Grand Portage Band of Lake Superior Chippewa v. United States Environmental Protection Agency

                UNITED STATES DISTRICT COURT                          
                   DISTRICT OF MINNESOTA                              
GRAND PORTAGE BAND OF LAKE                                               
SUPERIOR CHIPPEWA and FOND DU LAC                                        
                                   Civil No. 22-1783 (JRT/LIB)        
BAND OF LAKE SUPERIOR CHIPPEWA,                                          


                    Plaintiffs,                                       
                              ORDER DENYING PLAINTIFFS’ MOTION        
v.                                 FOR SUMMARY JUDGMENT AND              
                                 GRANTING DEFENDANTS’ AND             
UNITED STATES ENVIRONMENTAL      INTERVENOR-DEFENDANTS’ MOTIONS          
PROTECTION AGENCY and MICHAEL S.     FOR SUMMARY JUDGMENT                
REGAN, Administrator of United States                                    
Environmental Protection Agency,                                         

                   Defendants,                                        

v.                                                                       

COALITION OF GREATER MINNESOTA                                           
CITIES, RANGE ASSOCIATION OF                                             
MUNICIPALITIES AND SCHOOLS,                                              
MINNESOTA CHAMBER OF COMMERCE,                                           
CLEVELAND-CLIFFS, INC., UNITED STATES                                    
STEEL CORPORATION, and MINNESOTA                                         
POLLUTION CONTROL AGENCY,                                                

          Intervenor-Defendants.                                      

 Ashley  Bennett,  EARTHJUSTICE,  4215  South  Lucile  Street,  Seattle,  WA 
 98118; Janette K. Brimmer, EARTHJUSTICE, 810 Third Avenue, Suite 610, 
 Seattle, WA 98104; Sara Van Norman, VAN NORMAN LAW, PLLC, 400 East   
 Fourth Street, Suite 401, Minneapolis, MN 55415, for Plaintiffs.     
  Sean W. Copeland, FOND DU LAC LEGAL AFFAIRS, 1720 Big Lake Road,     
  Cloquet,  MN  55720,  for  Plaintiff  Fond  du  Lac  Band  of  Lake  Superior 
  Chippewa.                                                            

  Perry Rosen, DEPARTMENT OF JUSTICE ENVIRONMENTAL AND NATURAL         
  RESOURCES DIVISION, 601 D Street Northwest, Room 2434, Washington,   
  D.C. 20047, for Defendants.                                          

  Haley L. Waller Pitts and Nicole M. Moen, FREDRIKSON & BYRON, 60 South 
  Sixth Street, Suite 1500, Minneapolis, MN 55402; Jeremy P. Greenhouse, 
  FREDRIKSON  &  BYRON,  P.A.,  200  South  Sixth  Street,  Suite  4000, 
  Minneapolis, MN 55402, for Intervenor-Defendants Coalition of Greater 
  Minnesota  Cities,  Range  Association  of  Municipalities  and  Schools, 
  Minnesota Chamber of Commerce, Cleveland-Cliffs, Inc., and United States 
  Steel Corporation.                                                   

  Colin  Patrick  O’Donovan  and  Oliver  J.  Larson,  MINNESOTA  ATTORNEY 
  GENERAL’S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN 55101, 
  for Intervenor-Defendant Minnesota Pollution Control Agency.         

  Arielle Wagner, David  J. Zoll,  and Laura Matson,  LOCKRIDGE  GRINDAL 
  NAUEN PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 
  55401, for Amici Curiae Bois Forte Band of Chippewa, Lower Sioux Indian 
  Community,  Leech  Lake  Band  of  Ojibwe,  Mille  Lacs  Band  of  Ojibwe, 
  Minnesota  Chippewa  Tribe,  Prairie  Island  Indian  Community,  Red  Lake 
  Nation, Upper Sioux Community, and White Earth Nation.               


  Plaintiffs Grand Portage Band of Lake Superior Chippewa and Fond du Lac Band of 
Lake  Superior  Chippewa  (the  “Bands”)  bring  this  action  against  Defendants  the 
Environmental Protection Agency and its director, Michael S. Regan (collectively “EPA”).  
The Bands claim that EPA’s approval of Minnesota’s (the “State”) 2021 revised water 
quality standards was arbitrary, capricious, and contrary to the Clean Water Act, 

 et seq., and implementing regulations, all in violation of the Administrative 
Procedure Act (“APA”), 

 et seq.  The Bands ask the Court to vacate EPA’s 
approval of the revised standards.                                        

  This case primarily presents the question of what is required of EPA in approving 
revisions to state water quality standards to ensure that other downstream water uses 
and Tribes’ treaty-reserved rights are protected.  Until 2021, 

