is unsupported by

4
substantial evidence. Accordingly, we reverse the decision issuing the permit and remand
for further proceedings consistent with this decision.
FACTS
The Minntac Tailings Basin
U.S. Steel operates the Minntac ore processing facility in the city of Mountain Iron
in St. Louis County. The fac ility includes an unlin ed tailings basin, which has been in
operation since approximately 1967. The basin was built on the Laurentian Divide and the
headwaters of two rivers: the Dark River, which flows to the we st, and the Sand River,
which flows to the east. The basin covers approximately 8,700 acres (13.6 square miles).
The basin is surrounded by a perimeter dike, made of tailings, that runs along the northern,
eastern, and western sides of the basin over a length of 9.1 miles. The southern side of the
basin is an existing bedrock high, meaning that the natural ground is higher than the tailings
basin.
In addition to tailings, the basin receive s wastewater and runoff from the Minntac
facility. Water from the basin is recycled for use in taconite processing and returned to the
basin, which has caused increasing levels of pollutants in the basin. Water from the basin
seeps into area groundwater and surface waters, and ha s caused exceedances of
water-quality standards in area surface waters. Of particular concern and at the heart of this
appeal are the sulfate levels in area waters.

5
Permitting History
The first NPDES/SDS permit for the basin was issued by the MPCA in 1987.1 The
permit authorized discharges to groundwater, the Dark River, and the Sand River to Little
Sandy Lake and Sandy Lake. The permit recognized two of the largest seepage points from
the basin as outfall 020 on the west toe of the basin and outfall 030 on the east toe. The
locations of these outfalls are now the locati ons of surface-discharg e-monitoring stations
SD001 and SD002, respectively. The 1987 permit included some effluent limits—
restrictions on the amount of particular pol lutants that may be discharged—but required
only monitoring and study requirements for sulfate. The 1987 permit expired by its terms
on July 31, 1992, but the tailings basin continued operations under the 1987 permit, pursuant
to Minn. R. 7001.0160 (2017), until a new permit was issued in 2018.
In August 2000, the MPCA issued a letter of warning to U.S. Steel, expressing its
“concern[] about the existing high sulfate concentrations in the drainage from the Minntac
tailings basin” and noting that “[s]ulfate has been identified as a pollutant of concern at the
tailings basin since at least 1987.” The letter alleged an exceedance, in area surface waters,
of the 10 milligram per liter (m g/L) sulfate limit in Minn. R. 7050.0224, subp. 2 (2017),
which is known as the wild rice rule. Th e MPCA acknowledged that U.S. Steel had
requested the MPCA to reevaluate the sulfate limit, but explained that if U.S. Steel wanted

1 The 1987 permit was issued to USS, a division of USX Corporation. Although the parties
do not explain the corporate name changes or succession, there does not appear to be any
dispute that U.S. Steel ultimately was the permittee under the 1987 permit.

6
immediate relief, it would need to seek a variance. In April 2001, U.S. Steel submitted an
application for a variance from certain water-quality standards, including the wild rice rule.
Thereafter, the MPCA and U.S. Steel ente red into a series of schedules of
compliance that variously required U.S. St eel to study the sulfate issue and pursue
technologies to reduce the sulfate discharged from the basin. U.S. Steel studied and
rejected, with the MPCA’s approval, a number of technologies before deciding to pursue a
seep-collection-and-return technology. Pursuant to a 2007 schedule of compliance and a
2010 amendment to the 1987 permit, U.S. Stee l constructed a seep-collection-and-return
system (SCRS) on the Sand River side of th e basin. The SCRS is designed to capture
seepage and return it to the basin. The SCRS spans approximately 1¾ miles and consists
of catch basins at 13 identified seepage locations, sheet-pile cut-off walls downgradient of
each catch basin, underground piping, and two pump stations.
In June 2011, U.S. Steel and the MPCA executed the final schedule of compliance
under the 1987 permit. The 2011 schedule of compliance required U.S. Steel to monitor
seepage on the Dark River side of the basin; to study and report on the feasibility of a Dark
River SCRS; and, if determined feasible, to build a Dark River SCRS.
In February 2013, U.S. Steel and the MP CA executed an amendment to the 2011
schedule of compliance. The 2013 ame ndment added alleged violations of
groundwater-quality standards, citing Minn. R. 7060.0400 (2017) and 7050.0221 as setting
a 250 mg/L sulfate limit for groundwater. The 2013 amendment required U.S. Steel to
submit a groundwater-sulfate-reduction plan.

7
In December 2014, the MPCA issued a pre-public-notice draft of a reissued permit
for the Minntac facility. After receiving co mments from U.S. Steel, WaterLegacy, the
band, and other noticed entities, and after m odifying the draft permit, the MPCA noticed
the draft permit for public co mment in November 2016. In December 2016, U.S. Steel
submitted an application for a variance from certain water-quality standards, and a request
for a contested-case hearing on the permit. 2 On November 30, 2018, the MPCA released
its decision reissuing the permit (hereinafter the permit or 2018 permit) and denying U.S.
Steel’s requests for a variance and a permit-related contested-case hearing.
The 2018 Permit
The 2018 permit distinguishes between “s urface seepage,” which “emerges either
from the side of the basin dam, or within the vicin ity of the toe of th e dam, that creates
surface flow or ponded features that would not exist in the ab sence of the tailings basin,”
and “deep seepage,” which “enters the underlyi ng surficial aquifer throughout the area of
the basin and does not discharge[] to the ground surface adjacent to its source.” Surface
seepage is regulated under the federal NPDES portion of the permit, and deep seepage is
regulated under the state SDS portion of the permit.
The NPDES portion of the permit authorizes discharges to the Dark River and
unnamed wetland tributaries, to the Timber Creek and unnamed wetland tributaries, and to
unnamed wetlands north of the basin. The permit does not authorize discharges to the east,
based on the MPCA’s finding that the Sand River SCRS has eliminated surface discharges

2 U.S. Steel also unsuccessfully sought a variance-related contested-case hearing, but does
not challenge the denial of that hearing request on appeal.