.0223 and 

.0224 provided statewide numeric limits of pollutants allowed in Minnesota 

waters  used  for  industrial  consumption  and  irrigated  agriculture.    Those  standards’ 
numeric limits incidentally protected aquatic life and wild rice by limiting salty pollutants 
that threaten the health and survival of aquatic life and wild rice, which are of particular 

importance to the Bands.                                                  
  The revisions replaced quantitative standards with qualitative narrative standards 
that describe the characteristics that Minnesota waters must have to protect industrial 
consumption or irrigated agriculture uses, and which are applied on a site-specific basis 

through State-issued water use permits.  The Bands challenge EPA’s approval of the 
revised standards, in part, because the agency failed to meaningfully consider the adverse 
impact that removing the numeric limits in the revised standards may have on other 
downstream water uses, particularly aquatic life and wild rice, as well as the Bands’ treaty 

reserved rights to use Minnesota waters.                                  
  In approving the revised water quality standards, EPA determined that aquatic life 
and wild rice, as well as the Bands’ treaty-reserved rights, would continue to be protected 
by separate, unaffected water quality standards that are specifically crafted to protect 
aquatic life and wild rice in Minnesota waters.  In waters used for industrial consumption 

or irrigated agriculture as well as for aquatic life or wild rice, the agency concluded that 
the  revised  standards  and  separate,  unaffected  standards  would  apply  together  to 
protect the most sensitive use, ensuring that all designated uses are protected. 
  Because EPA has supplied a rational basis for its determination that the revised 

water quality standards will protect their designated uses, are scientifically sound, and 
that the most sensitive uses will be protected in waters with multiple uses, the Court finds 
that EPA’s approval was not arbitrary, capricious, or contrary to the Clean Water Act.  

Accordingly, the Court will deny the Bands’ motion for summary judgment and grant 
EPA’s and Intervenor-Defendants’ motions for summary judgment.            

                        BACKGROUND                                     
I.   STATUTORY AND REGULATORY FRAMEWORK                                   

  Congress enacted the Clean Water Act (or “the Act”) to restore and maintain the 
chemical, physical, and biological integrity of waters in the United States.  

(a).  The states, federal government, and Tribes partner to carry out the Act’s 
objectives.  Arkansas v. Oklahoma, 

 (1992); 

(e); 

.  The Act establishes two sets of water quality measures: (1) effluent limitations, 
which are promulgated by EPA and restrict the quantity of pollutants discharged from 
identifiable sources of pollution; and (2) water quality standards, which are generally 
promulgated by the states and establish the desired conditions of a waterbody.  Arkansas, 

; 

, 1313, 1314.                           

  States  must establish water quality standards that  specify “designated uses,” 
which are uses of water that require protection under the standards, and water quality 
“criteria,” which set pollutant limits or the minimum conditions necessary to protect the 
designated uses.  

(c)(2)(A); 

(f), 131.11(a)(1).  Water 

quality criteria can be numeric, meaning they provide quantitative, measurable limits of 
pollutants  allowed  in  a  waterbody,  or  narrative,  meaning  they  provide  qualitative 
descriptions of the characteristics of a waterbody that are necessary to protect the 

designated uses.  See 

(b).  Numeric criteria are generally favored, and 
implementing  regulations  instruct  states  to  adopt  narrative  criteria  where  numeric 
criteria cannot be established or to supplement numeric criteria.  

 § 131.11(b)(2). 
  One of the primary methods of implementing water quality standards is through 

National Pollutant Discharge Elimination System (“NPDES”) permits, which states issue to 
dischargers of pollutants.  Arkansas, 503 U.S. at 101–02.  EPA has delegated authority to 
issue Minnesota NPDES permits to MPCA.  See In re Alexandria Lake Area Sanitary Dist. 
NPDES/SDS Permit No. MN0040738, 

 (Minn. 2009) (citing 

, subd. 5; 

(a)).  Polluters are prohibited from discharging 
effluents into a waterbody unless they have an NPDES permit.  

; see also 

(a).  NPDES permits provide conditions that will result in compliance with 
state water quality standards.  

(a)(1); 

(d)(1).  Narrative 
criteria are generally more difficult to implement in a permit than numeric criteria.  In re 

Alexandria, 

 (citing Am. Paper Inst., Inc. v. United States Env’t Prot. 
Agency, 

, 350 (D.C. Cir. 1993)).                              
  EPA must approve a state’s water quality standards before they become effective 
and must make certain determinations in the review process.  

(c)(2)(A), 

(c)(3); 

.  These determinations include:  (1) whether the state has adopted 
designated uses that are consistent with the Clean Water Act; (2) whether the state has 
adopted  criteria  that  protect  the  designated  use;  (3)  whether  the  state  followed 

applicable procedures for revising or adopting standards; (4) whether the standards are 
based on appropriate technical and scientific data; and (5) whether the standards meet 
the submission requirements provided in 

.  

(a).  Water 
quality standards must protect the designated use for which they are crafted, be based 

on sound scientific rationale, ensure the attainment and maintenance of downstream 
water quality standards, and protect the most sensitive use in waters with multiple 
designated uses.  

(b), 131.11(a).                      
II.  FACTUAL BACKGROUND                                                   

  A.   Minnesota’s 2021 Water Quality Standards Revisions              
  Minnesota’s water quality standards establish seven types of designated uses, 
including aquatic life and recreation (Class 2), industrial consumption (Class 3), and 
agriculture and wildlife (Class 4).  Minn R. 7050.0140.  Each classification establishes its 
own set of water quality criteria necessary to protect the applicable designated use(s). 

  The previous industrial, agricultural and wildlife use classes and their associated 
standards were established in the late 1960s.  AR 811–12.1  There have been some 
revisions over the years, but for the most part the numeric standards have remained the 
same since the rules were established in the 1960s.  AR 812.  In 2021, after a decade-long 

process,  MPCA  amended  Minnesota’s  water  quality  standards  to  revise  the  State’s 
designated uses and water quality criteria at Minn R. 7050.0223 to protect industrial 
consumption uses (Class 3) and the State’s criteria at 

.0224 to protect 

agriculture and wildlife uses (Class 4).  AR 802, 3903.                   
         1.  Industrial Consumption Use                                
  Prior  to  the  2021  revisions,  Minnesota  divided  Class  3  into  four  industrial 
subclasses with distinct numeric and narrative criteria based on the necessary level of 
treatment before the water is used for industrial purposes.  AR 811–13.  When reviewing 

the Class 3 standards, MPCA determined that industrial water appropriators are primarily 
concerned about consistency and quantity of water intake and are willing to treat water 
to achieve their specific water quality needs.  AR 1024–25.  Because technologies had 

significantly improved for industrial appropriators to treat their intake water, MPCA 
concluded that the previous numeric criteria that protected industrial consumption use 


  1 All citations to the Administrative Record are from ECF No. 22-1783. 
were no longer necessary and thus lacked a sound scientific rationale.  AR 811–813, 1039–
40.  After considering survey data and the limited research that exists on industrial water 

treatment  needs,  MPCA also determined it  was impossible to  establish  new  single, 
statewide numeric values for chlorides, hardness, and pH that would protect all waters 
used for industrial consumption purposes because of the varied water treatment needs 
between industrial appropriators.  AR 1038–39.                            

  Thereafter, MPCA re-designated the Class 3 sub-classes as a single Class 3 use 
classification and replaced all numeric criteria with a single narrative standard.  AR 814.  
The narrative standard incorporates language from the pre-2021 descriptions of the 

overall class and subclasses and requires that Class 3 waters be of such quality as to permit 
their use for industrial purposes to avoid severe fouling, corrosion, or scaling.  

.0223 Subp. 2.  MPCA also adopted a “narrative translator,” which translates the 
narrative standards into effluent limitations for permitting depending on the unique 

needs of the water operation at issue.  AR 1040–41, 8715–22.  Narrative translators assist 
the State in ensuring that narrative criteria are attained by converting the protective goals 
of narrative standards into enforceable, numeric wastewater effluent limitations that 
protect the designated use(s).  AR 1175.  The Class 3 translator helps determine whether 

a discharger must have an effluent limit to protect a downstream industrial use.  See 

.0260.  MPCA also changed its enforcement of industrial water quality 
standards to assess compliance at the point that an industrial user withdraws water 
instead of at the discharge point.  Minn R. 7053.0205 Subp. 7(E); 7053.0260 Subp. 3(B). 

         2.  Agriculture and Wildlife Use                              
  The agriculture and wildlife use classification is divided into multiple subclasses, 
including irrigated agriculture (Class 4A) and livestock and wildlife (Class 4B).  

.0224.  The Bands’ challenge only relates to the Class 4A revisions.  The Class 4A 

irrigated agriculture subclass establishes criteria that are generally applicable to all waters 
used to irrigate crops and vegetation, as well as criteria that are specifically applicable to 
waters used for wild rice production.  Minn R. 7050.0224 Subp. 2.         
            a.  General Criteria                                       
  Prior to the 2021 revisions, the general water quality criteria for Class 4A included 

numeric and narrative criteria.  AR 1054.  The numeric criteria established limits for 
bicarbonates, pH, specific conductance, total dissolved salts, and sodium (collectively 
“salt pollutants”), as well as sulfates and boron.  AR 813, 1054.  Upon review of the Class 

4A standards, MPCA determined that the prior numeric criteria for the salt pollutants 
were no longer scientifically defensible.  AR 1058–62.  The wide variety of irrigated 
agriculture  water  needs,  which  vary  based  on  crop  type,  soil  type,  soil  drainage 
management techniques, precipitation patterns, irrigation practices, and soil mineral 

content,  precluded  the  adoption  of  single,  statewide  numeric  criteria  for  the  salt 
pollutants that would protect irrigated agriculture use.  

  MPCA thus concluded that the 
best way to protect irrigated agriculture use was through a narrative standard and robust 
implementation process.  Id.; AR 802.                                     