8
on the east side of the basin. Discharges to the Dark River are au thorized subject to a
schedule of compliance requiring U.S. Steel, within 18 months of permit issuance, to build
and put into operation the Dark River SCRS to eliminate discharges on the west side of the
basin.
The SDS portion of the permit includes groundwater conditions derived from a
250 mg/L sulfate standard for class 1 wa ters, based on the MPCA’s position that all
groundwater in the state is class 1 water subjec t to the standards of Minn. R. 7050.0221.
Based on the class 1 sulfate standard, the permit requires that U.S. Steel reduce the sulfate
level in groundwater at the property boundary to 250 mg/L by December 31, 2025, and the
in-basin sulfate level to 357 mg/L by December 1, 2028. The permit also includes interim
study and reporting requirements in relation to reducing sulfate in the basin, and requires
U.S. Steel to begin construction on a se lected sulfate-reduction technology within
54 months of permit issuance. And the permit requires continued monitoring of the basin
and area groundwater and surface waters by U.S. Steel.
These Appeals
U.S. Steel filed certiorari appeals cha llenging the groundwater conditions in the
permit and the denial of a permit-related contested-case hearing (A18-2094), and the denial
of its request for a variance from groundwater-quality standards (A18-2095). WaterLegacy
(A18-2159) and the band (A19-2163) filed se parate appeals challenging the MPCA’s
determination that the CWA does not regulate discharges from the basin to groundwater
and challenging the surface-water conditions in the permit. This court consolidated all four
appeals.

9
ISSUES
I. Did the MPCA err by concluding that the CWA does not govern discharges
of pollutants to groundwater?
II. Did the MPCA err by applying the class 1 water-quality standards to
groundwater in determining permit conditions?
III. Does substantial evidence sup port the MPCA’s de termination that
water-quality-based effluent limits for discharges to surface waters are not required in the
permit?
IV. Did the MPCA err by failing to include permit conditions relating to
Minnesota’s wild rice rule?
ANALYSIS
Under the CWA and the State Water Pollution Control Act (WPCA), Minn.
Stat. §§ 115.01-.09 (2018 & Supp. 2019), the MPCA is afford ed broad power and
responsibility to protect waters in this state, including the authority to issue NPDES and
SDS permits. See 33 U.S.C. § 1342(b) (2012)3; Minn. Stat. § 115.03, subds. 1, 5(a).4 As

3 In 2019, Congress passed the Water Infrastru cture Improvement Act, Pub. L. 115-436,
132 Stat. 5558-62 (2019), which added subdivisions to 33 U.S.C. §§ 1342 and 1362 (2012).
These amendments are not relevant to the issues on appeal.
4 As is explained further in section I below, an NPDES permit is required under federal law
for discharges of pollutant s to navigable waters. See 33 U.S.C. § 1311 (2012), 1342(a).
An SDS permit is required under state law for a “system of disposing of sewage, industrial
waste and other wastes.” Minn. Stat. §§ 115.01, .03 (2018 & 2019 Supp.). Facilities like
Minntac’s tailings basin that both discharge po llutants to navigable waters and constitute
disposal systems obtain a combined NPDES/SDS permit from the MPCA. See Minn. R.
7001.1010 (2017) (provi ding that issuance of NPDES permit satisfies requirements to
obtain SDS permit).

10
required by the CWA, the MPCA has adopted water-quality standards. See 33
U.S.C. § 1313(a) (2012) (requiring states to adopt water-quality standards); Minn.
Stat. § 115.03, subd. 5 (granting the MPCA th e authority to adopt st andards for purposes
of the state’s participation in the NPDES pr ogram); Minn. Stat. § 11 5.44, subd. 2 (2018)
(directing MPCA to adopt wa ter-quality standards); Minn . R. 7050.0110 -.0470 (2017)
(providing water-quality standards for “water s of the state”), 7060.0100-.0900 (2017)
(providing water-quality standard s for “underground waters”). 5 NPDES/SDS permits
issued by the MPCA must in clude conditions sufficient to ensure compliance with
water-quality standards. See 40 C.F.R. § 122.44(d)(1) (2019); Minn. R. 7001.0140 (2017).
The MPCA’s decisions are subject to judicial review under Minn. Stat. §§ 14.63-.69
(2018). Minn. Stat. § 115.05, subd. 11. In reviewing an agency decision under Minn.
Stat § 14.69, this court may affirm or rema nd for further proceedings, or we may reverse
or modify the agency’s decision if we de termine that it is unsup ported by substantial
evidence, arbitrary or capricious, or affected by error of law. Minn. Stat. § 14.69; see also
In re City of Owatonna’s NPDES/SDS Prop osed Permit Reissuance for Discharge of
Treated Wastewater, 672 N.W.2d 921, 926 (Minn. A pp. 2004) (discussing standard of
review). “[D]ecisions of administrative agencies enjoy a presumption of correctness, and
deference should be shown by courts to the agencies’ expertise and their special knowledge
in the field of their technical trai ning, education, and experience.” In re Excess Surplus

5 Separate water-quality sta ndards governing the Lake Superi or basin are set forth in
7052.0005-.0380 (2017); these standards are not at issue in this case.

11
Status of Blue Cross & Blue Shield of Minn., 624 N.W.2d 264, 278 (Minn. 2001) (quotation
omitted).
I.
We first address an argument by WaterLeg acy and the band that the MPCA erred
in interpreting the CWA. Wa terLegacy and the band asse rt that the MPCA erred by
concluding that the CWA does not apply to discharges from the basin into groundwater
(so-called deep seepage), even though the groundwater is hydrologically connected to area
surface waters that are “navigable waters” cove red by the act. The MPCA contends that
the CWA does not extend to discharges to groundwater—even groundwater that is
hydrologically connected to navigable wate rs—and that its decision to regulate deep
seepage under the SDS portion of the permit rather than the NPDES portion of the permit
is consistent with both federal and state law. U.S. Steel supports the MPCA’s decision to
regulate discharges to groundwater only under the state’s SDS permitting program.
The legal issue of whether the CWA app lies to discharges conveyed by groundwater
to navigable waters has been a subject of disagreement among the federal courts of appeals
and is expected to be decided by the United States Supreme Court during its current term.
Compare Hawai‘i Wildlife F und v. County of Maui , 881 F.3d 754, 765 (9th Cir. 2018)
(holding that discharges to groundwater may be covered by CWA if “fairly traceable from
the point source to a navigable water”), cert. granted sub. nom. County of Maui v. Hawaii
Wildlife Fund, 139 S. Ct. 1164 (2019), and Upstate Forever v. Kinder Morgan Energy
Partners, L.P., 887 F.3d 637, 651 (4th Cir. 2018) (holding that discharges to groundwater
are within the scope of the CWA where discharges are “sufficiently connected to navigable