  As a result, MPCA removed the numeric criteria for the salt pollutants and retained 
the  previous  narrative  criteria,  with  some  minor  revisions.    AR  3911–12;  

.0224 Subp. 2.  The narrative standard now requires that Class 4A waters be of such 
quality “as to permit their use for irrigation without significant damage or adverse effects 

upon any crops or vegetation usually grown in the waters or area.”  

.0-224 
Subp. 2.  MPCA left in place the numeric criteria for boron, radioactive materials, and 
sulfates.  MPCA also adopted a narrative translator to establish numeric thresholds for 

the  salt  pollutants.    AR  1121–32,  8723–31.    The  Class  4A  translator  sets  numeric 
thresholds for sodium absorption ratio and specific conductance for sensitive and non-
sensitive crops to ensure that waters used for irrigation will not detrimentally increase 
soil salinity in the root zone.  AR 8730, 1128–29; see also 

.0263.  MPCA also 

changed its enforcement of irrigation water quality standards to assess compliance at the 
point at which water is withdrawn for irrigation.  

.0205 Subp. 7(D); 

.0263 Subp. 3(B).                                                     
            b.  Specific Criteria for Wild Rice                        

  Minnesota has numeric and narrative criteria that specifically protect wild rice, 
which it did not revise in the 2021 revision package.  See 

.0224 Subp. 2.  The 
numeric criteria limits sulfate to 10 mg/L in waters used for production of wild rice during 
periods when the rice may be susceptible to damage by high sulfate levels.  

  The 
narrative criteria requires that the quality of the waters and aquatic habitat for wild rice 

not be materially impaired or degraded.  

.0224 Subp. 1.           
         3.  Aquatic Life and Recreation Use                           
  Minnesota also has numeric and narrative criteria that protect aquatic life, which 
it did not revise in 2021.  

.0140 Subp. 3, 7050.0222.  Aquatic life use refers 

to waters that support or may support aquatic biota.  

.0140 Subp. 3, 
7050.0222.  The Class 2 standards establish numeric criteria for over 70 substances, 
including salt pollutants like chloride, which is limited to 230 mg/L in Class 2 waters.  

.0222.  Class 2 also establishes narrative criteria and biological criteria, which use 

field surveys to assess the condition of biological communities in a waterbody to protect 
aquatic life.  

.0222 Subps. 2, 3, 7(A), 2d, 3d, 4d.          
  The industrial discharge of salty pollutants can threaten the health and survival of 
aquatic life.  See, e.g., AR 2103, 6025–37, 6074–6133.  In promulgating the revised water 

quality standards at issue in this case, MPCA recognized such concerns.  AR 806–07, 851.  
However, MPCA anticipated that the revisions would not result in harmful increases in 
salt pollutants because of the detailed implementation procedures to attain the revised 

Class 3 and 4 narrative standards, as well as the Class 2 chloride standard that remains 
unaffected by the 2021 rulemaking.  AR 851.  Additionally, MPCA shared steps that it is 
taking to protect Class 2 aquatic life uses while research is underway to determine an 
appropriate numeric standard for future Class 2 rulemaking.  AR 1193.  The interim 
approach is grounded in the Class 2 narrative criteria and will apply a translator to 
“translate”  the  narrative  criteria  into  more  workable,  numeric  values  for  permits, 

specifically for chloride and sulfate.  See AR 1193–1207.                 
  B.  EPA’s Approval of Minnesota’s 2021 Revisions                     
  In August 2021, MPCA submitted its rule revision package to EPA.  AR 3903, 3499.  
The rule revision package contained MPCA’s technical analysis, scientific studies and 

surveys it considered, the public comments it received, and MPCA’s response to public 
comments.  AR 1–3901.                                                     
  In reviewing the package, EPA invited representatives of the eleven Tribes in 
Minnesota to participate in two conference calls to consult on the revisions.  AR 3946, 

8820.  Five Tribes participated on either one or both calls, and one Tribe also submitted 
written comments.  AR 3946.  EPA summarized the issues identified by the Tribes during 
the consultation and discussed how EPA considered those concerns in its review of the 
revisions.  AR 8820–32.                                                   

  On October 8, 2021, EPA approved MPCA’s revisions to its water quality standards.  
AR 3947–48.  EPA explained its decision in a 44-page approval letter that cites scientific 
studies the agency considered and public comments it received.  See generally AR 3903–

46, 3949–8774, 8983–10078.  EPA acknowledged concerns that removing industrial and 
agricultural numeric criteria that incidentally protected aquatic life and wild rice would 
negatively  impact  aquatic  life,  wild  rice,  and  human  health.    See  AR  3925–32.    It 
nonetheless concluded that existing water quality standards for aquatic life and wild rice, 
which were unaffected by the rulemaking at issue in this case, would continue to protect 
those designated uses, especially when they are the more sensitive use.   