12
waters” and adopting hydrological conn ection theory developed by the EPA), with Ky.
Waterways All. v. Ky. Utils. Co., 905 F.3d 925, 934 (6th Cir. 2018) (holding that discharges
to groundwater are not covered by CWA and rejecting hydrological connection theory),
and Village of Oconomowoc Lake v. Dayton Hudson Corp. , 24 F.3d 962, 965
(7th Cir. 1994) (same). This court is bound by decisions of the United
States Supreme Court and the Minnesota Su preme Court, but it is not bound by other
federal courts’ opinions, even when interpreting federal statutes. Citizens for a Balanced
City v. Plymouth Congregational Church, 672 N.W.2d 13, 20 (Minn. App. 2003). Because
the United States Supreme Court has not yet decided County of Maui, and our state supreme
court has not addressed the issue of whether discharges to groundwater are covered by the
CWA, the issue is subject to our de novo determination. Id. at 19-20; see also In re Gillette
Children’s Specia lty Healthcare , 883 N.W.2d 778, 784 (Minn. 2016) (“We review an
administrative agency’s interpretation of federal statutes de novo.”).
The dispute over whether the CWA applies to discharges of pollutants that reach
navigable waters only after tr avelling through groundwater centers on the language of
certain provisions of the CWA. The CWA generally prohibits the “discharge of any
pollutant” without an NPDES permit. See 33 U.S.C. §§ 1311(a) (general prohibition),
1342(a)(1) (providing exception for discharges pursuant to a permit). The “discharge of a
pollutant” is defined to mean, as relevant here, “any addition of any pollutant to navigable
waters from any point source.” 33 U.S.C. § 1362(12) (emphasis added). 6 “[N]avigable

6 The MPCA’s permit decision and responses to comments suggest that there is a legal
question not only as to whether discharges to groundwater that travel to navigable waters

13
waters” are defined as “waters of the United States,” id. (7), which in turn are broadly
defined to include most surface waters, 40 C.F.R. § 122.2 (2019). The regulatory definition
of “waters of the United States” does not include groundwater, see id.,7 and it is generally
agreed that groundwaters are not navigable waters. See Rice v. Harken Expl. Co., 250 F.3d
264, 269 (5th Cir. 2001); Village of Oconomowoc Lake, 24 F.3d at 965; see also Hawai‘i
Wildlife Fund, 886 F.3d at 746 n.2 (assuming without deciding that groundwater is neither

are covered by the CWA but also as to whether the tailings basin is a “point source” within
the meaning of the CWA. U.S. Steel argues on appeal that the tailings basin is not a point
source. Because we conclude that the CWA does not apply to discharges of pollutants to
groundwater that is hydrologically connected to navigable waters, we do not need to reach
the issue of whether the tailings basin is a point source. We note, however, that the MPCA
has treated the tailings basin as a point source for the purpose of regulating surface seepages
under the NPDES portion of the permit.
7 In 2015, the Department of Defense and the Environmental Protection Agency adopted
amendments to the definition of “waters of the United States” that expressly exclude
groundwater. See 80 Fed. Reg. 37054, 37114 (June 29, 2015) (the 2015 rule). A number
of states, not including Minnesota, brought ac tions in federal district courts successfully
asserting the invalidity of the 2015 rule. See Georgia v. Wheeler, No. 2:15-cv-00079, 2019
WL 3949922, at *32 (S.D. Ga. Aug. 21, 2019) (granting summary judgment, continuing
preliminary injunctive relie f, and remanding to agency for further proceedings);
Texas v. United States Envtl. Prot. Agency , 389 F. Supp. 3d 497, 506 (S.D. Tex. 2019)
(same); North Dakota v. United States Envtl. Prot. Agency , 127 F. Supp. 3d 1047, 1060
(D.N.D. 2015) (granting preliminary injunctive relief). In response, the federal agencies
unsuccessfully sought to add a delayed effective date to the 2015 rule. See 83 Fed. Reg.
5200 (Feb. 6, 2018) (adopting applicability-date rule); Puget Soundkeeper All. v. Wheeler,
No. C15-1342-JCC, 2018 WL 6169196, at *7 (W.D. Wash . Nov. 26, 2018) (vacating
applicability-date rule); S.C. Coastal Conservation League v. Pruitt, 318 F. Supp. 3d 959,
969-70 (D.S.C. 2018) (granti ng nationwide injunction agains t applicability-date rule).
Because Minnesota was not a party to any of the federal actions challenging the 2015 rule,
it appears that the 2 015 rule is effective in Minnesota. See Laura Gatz, Cong. Research
Serv., R45424, “Waters of the United States” (WOTUS): Current Status of the 2015 Clean
Water Rule (Dec. 12, 2018), https://crs reports.congress.gov/product/pdf/R/R45424
(explaining that the 2015 rule is in effect in 22 states, including Minnesota, and enjoined
in 28 states). We need not decide this issue, however, be cause there is no dispute that—
whether simply omitted or expressly excluded—groundwaters are not waters of the United
States.

14
a point source nor navigable water under th e CWA). But dispute has developed over
whether there is a “discharge of a pollutant” when pollutants are released from a point
source and travel through groundwater before reaching na vigable waters. See Ky.
Waterways, 905 F.3d at 933 (describing disagreement among federal courts of appeals).
We begin our statutory anal ysis by determining whether the statutory language at
issue has plain meaning or is ambiguous. See In re Cities of A nnandale & Maple Lake
NPDES/SDS Permit Issuance for Discharge of Treated Wastewater, 731 N.W.2d 502, 516
(Minn. 2007) ( Annandale). Although we generally accord deference to decisions of
administrative agencies, we will not defer to an agency’s interpre tation of unambiguous
statutes and administrative rules. Id. But if a statute or rule is ambiguous, we may accord
deference to the reasonable in terpretation by an agency charged with administering the
statute or rule. Id.; see also A.A.A. v. Minn. Dep’t of Human Servs., 832 N.W.2d 816, 822
(Minn. 2013) (identifying agency interpretation as one appropriate factor to consider in
interpreting ambiguous statute); Greene v. Comm’r of Minn. Dep’t of Human Servs. ,
755 N.W.2d 713, 722 (Minn. 2008); cf. Minn. Stat. § 645.16 (2018) (providing that court
may consider administrative interpretations of ambiguous statutes).
We conclude that the statutory definition of “discharge of a pollutant” is ambiguous
because it is subject to more than one reason able interpretation, as evidenced by the split
among the federal courts of appeals. See Walgreens Specialty Pharmacy, LLC v. Comm’r
of Revenue, 916 N.W.2d 529, 533 (Minn. 2018) (“A statute is ambiguous if it is susceptible
to more than one reasonable interpretation.” (quotation omitted)).

15
Under one reasonable interpretation, discharges from a point source to
hydrologically connected groundwater ar e governed by the CWA because they are
discharges from a point source and to a navigable water, and there is no language in the
statute requiring a direct connection between a point source and a navigable water. See
Upstate Forever, 887 F.3d at 650 (holding that plai n language of CWA does not require
discharge directly into wate rs of the United States); cf. Rapanos v. United States ,
547 U.S. 715, 743, 126 S. Ct . 2208, 2227 (2006) (“The Ac t does not forbid the ‘addition
of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition
of any pollutant to navigable waters.’” (quoting 33 U.S.C. § 1362(12)(A)).8
Under a second reasonable interpretati on, discharges from a point source to
hydrologically connected groundwater are not governed by the CWA because the CWA

8 Courts adopting this first reasonable inte rpretation have relied on the above-quoted
statement by Justice Scalia, writing for a plurality of the Supreme Court in Rapanos,
547 U.S. at 743, 126 S. Ct. at 2227. In Rapanos, the Court addressed a challenge to an
EPA enforcement action based on an indivi dual’s failure to obtain a permit under
33 U.S.C. § 1344 before backfilling wetlands. 547 U.S. at 719-23, 126 S. Ct. at 2214-16.
A plurality of the Court held that the permitting requirements of section 1344 do not extend
to wetlands connected to navigable waters only by transitory puddles or ephemeral flows
of water. Id. at 739, 126 S. Ct. at 2225. In addressing arguments that the plurality’s holding
would adversely impact permitting under 33 U.S.C. § 1342 (the NPDES program),
Justice Scalia wrote: “The Act does not forbid the ‘addition of any pollutant directly to
navigable waters from any point source,’ but rather the ‘addition of any pollutant to
navigable waters.’” Id. at 743, 126 S. Ct. at 2227 (q uoting 33 U.S.C. § 1362(12)(A)). In
other words, Justice Scalia recognized that courts have upheld the regulation of discharges
of pollutants that flow through multiple point sources. Id. at 742-45, 126 S. Ct. at 2227-28.
The Rapanos case did not address whether discharges to groundwater are covered by the
CWA. Thus, although we cite Justice Sca lia’s analysis as s upporting one reasonable
interpretation of the language at issue in this case, we do not believe that Rapanos is
dispositive of the issue here. See, e.g., Ky. Waterways, 905 F.3d at 935-36 (distinguishing
Rapanos).

16
“addresses only pollutants that are added ‘ to navigable waters from any point source.’”
Ky. Waterways, 905 F.3d at 934 (quoting 33 U.S.C. § 1362(12)(A)); see also id. (noting
that “effluent limitations,” which are the “heart of the CWA’s regulatory power,” are
“restrictions on the amount of pollutants th at may be ‘discharged from point sources into
navigable waters,’” and that “[t]he term ‘int o’ indicates directness” and “leaves no room
for intermediary mediums to carry the pollutants” (quoting 33 U.S.C. § 1362(11) (2012));
Village of Oconomowoc Lake, 24 F.3d at 965 (“Neither the Clean Water Act nor the EPA’s
definition asserts authority over ground waters, just becaus e these may be hydrologically
connected with surface waters.”).
Having concluded that “discharge of a po llutant” is ambiguous, we must determine
whether to accord deference to the MPCA’s interpretation that the language does not
encompass discharges to groundwater, rega rdless of any hydrological connection to
surface waters. See In re Alexandria Lake Area Sanitary Dist. NPDES/SDS Permit ,
763 N.W.2d 303, 312-13 (Minn. 2009); Annandale, 731 N.W.2d at 516. We conclude that
deference is warranted because (1) the MP CA is responsible for administering and
enforcing the CWA, (2) the subject matter of the statute falls within the MPCA’s areas of
expertise, and (3) the MPCA’s interpretation is reasonable under the circumstances of this
case. See Alexandria, 763 N.W.2d at 313 (listing factors for consideration in determining
level of deference afforded); see also Greene , 755 N.W.2d at 722 (recognizing that
deference to an agency’s inte rpretation of a statute that it administers is appropriate in
complex regulatory areas). The reasonableness of the MPCA’s interpretation is evidenced
not only by the decisions of federal courts th at have adopted it, but also by the MPCA’s

17
own analysis in the record. As the MPCA explained, the regulatory framework established
by the CWA relies principally on effluent limits at the point of discharge and that regulatory
framework has no reasonable application to groundwater discharges, which are diffuse by
nature. It is therefore appropriate to accord deference to the MPCA’s interpretation.
In addition to according deference, we obs erve that the MPCA’s interpretation is
consistent with the statutory framework and with the legislative history of the CWA. With
respect to statutory framework, we note that there are express references to groundwater in
other provisions of the CWA, which makes telling the omission of such a reference from
the statutory provisions governing NPDES permits. See Exxon Corp. v. Train ,
554 F.2d 1310, 1322 (5th Cir. 1977) (explaining that prov isions of CWA addressing
groundwater evidence a “pattern . . . of federal informat ion gathering and encouragement
of state efforts to control gr oundwater pollution—but not of direct federal control over
groundwater pollution”); Umatilla Waterquality Protective A ss’n, Inc. v. Smith Frozen
Foods, Inc., 962 F. Supp. 1312, 1318 (D. Or. 1997) (noting that “when Congress wanted
certain provisions of the CWA to apply to groundwater, it stated so explicitly” and that
“section 1342, which establis hes the NPDES permitting system, makes no reference to
groundwater”). And with respec t to the legislative history, we note that although an
amendment was offered to extend the CWA’s coverage to groundwater, that amendment
was rejected. See Exxon, 554 F.2d at 1325-29 (detailing le gislative history). We agree
with courts that have concluded that this legislative history evidences congressional intent
that the CWA “would leave cont rol of groundwater pollution ex clusively to the states.”
Exxon, 554 F.2d at 1329; see also Umatilla , 962 F. Supp. at 1318 (“[T]he CWA’s