  Starting with aquatic life, EPA considered whether it was scientifically possible for 
MPCA to derive numeric criteria to protect aquatic life from the effects of the salty 
pollutants  beyond  the  230  mg/L  numeric  limit  for  chloride  that  MPCA  has  already 
adopted.  AR 3927; see also 

.0222.  But because “ion toxicity is complex and 

dependent on multiple factors,” deriving numeric criteria to protect aquatic life “is a 
matter of evolving science,” not yet susceptible to quantitative resolution.  AR 3927.  
Furthermore, the agency noted that given the variability of water quality needs for 

industrial consumption and irrigated agriculture uses, it is “not possible” to determine 
whether aquatic life is the most sensitive use with respect to salty pollutants in waters 
also used for industrial consumption and/or irrigated agriculture uses.  AR 3928.  The 
agency determined that the State’s existing narrative and biological criteria for aquatic 

life had been “duly adopted, approved by EPA and effective for all [Clean Water Act] 
purposes”  and  were  therefore  independently  adequate,  irrespective  of  the  revised 
standards, to protect aquatic life when it is the more sensitive use.  AR 3928. 
  EPA also considered MPCA’s proposed methods of implementing the existing Class 

2 narrative and biological criteria to combat the salty pollutants, methods which were 
developed from an EPA manual.  Id.; see also AR 1193–1287.  Though EPA did not 
specifically review these methods to determine whether they protect aquatic life, it did 
note that MPCA’s proposed implementation methods “are based on accepted methods 
for identifying effects to aquatic life.”  AR 3929 n.27.  Ultimately, EPA concluded that “in 

the absence of the numeric criteria for ions associated with Class 3 and 4 that Minnesota 
is removing, Minnesota’s existing narratives protect against the types of harm excess ions 
may present to aquatic life in waterbodies designated for aquatic life.”  AR 3929.   
  Turning to wild rice, EPA acknowledged the commenters’ primary concern about 

increased sulfate levels, which is especially harmful to wild rice.  But the wild rice numeric 
limit for sulfate, 10 mg/L, would be unaffected by the rulemaking because it remains in 
effect for “water used for production of wild rice.”  AR 3930.  EPA then considered 

whether it was possible for MPCA to derive numeric criteria to protect aquatic plants from 
the effects of the other salt pollutants.  Similar to aquatic life, EPA determined that such 
criteria  are  a  “matter  of  evolving  science”  requiring  “additional  data  and  analysis 
regarding wetland plant responses,” especially in the absence of EPA recommendations.  

  And as with aquatic life, it is “not possible” to determine whether wild rice is the most 
sensitive use with respect to the salty pollutants in waters also used for variable industrial 
consumption and/or irrigated agriculture uses.  

                       
  At any rate, the agency determined that the State’s existing narrative criteria for 

irrigated agriculture protects wild rice where it is cultivated, and that the specific narrative 
criteria for aquatic life, including wild rice, are also adequately protective of wild rice.  AR 
3931.  EPA also noted MPCA’s proposed implementation methods for these criteria.  

  
EPA ultimately concluded that the existing water quality standards protect against the 
salty pollutants that may harm wild rice.  

                            

  Furthermore,  for  both  aquatic  life  and  wild  rice  EPA  noted  that  the  revised 
industrial and agricultural water quality standards were never intended to protect aquatic 
life or wild rice.  Consequently, “there was not then and there is not now a sound scientific 
rationale to support a conclusion that the criteria that Minnesota has removed would be 

protective of aquatic life [or wild rice] uses.”  AR 3929, 3932.  Additionally, EPA noted its 
anticipation that “greater reliance on implementation of Minnesota’s approved narrative 
criteria  will  result  in  its  NPDES  permitting  and  other  regulatory  decisions  including 

limitations more stringent than ones based on the now-removed criteria, to the extent 
that best available current or evolving science indicates that such more stringent limits 
would protect” aquatic life and wild rice.  AR 3929, 3932.                
  C.  The Bands’ Treaty Reserved Rights                                
  The Bands are sovereign, federally recognized Indian Tribes with reservations in 

northern Minnesota.  (Compl. ¶ 9, July 14, 2022, Docket No. 1.)  Fish and wild rice in 
Minnesota waters hold great cultural, economic, subsistence, ecological, medicinal, and 
spiritual significance to the Bands.  (Decl. of Thomas Ethan Howe ¶¶ 9, 18–21, May 10, 

2023, Docket No. 91; Decl. of April M. McCormick ¶¶ 6–10, May 10, 2023, Docket No. 92.)  
The Bands have rights to harvest wild rice and other resources that are protected under 
treaties and federal law.  Specifically, the 1854 Treaty of LaPointe and 1837 Treaty with 
the Chippewa establish the Bands’ usufructuary rights across off-reservation lands and 
waters.  

 (Sept. 30, 1854); 

 (July 20, 1837).     

  EPA authorizes the Bands to administer water quality standards in the same way 
as states.  