18
legislative history suggests that Congress di d not intend to regulate groundwater in any
form.”)
For these reasons, we conclude that the MPCA did not err in interpreting the term
“discharge of a pollutant,” a nd we therefore reject WaterLeg acy and the band’s assertion
that the MPCA erred by not regulating discharges from the basin to groundwater, so-called
deep seepage, under the NPDES portion of the permit.
II.
We next turn to U.S. Steel’s argument th at the MPCA erred in setting conditions
related to groundwater quality in the SDS portion of the permit, specifically that U.S. Steel
reduce the sulfate level in groundwater at the property boundary to 25 0 mg/L by
December 31, 2025, and the in-b asin sulfate level to 357 mg/L by December 1, 2028.
These limits are designed to meet the EPA’s secondary drinking water standards for sulfate
and total dissolved solids (the secondary standards). U.S. Steel argues that groundwater is
not subject to the secondary standards because groundwater is governed by chapter 7060
of the Minnesota Rules, Minn. R. 7060.01 00-.0900, which does not require compliance
with the secondary standards. The MPCA counters that chap ter 7060 must be read in
conjunction with chapter 7050, Minn. R. 7050.0110-.0470, and that, read together, the rules
plainly designate all groundwa ter as class 1 waters, which are subject to the secondary
standards under Minn. R. 7050.0221, subp. 1. The MPCA alternatively argues that, if the
rules are ambiguous, this court should defer to its reasonable interpretation of them.
The parties’ dispute in this regard requires us to interpret and apply the state’s
water-quality standards. We must first determine whether the regulatory language is plain

19
or ambiguous. Annandale, 731 N.W.2d at 516. We begin that ta sk by reviewing the
regulatory framework of chapters 7050 (water s of the state) and 7060 (underground
waters). See Alexandria, 763 N.W.2d at 310-11 (noting th at, in determining existence of
ambiguity, words and phrases should not be read in isolation, but rather in context of
regulation as a whole). These regulations we re adopted pursuant to requirements of the
CWA and the WPCA. See 33 U.S.C. § 1313 (requiring water-quality standards); Minn.
Stat. § 115.44, subd. 2 (directing MPCA to “gr oup the designated waters of the state into
classes, and adopt classifications and standards of purity and quality therefor”).
Chapter 7050 begins with a section on sc ope, providing that it “appl[ies] to all
waters of the state, both surface and underground.” Minn. R. 7050.0110. The chapter next
defines several classifications for waters of the state—classes 1 through 7, and numerous
subclasses—based on best use and need, and it provides standards for each of the classes.
Minn. R. 7050.0140, .0221-.0227. Most relevant in this case, Minn. R. 7050.0140, subp. 2,
defines class 1 waters for use for “domestic consumption” and specifies that “[d]omestic
consumption includes all waters of the state that are or may be used as a source of supply
for drinking, culinary or food processing us e.” And Minn. R. 70 50.0221, subp. 1(B)
provides that the class 1 water-quality sta ndards are the federal primary and secondary
drinking-water standards. The parties agree that the secondary drinking-water standards
include a 250 mg/L limit for sulfate.
Chapter 7050 finally “classif[ies] all surface waters within or bordering Minnesota
and designate[s] the beneficial uses for which th[ose] waters are protected.” Minn. R.
7050.0110; see also Minn. R. 7050.0400-.0 470 (making such cl assifications). The

20
classification is made either by individual name or by category. For example, Lake
Vermillion is classified as a class 1C, 2B d, and 3C water. Mi nn. R. 7050.0470,
subp. 2(B)(96). Wetlands, as defined in Minn. R. 7050.0186, subp. 1a(B), that are not
individually listed are classified as class 2D, 3D, 4C, 5, and 6 waters. Minn. R. 7050.0425.
And a catch-all provision classifies all surf ace waters not indivi dually listed and not
wetlands as class 2B, 3C, 4A, 4B, 5, and 6 waters. Minn. R. 7050.0430, subp. 1 (excepting
waters in Boundary Waters Canoe Area Wild erness and Voyageurs National Park, which
are addressed in subparts 2 and 3 of the same rule).
Chapter 7050 does not assign a clas sification to groundwater. The only
classification of groundwater is made in chapter 7060, by Minn. R. 7060.0400. That rule
provides that “all underground waters are best classified for use as potable water supply in
order to preserve high quality waters by minimizing spreading of pollutants, by prohibiting
further discharges of wastes thereto, a nd to maximize the possi bility of rehabilitating
degraded waters for their priority use.” Minn. R. 7060.0400. Chapter 7060 also includes
a nondegradation policy and standards a pplicable to groundwater. Minn. R.
7060.0500-.0600.
In summary, chapter 7050 does not includ e any language classifying groundwater
as a class 1 water. Part 7050.0140 defines classes 1 through 7, and parts 7050.0221-.0227
set forth water-quality standards applicable to each class. Finally, the classification of
specific waters “are listed in parts 7050.0400 to 7050.0470.” Minn. R. 7050.0140, subp. 1.
Those classifications only apply to surface waters, not to groundwater. Minn. R.

21
7050.0110, .0400-.0470. As noted above, the only classification of groundwater is found
in chapter 7060.
Despite the absence of any language in chapter 7050 classifying groundwater as a
class 1 water, the MPCA contends that chapte r 7060’s classification of groundwater “for
use as potable water supply” compels the conclusion that all groundwater is classified as a
class 1 water under chapter 7050. The argum ent is based primarily on comparisons that
the MPCA draws between the WPCA defin ition of potable water and the regulatory
description of class 1 waters. Compare Minn. Stat. § 115.01, subd. 14 (defining “potable
water” as “water which is or may be used as a source of supply for human consumption,
including drinking, culinary use, food processing, and other similar purposes, and which is
suitable for such uses in its untreated state or when treated using generally recognized
treatment methods”), with Minn. R. 7050.0140, subp. 2 (pro viding that, for purposes of
class 1 waters, “[d]omestic consumption includes all waters of the state that are or may be
used as a source of supply for drinking, culinary or food processing use, or other domestic
purposes and for which quality control is or may be necessary to protect the public health,
safety, or welfare”). Put another way, the MP CA argues that because both class 1 waters
and groundwater are classified for consumption, groundwater is a class 1 water. But,
contrary to the MPCA’s argument, the use of distinct language generally connotes distinct
meaning. See, e.g., Nelson v. Schlener , 859 N.W.2d 288, 294 (Minn. 2015) (“When the
Legislature uses different words, we normally presume that those words have different
meanings.”). And nowhere in chapter 7060 or chapter 7050 is groundwater classified as a
class 1 water.

22
The MPCA also relies on the language in Minn. R. 7060.0200, providing that Minn.
R. 7050.0100-.0220 apply to groundwater. But Minn. R. 7050.02 21, which adopts the
secondary standards for class 1 waters, is not included in the list of rules incorporated by
reference for groundwater. And the provisions that are incorporated by reference do no
more than set forth use classi fications and standards for t hose classifications. As is
discussed above, the actual cla ssifications of particular waters are made in Minn. R.
7050.0400-.0470, and those classificati ons are limited to surface waters. 9 If the MPCA
had intended to apply the secondary standards to groundwater, it could have included Minn.
R. 7050.0221 in the list of rules incorporated by reference in Minn. R. 7060.0200. It did
not. Instead, the MPCA adopted a nond egredation policy and narrative water-quality
standards for groundwater. See Minn. R. 7060.0500-.0600.
We acknowledge that some language in chapters 7050 and 7060 seems to anticipate
the classification of some or all groundwater as a class 1 water. Fo r instance, Minn. R.
7050.0221 includes three different subclasses (1A, 1B, and 1C) of class 1 waters and
provides guidance on how groundwater should be assigned to the different subclasses. See,
e.g., Minn. R. 7050.0221, subp. 2 (providing that class 1A criteria “will ordinarily be
restricted to underground waters with a high degree of natural protection”). That rule also

9 Prior to the 1984 amendments to chapter 7050, the MPCA might have argued that it could
treat groundwater as class 1 waters, without further rulemaking, under Minn. R. 7050.0160
(1983) (providing that, until all waters were classified, MPCA would consider unclassified
state waters as waters of the highest quality consistent with their actual or potential use).
But see Minn. Stat. § 14.05 (2018) (requiring agencies to adopt rules in accordance with
administrative procedure act). In any event, the MPCA repealed rule 7050.0160 in 1984.
See 9 Minn. Reg. 913 (Oct. 29, 1984).

23
provides that certain class 1 standard s are not applicable to groundwater. See Minn. R.
7050.0221, subp. 1(B). The MPCA may well have intended to classify some or all
groundwater as class 1 water, but it points to no provision in the rules that actually makes
that classification.10 And we are not free to make th e classification under the guise of
interpreting the rules. Cf. Rohmiller v. Hart , 811 N.W.2d 585, 590 (Minn. 2012) (“We
cannot add words or meaning to a statute th at were intentionally or inadvertently
omitted.”).
We also acknowledge the parties’ various arguments about the rulemaking history.
U.S. Steel relies on a 1973 Statement on Pr oposed WPC 22, emphasizing the MPCA’s
decision not to adopt numeric criteria for gr oundwater but instead to make groundwater
subject to a nondegradation standard. Wate rLegacy and the band argue that reliance on
that document is inappropriate because th e EPA had not yet adopted the secondary
standards in 1973. Because we base our decision on the structure and language in the rules,
we need not resolve disputes over the rulemaking history. We observe, however, that the
relevant structure and language of the rules have been substantially the same since 1973,
when the MPCA promulgated separate rules classifying groundwater and surface waters.
See WPC 22 (groundwater), 24 (intrastate wa ters), 25 (interstate waters). The
contemporaneous adoption of these three separate chapters of rules, by water type, supports
our conclusion that the class 1 standards do not apply to groundwater.

10 The MPCA cites to a 2007 Statement of Need and Reasonableness (SONAR) containing
its own assertion that all grou ndwater is class 1 water. Th e SONAR, of course, is not a
rule with the force and effect of law. Cf. Minn. Stat. § 14.38, subd. 1 (2018) (providing
that properly promulgated rules have force and effect of law).

24
In sum, we conclude that chapters 70 50 and 7060 unambiguou sly do not classify
groundwater as class 1 waters and that the MPCA therefore erred by applying class 1
water-quality standards to determine groundwater conditions in the permit. Accordingly,
we reverse and remand for the MPCA to determine appropriate groundwater conditions for
the permit based on the applicable groundwater-quality standards and the nondegradation
policy that U.S. Steel acknowledges applies to discharges from the tailings basin.11 Based
on this disposition, we need not reach U.S. Steel’s alternative challenges to the MPCA’s
denials of its requests for a permit-related co ntested-case hearing and for a variance from
groundwater-quality standards.
III.
We next address arguments related to the NPDES portion of the permit.
WaterLegacy and the band argue that the MPCA erred by failing to include
water-quality-based effluent limits in the permit. The band additionally argues that several
determinations by the MPCA in relati on to the NPDES permit are unsupported by
substantial evidence. These related arguments go to the heart of the MPCA’s obligations
in administering the NPDES permitting program.
“[T]he CWA requires that all NPDES pe rmits for point sources incorporate
limitations necessary to satisfy the state’ s promulgated water quality standards.”

11 This opinion does not address or purport to restrict the MPCA’s authority to regulate
groundwater sulfate levels under any applicable provision of chapter 7060 or chapter 7053
(setting forth rules applicable to discharges to state waters). Our holding is limited to a
determination that groundwater has not been classified as a class 1 water and therefore the
standards in Minn. R. 7050.0221 are not applicable to groundwater.

25
Alexandria, 763 N.W.2d at 309; see also 40 C.F.R. § 122.44(d)(1); Minn. R. 7001.0140,
subp. 1. These limitations, cal culated with reference to th e water-quality standards of
receiving waters, are known as water-quality-based effluent limitations, or WQBELs. See
In re 401 Water Quality Certif., 822 N.W.2d 676, 685 (Minn. App. 2012). Generally, the
MPCA must include a WQBEL if it determin es that a discharge has “the reasonable
potential to cause, or contribu te to an excursion above any State water quality standard,
including State narrative criteria for water quality.” 40 C.F.R. § 122.44(d)(1)(i); see also
Minn. Ctr. for Envtl. Advo cacy v. City of Winsted , 890 N.W.2d 153, 157 (Minn.
App. 2017).
The MPCA determined that WQBELs were not required in the NPDES portion of
the permit because the Sand River SCRS has stopped all surface seepage on the east side
of the basin, and the Dark River SCRS, wh en built, will stop all surface seepage on the
west side of the basin.12 In other words, the MPCA determined that, once the Dark River
SCRS is operational, there will be no discha rges to surface waters that could cause a
reasonable potential to exceed water-quality standards necessitating WQBELs in the
NPDES permit. Thus, the MPCA’s finding that the Sand River SCRS has stopped all
discharges to the east side of the basin is central to its determination that WQBELs are not

12 T h e M P C A a l s o d e t e r m i n e d t h a t W Q B E L s were not necessary with respect to any
surface seepage to the north of the basin because there is no reasonable potential to exceed
water-quality standards in recei ving waters north of the basin. This determination is not
challenged on appeal.