(e).2  The Bands have adopted their own water quality 
standards to combat pollution and preserve waters that flow through their reservations, 
which include criteria to protect aquatic life and wild rice.3            

III.  PROCEDURAL HISTORY                                                  
  The Bands initiated this action against EPA.  (See Compl.)  Intervenor-Defendants 
Minnesota Pollution Control Agency (“MPCA”) and Coalition of Greater Minnesota Cities, 
Range Association of Municipalities and Schools, the Minnesota Chamber of Commerce, 

Cleveland-Cliffs  Inc.,  and  United  States  Steel  Corporation  (collectively  “Regulated 
Entities”) moved to intervene as defendants, which the Court granted.  (Order at 18, Nov. 
21, 2022, Docket No. 57.)  The Bands and EPA filed cross motions for summary judgement 

on all causes of action.  (Pls.’ Mot. Summ. J., May 10, 2023, Docket No. 88; Defs.’ Cross 
Mot. Summ. J., June 21, 2023, Docket No. 99.)  The nine other federally recognized Tribes 
in Minnesota moved for leave to file an amici curiae brief in support of the Bands’ 



  2  U.S.  E.P.A.,  Tribes  Approved  for  Treatment  as  a  State  (TAS), 
https://www.epa.gov/tribal/tribes-approved-treatment-state-tas (last visited Mar. 13, 2024). 
  3 See U.S. E.P.A., Tribal Water Quality Standards, Grand Portage Band of Minnesota 
Chippewa, https://www.epa.gov/wqs-tech/water-quality-standards-regulations-grand-portage-
band-minnesota-chippewa (last visited Feb. 29, 2024); EPA, Tribal Water Quality Standards, Fond 
du  Lac  Band  of  the  Minnesota  Chippewa,  https://www.epa.gov/wqs-tech/water-quality-
standards-regulations-fond-du-lac-band-minnesota-chippewa (last visited Feb. 29, 2024). 
summary judgment motion, which the Court granted.4  (Mot. to Appear as Amici Curiae, 
June 2, 2023, Docket No. 95; Order, June 7, 2023, Docket No. 97.)  The MPCA and 

Regulated Entities filed separate motions for summary judgment.  (Cross Mot. Summ. J., 
June 30, 2023, Docket No. 103; Cross Mot. Summ. J., July 2, 2023, Docket No. 107.) 
                         DISCUSSION                                    
I.   STANDARD OF REVIEW                                                   
  A.  Summary Judgment                                                 

  Summary judgment is appropriate when there are no genuine issues of material 
fact, and the moving party can demonstrate that it is entitled to judgment as a matter of 
law.  Fed. R. Civ. P. 56(a).  A fact is material if it might affect the outcome of the suit, and 
a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a 

verdict for the nonmoving party.  Anderson v. Liberty Lobby, Inc., 

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 
favorable to the nonmoving party and give that party the benefit of all reasonable 

inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

 (1986).  The nonmoving party may not rest on mere allegations or 



  4 The Court appreciates hearing from the Bois Forte Band of Chippewa, Lower Sioux Indian 
Community, Leech Lake Band of Ojibwe, Mille Lacs Band of Ojibwe, Minnesota Chippewa Tribe, 
Prairie Island Indian Community, Red Lake Nation, Upper Sioux Community, and White Earth 
Nation.    The  amici  curiae  brief  provided  helpful  context  and  arguments  for  the  Court’s 
consideration.  Because of the overlap of the amici curiae arguments with the Bands’, the Court 
will address all arguments together.                                      
denials but must show, through the presentation of admissible evidence, that specific 
facts exist creating a genuine issue for trial.  Anderson, 

 (discussing Fed. R. 

Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”  

.                                     
  When a court reviews agency action under the APA, the entire case on review is a 

question of law.  Am. Bioscience, Inc. v. Thompson et al., 

 (D.C. Cir. 
2001); Mahnomen Cnty. v. Bureau of Indian Affs., 

, 1255–56 (D. Minn. 
2009).  The question is whether, based on the administrative record, the agency’s action 

was lawful.  See Mahnomen Cnty., 

.  Thus, resolution at the 
summary judgment stage is likely.  Here, the parties agree there are no genuine issues of 
material fact and  that the only question is a legal one: whether EPA’s approval of 
Minnesota’s revised water quality standards violated the Clean Water Act and the APA.   

  B.  Administrative Procedure Act                                     
  The Court’s review of agency decisions is limited by the APA.  Voyageurs Nat’l Park 
Ass’n v. Norton, 

 (8th Cir. 2004).  The APA allows a court to set aside an 
agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with the law.”  

(2)(A); Gipson v. I.N.S., 

 (8th Cir. 

2002) (quoting id.).  “The scope of review under the ‘arbitrary and capricious’ standard is 
narrow and a court is not to substitute its judgment for that of the agency.”  Motor Vehicle 
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

 (1983).  An 
agency decision is not arbitrary and capricious if it “examine[d] the relevant data and 
articulate[d] a  satisfactory explanation  for its action including a rational connection 

between the facts and the choice made.”  Simmons v. Smith, 

 (8th Cir. 
2018) (quoting State Farm, 

).  A court will affirm the agency’s findings of 
fact if it “is supportable on any rational basis.”  Foster v. Vilsack, 

 (8th 
Cir. 2016) (citing Voyageurs, 

).                           

  The Bands bear the burden of demonstrating that EPA’s action was arbitrary and 
capricious.  United States v. Massey, 

 (8th Cir. 2004).  If the Court finds 
the Bands have not met their burden, it will validate EPA’s approval and grant EPA’s and 

the Intervenor-Defendants’ motions for summary judgment on that basis.    
II.  THE BANDS’ STANDING                                                  
  As an initial matter, the Regulated Entities assert that the Bands lack standing to 
challenge the revised Class 3 standards.5  Because the purpose of the revised Class 3 

standards is to protect industrial consumption use and because the Bands have not 
alleged an injury to industrial use, the Regulated Entities claim the Bands have failed to 
allege an injury within their protected zone of interests.  The Court disagrees. 
  Prudential standing requirements limit the exercise of federal jurisdiction, in part, 

by requiring that “a plaintiff seeking judicial review must also show the injury complained 



  5 The Regulated Entities and other defendants do not contest the Bands’ standing to 
challenge the revised Class 4 standards.                                  
of falls within the zone of interests sought to be protected by the statutory provision.”  
Rosebud Sioux Tribe v. McDivitt, 

 (8th Cir. 2002).  Because the Bands 

are not themselves the subject of EPA’s regulatory action, they lack standing only if their 
interests “are so marginally related to or inconsistent with the purposes implicit in the 
statute that it cannot reasonably be assumed that Congress intended to permit the suit.”  

 (quoting Clarke v. Sec. Indus. Ass’n, 

 (1987)).  “Whether a plaintiff’s 

interest is arguably protected by the statute within the meaning of the zone-of-interests 
test is to be determined not by reference to the overall purpose of the Act in question but 
by reference to the particular provision of law upon which the plaintiff relies.” 

 (cleaned 

up).                                                                      
  Here, the Bands assert standing as sovereign, federally recognized Indian Tribes 
with  reservations  in  northern  Minnesota  and  treaty-reserved  usufructuary  rights  to 
Minnesota waters.  The Bands claim their “existential interest in protecting Minnesota 

waters and their treaty-reserved rights to hunt, fish, harvest wild rice, and gather food 
and plants” fall within the zone of interests protected by the Clean Water Act.  (Pl.’s Mem. 
Supp. Mot. Summ. J. at 27, May 10, 2023, Docket No. 90.)                  
  The plain language of the Clean Water Act’s provisions reflects a commitment to 

ensure  that  states  establishing  water  quality  standards  holistically  evaluate  such 
standards’ impact and ensure they preserve existing uses.  See 

(c)(2)(A) 
(“Whenever the State revises or adopts a new standard, . . . [s]uch standards shall be 
established  taking into consideration their  use  and  value for  public water  supplies, 
propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and 

other purposes.”).  The Act’s regulations reflect the same commitment.  See 

(b) (providing that states “shall take into consideration the water quality standards 
of downstream waters and shall ensure that its water quality standards provide for the 
attainment and maintenance of the water quality standards of downstream waters”).   

  The Bands’ treaty-reserved rights and existential interest in protecting Minnesota 
waters are not “so marginally related to or totally inconsistent with the purposes implicit” 
in the Clean Water Act to fall outside the protected zone of interests.  Rosebud, 

 (quoting Clarke, 

).  Revisions to the Class 3 standards will allegedly 
harm the Bands’ ability to exercise their treaty-reserved rights.  Accordingly, the Court 
finds that the Bands have standing to challenge the Class 3 standards.    
III.  RECORD ON REVIEW                                                    

  The Bands request that the Court judicially notice several documents that fall 
outside the administrative record because those documents contain information made 
publicly available by government entities.  (See Aff. of Ashley Bennett ¶¶ 3–9, Exs. A–F, 
Aug. 2, 2023, Docket No. 114.)  The Court cannot do so.                   

  Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice 
of facts that are not reasonably disputed if certain criteria are met.  Fed. R. Evid. 201(b).  
However, judicial review under the APA is generally limited to the administrative record 
that was before the agency when it made its decision.  Voyageurs, 

; Dist. 
Hosp. Partners, L.P. v. Sebelius, 

, 32 n.14 (D.D.C. 2013) (“[T]aking judicial 
notice is typically an inadequate mechanism for a court to consider extra-record evidence 

when reviewing an agency action.”).  The administrative record, and “not some new 
record made initially in the reviewing court,” should be the “focal point” for judicial 
review.  Camp v. Pitts, 

 (1973).   While there are certain exceptions to 
this rule, they “apply only under extraordinary circumstances.”  Voyageurs, 

.    “When  there  is  ‘a  contemporaneous  administrative  record  and  no  need  for 
additional explanation of the agency decision, there must be a strong showing of bad faith 
or improper behavior before the reviewing court may permit discovery and evidentiary 

supplementation of the administrative record.’”  