26
required in the permit. The band asserts that this finding is not supported by substantial
evidence.13
“A decision is supported by substantial evidence when it is supported by (1) such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion;
(2) more than a scintilla of ev idence; (3) more th an some evidence; (4) more than any
evidence; or (5) the evidence considered in its entirety.” Minn. Ctr. for Envtl.
Advocacy v. Minn. Pollution Control Agency , 644 N.W.2d 457, 464 (Minn. 2002). Our
responsibility in determining whether there is substantial evidence to support an agency
decision is “to examine the evidence on which [the] conclusions are based and determine
whether they are well founded.” Reserve Mining Co. v. Herbst , 256 N.W.2d 808, 828
(Minn. 1977). In applying the substantial-evidence test, a reviewing court must “determine
whether the agency has adequately explaine d how it derived its conclusion and whether
that conclusion is reasonable on the basis of the record.” In re Application of Minn. Power,
838 N.W.2d 747, 757 (Minn. 2013) (quotation omitted); see also Cable Commc’ns
Bd. v. Nor-West Cable Commc’ns P’ship , 356 N.W.2d 658, 668 (Minn. 1984) (“The
substantial evidence test requires a reviewing court to evaluate the evidence relied upon by
the agency in view of the en tire record as submitted.”). “ If an administrative agency
engages in reasoned decision ma king, the court will affirm, even though it may have

13 The band also asserts that the MPCA’s statement that it has identified all known
receiving waters is unsupported by substan tial evidence because the tailings basin
continues to discharge to the Sand River. The MPCA’s determination not to identify the
Sand River as a receiving water is based on its finding that the Sand River SCRS has
eliminated all surface seepage on the east side of the basin. Thus, we focus on the issue of
whether there is substantial evidence to support that finding.

27
reached a different conclusion had it been the factfinder.” Cable Commc’ns Bd. ,
356 N.W.2d at 669. “The court will intervene, however, where there is a ‘combination of
danger signals which suggest the agency has not taken a hard look at the salient problems’
and the decision lacks ‘articulated standards and reflective findings.’” Id. (quoting Reserve
Mining, 256 N.W.2d at 825) (other quotation omitted).
In its brief, the MPCA cite s three documents in support of its assertion that “[t]he
Sand River SCRS has eliminated all surface water discharges to the Sand River Watershed
since becoming fully operational.” First, it cites a November 2011 inspection report in
which an MPCA inspector states: “There has been no discharge at SD002 after June, 2010,
when the seep collection and return system became fully operational.” Second, it cites an
April 2016 discharge monitoring report in which U.S. Steel checked a box indicating “No
Discharge/No Flow for Monito ring Period” for SD002. And third, it cites U.S. Steel’s
2011 permit application, which states that “all surface water discharges to the Sand River
watershed have been eliminat ed” by the Sand River SCRS and that “[u]pon operation of
the Dark River [SCRS], all surface water disc harges from the Minntac tailings basin will
have effectively been eliminated.”
The 2011 and 2016 inspection and monito ring reports may provide substantial
evidence that the SCRS has stopp ed flow at SD002, a monitoring station at a discrete
location on the east side of the basin. Bu t the MPCA does not explain how cessation of
flow at SD002 means that all surface seepage on the entire east side of the basin has been
eliminated, particularly given that the SCRS spans 1¾ miles and was intended to address
surface seepage at 13 distinct locations along the east side of the basin. Nor do U.S. Steel’s

28
conclusory statements in its 2011 applica tion provide any eviden tiary support for the
MPCA’s determination in 201 8 that the Sand River SCRS has eliminated surface
discharges, or that the Dark River SCRS will do so in the future.
During oral argument, the MPCA cited two additional documents, 2018 EPA and
MPCA inspection reports, which generally de scribe the operation of the SCRS. Nothing
in these reports supports the MPCA’s finding that the Sand River SCRS has eliminated all
surface seepage on the east side of the basi n. In fact, both of the reports identify
circumstances in which the SCRS has failed to capture seeps.
The band asserts that the Sand River SCRS has not entirely eliminated surface
seepage, and it cites a number of documents in the record in supp ort of this assertion. In
particular, the band relies on U.S. Steel’s 2017 Tailings Basin Status Report, which
includes a summary of an insp ection of the tailings basin pe rimeter performed by U.S.
Steel. The purpose of that inspection was, in part, to “inspect and document the condition
of any discrete surface seeps emanating fro m the tailings basin perimeter dike in
comparison to previous inspections.” Th e inspection summary includes photographs of
ponded water at various locations, including one just outside of the Sand River SCRS. The
band also relies on letters from the Great Lakes Indian Fish and Wildlife Commission that
include photos of ponded water near the basin. And the band relies on an EPA inspection
report that includes test results of water samples revealing comparably high sulfate levels
inside and outside of the SC RS. These documents cited by the band tend to suggest
continued surface seepage from th e Sand River side of the basin. The MPCA has not
explained why the documents are not evidence of surface seepage.

29
The MPCA urges this court to defer to its expertise on this issue. But deference is
warranted only where the ag ency has engaged in reasoned decision-making. Cable
Commc’ns Bd., 356 N.W.2d at 669. In this case, there is nothing in the MPCA’s order
granting the permit or the permit itself to i ndicate that the MPCA engaged in any actual
analysis of whether the Sand River SCRS ha s completely eliminated surface seepage on
the east side of the basin, such that WQB ELs are not required in the NPDES permit.
Rather, it seems to have simply ignored or overlooked eviden ce in the record that could
suggest a contrary conclusion. On this reco rd, we can only conclude that the MPCA has
failed to take the requisite “hard look” at the issue of whether WQBELs are required in the
NPDES permit, and, accordingly, we must intervene. Reserve Mining, 256 N.W.2d at 825
(quotation omitted). We reverse and remand to the MPCA for further development of the
record as warranted, for th e MPCA to make substantia ted findings regarding the
effectiveness of the Sand River SCRS, and for the MPCA to redetermine, on those
substantiated findings, whether WQBELs are required in the NPDES permit. See Minn.
Ctr. for Envtl. Advocacy v. Comm’r of Minn. Pollutio n Control Agency, 696 N.W.2d 95,
105 (Minn. App. 2005) (reversing and remanding based on agency’s failure to give more
than conclusory consideration to project alternative).14

14 Because we reverse and remand for redete rmination of the issu e of whether WQBELs
are required, we do not reach WaterLegacy’s related argument that, even assuming the
Dark River SCRS will be effective, interim WQBELs are required for the Dark River side
of the basin. We also do not reach the band’ s arguments regarding the sufficiency of the
permit’s monitoring requirements, which may be adjusted by the MPCA depending on its
redetermination of whether WQBELs are required.

30
IV.
We finally address arguments by WaterLeg acy and the band regarding the wild rice
rule. Adopted in 1973, the wild rice rule is part of Minn. R. 7050.0224, which sets forth
water-quality standards for class 4 surface waters. At issue in this case is subpart 2 of the
rule, which provides a 10 mg/L sulfate limit that is “applicable to water used for production
of wild rice during periods when the rice ma y be susceptible to damage by high sulfate
levels.” Minn. R. 7050.0224, subp. 2. Wa terLegacy and the band assert the MPCA was
required to, but did not, apply the 10mg/L sulfate limit in setting the conditions in the
permit.
The wild rice rule is a wate r-quality standard that is subject to enforcement under
the CWA, including through th e NPDES permitting program. See 33 U.S.C. § 1313;
40 C.F.R. § 122.44(d)(1). In recent years, however, the Minnesota Legislature has directed
the MPCA to limit its enforcement of the wild rice rule and ultimately to replace it.
In 2011, the legislature passed a law requi ring the MPCA to engage in study and
adopt new wild rice water-quality standards, and to limit enforcement of the existing rule
until new rules were adopted. 2011 Minn. Laws 1st Spec. Sess. ch. 2, art. 4, § 32, at 783-85.
The 2011 legislation did not include a deadline for adoption of new ru les. In 2015, the
legislature passed a law requiring the MPCA to adopt new rules by January 15, 2018, and
providing that
implementation of the wild ri ce water quality standard in
Minnesota Rules, part 7050.0224, subpart 2, shall be limited to
the following, unless the pe rmittee requests additional
conditions:

31
(1) when issuing, modifyin g, or renewing national
pollutant discharge eliminati on system (NPDES) or state
disposal system (SDS) permits, the agency shall endeavor to
protect wild rice, and in doi ng so shall be limited by the
following conditions:
(i) the agency shall not re quire permittees to expend
money for design or implemen tation of sulfate treatment
technologies or other forms of sulfate mitigation; and
(ii) the agency may require sulfate minimization plans
in permits; and
(2) the agency shall not lis t waters containing natural
beds of wild rice as impaired for sulfate under section 303(d)
of the federal Clean Water Act, United States Code, title 33,
section 1313, until the rulemaking described in this paragraph
takes effect.

2015 Minn. Laws 1st Spec. Sess. ch. 4, art. 4, § 136, at 2094-95. In 2017, the legislature
extended the deadline for adopting new rules to January 15, 2019. 2017 Minn. Laws ch. 93,
art. 2, § 149, at 742.
The MPCA drafted new rules, but they were disapproved by the chief administrative
law judge of the office of administrative hearings in January 2018, and the MPCA
“withdrew the Wild Rice rule from the rulemaking process to allow for more work on the
implementation process.” In response to comments on the permit, the MPCA stated that it
“continues to support the scientific basi s developed in the ru lemaking and believes
clarification of the rule’s application is need ed, such as adopting the waters to which the
standard applies into the rule.” The MPCA also stated that, “[b]y the time the investigation
required by the [2018 Minntac] permit is complete, the MP CA expects to have greater
clarity on the appropriate wild rice standard.”
WaterLegacy and the band ar gue that the wild rice rule remains effective and must
be enforced under the CWA notwithstanding the Minnesota Legislature’s attempt to limit

32
its implementation. In response, the MPCA reiterates its argument that no WQBELs are
required in the NPDES portion of the permit because the permit eliminates all discharges
that are likely to cause an exceedance of water-quality standards. But we have concluded
that the MPCA failed to take the requisite “hard look” at whether WQBELs are required in
the permit and are remanding for the MPCA to re determine the issue. In its brief to this
court, the MPCA states that it “would enforce the wild rice sulfate water quality standard
by imposing a WQBEL on U.S. Steel’s surface seepage discharges, if applicable.” Based
on this representation, if the MPCA determin es that WQBELs are required on remand, it
would seem to follow that th e MPCA would apply the wild rice rule in determining
conditions for the NPDES portio n of the permit. Thus, while we reverse the failure to
include WQBELs as explained in section III, any further determination on the applicability
of the wild rice rule would be premature.15
With respect to the SDS portion of the permit, the MPCA argues that it is precluded
from enforcing the wild rice rule by the 2015 legislation. We agree that the wild rice rule
cannot, under current law, be the basis for conditions requiring the expenditure of funds in
the SDS permit. See 2015 Minn. Laws 1st Spec. Sess. ch. 4, art. 4, § 136, at 2094-95. With
respect to the state permitting program, the legislature was free to, and has, overridden the
wild rice rule. See, e.g., Special Sch. Dist. No. 1 v. Dunham , 498 N.W.2d 441, 445
(Minn. 1993) (“It is elementa l that when an administrative rule conflicts with the plain

15 We accordingly do not address U.S. Steel’s argument that the wild rice rule does not
apply because no waters near the facility have been designated as subject to Minn. R.
7050.0224, subp. 2.

33
meaning of a statute, the statute controls.”); see also Kimberly-Clark Corp. &
Subsidiaries v. Comm’r of Revenue , 880 N.W.2d 844, 850 (Minn. 2016) (“What the
legislature has authority to enact it obviously has like authority to amend or even to repeal.”
(quotation omitted)). Accordingly, to the extent that WaterLegacy and the band assert that
the MPCA erred by not including conditions in the SDS portion of the permit based on the
wild rice rule, we reject that assertion.
D E C I S I O N
The MPCA did not err by regulating discha rges to groundwater only under the SDS
portion of the permit. The MPCA did err by applying water-quality standards for
class 1 waters to groundwater in determining conditions in the SDS portion of the permit.
And the MPCA’s determination that WQBELs are not required in the NPDES portion of
the permit is not supported by substantial evidence. Accordingly, we reverse the MPCA’s
decision reissuing the permit and remand for fu rther proceedings consistent with this
decision.
Reversed and remanded.