 (quoting Newton Cnty. Wildlife Ass’n 
v. Rogers, 

, 807–08 (8th Cir. 1998)).                         
  Here,  the  Bands  assert  that  the  extra-record  documents  are  necessary  to 
determine “whether the agency has considered all relevant factors and has explained its 

decision.”  Lands Council v. Powell, 

, 1030 (9th Cir. 2005).  However, the 
Bands have not established a “strong showing of bad faith or improper behavior” that 
would justify taking judicial notice of these extra-record documents.  Voyageurs, 

.  The Court can, of course, consider documents that were referenced in the 

rulemaking comments and necessarily encompassed in the record.  See, e.g., AR 44 n.3, 
177, 1903, 14268, 15535–36, 15810.  But the Court will not go beyond those materials in 
the record.                                                               
IV.  ARBITRARY AND CAPRICIOUS REVIEW                                      
  The Bands assert that EPA’s approval of Minnesota’s 2021 revised water quality 

standards must be set aside for four reasons: (1) it was improper to remove the numeric 
criteria; (2) EPA failed to properly consider the impact of the revised standards on other 
downstream water uses, including aquatic life and wild rice; (3) EPA failed to meaningfully 
consider the impact the revised standards may have on the Bands’ treaty-reserved rights 

to use Minnesota waters; and (4) there was no analysis of the cumulative impact of the 
revised standards given Minnesota’s implementation and enforcement of water quality 
standards over the years.  The Court will analyze each argument in turn.  
  A.     Numeric Criteria                                              

  The Bands assert that it was improper for EPA to approve MPCA’s decision to 
remove the numeric criteria from the revised water quality standards because numeric 
criteria could have been established.  The Court disagrees.               
  Under the Clean Water Act and implementing regulations states should adopt 

narrative criteria “where numerical criteria cannot be established or to supplement 
numerical criteria.”  

(b).  Because numeric criteria were in place prior 
to the 2021 revisions, the Bands assert that numeric criteria were possible for the revised 
standards.6  But just because numeric criteria are possible does not mean they comply 



  6 Amici argue that MPCA failed to perform a required Use Attainability Analysis (“UAA”) 
to determine whether numeric criteria for Class 3 and 4 waters could be achieved.  See 40 C.F.R. 
with the Clean Water Act and implementing regulations.  Water quality criteria “must be 
based on sound scientific rationale.”  

 § 131.11(a)(1).                

  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.  MPCA also concluded that numeric criteria for salt 

pollutants to protect irrigated agriculture uses were no longer scientifically defensible 
given the wide variety of irrigated agriculture water needs that depend on a litany of 
factors.                                                                  

  It was reasonable for EPA to affirm MPCA’s conclusion that the previous numeric 
criteria for industrial consumption and irrigated agriculture uses were “based on outdated 
assumptions” and were precluded by the variability of local irrigated agriculture factors 
throughout the State.  AR 1040.  National and international experts, scientific literature 

databases, specialized reports, and water quality standards in other states all indicated 



§ 131.10(g).  EPA’s website indicates that a UAA “must be conducted for any water body when a 
state or authorized tribe … designat[es] sub-categories of [uses specified in Section 101(a)(2) of 
the Clean Water Act] that require less stringent criteria than previously applicable.”  U.S. E.P.A., 
Use Attainability Analysis (UAA), https://www.epa.gov/wqs-tech/use-attainability-analysis-uaa 
(last visited Mar. 13, 2024).  However, EPA determined that the only designated uses affected by 
the rulemaking are the “previously existing Class 3 industrial consumption subclasses,” which the 
state re-designated with a general Class 3 use classification.  AR 8822.  The agency explained that 
the Class 3 industrial consumption uses are not uses specified in Section 101(a)(2) of the Act, 
which pertain to aquatic life and recreation, such that MPCA was not required to conduct a UAA 
to support the re-designation of waters with a general Class 3 use.  Id.  
that statewide numeric criteria are disfavored given the varying needs of industrial and 
agricultural uses.  AR 3920–25.  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.                                             
  Furthermore, EPA did not improperly consider convenience and costs in deciding 
whether  to  remove  the  numeric  criteria  previously  in  place  to  protect  industrial 

consumption and irrigated agriculture uses.  Convenience and costs associated with water 
quality compliance should not guide EPA’s regulatory decision-making.  See 

, 131.11; Miss. Comm’n on Nat. Res. v. Costle, 

, 1277 (5th Cir. 1980) 

(agreeing  with  EPA’s  interpretation  that  economic  factors  are  to  be  considered  in 
designating uses but are irrelevant to the scientific and technical factors to be considered 
in setting criteria to meet those uses).  But they are relevant for the MPCA’s analysis.  See 

.  Concerns about convenience and costs created the urgency that 

prompted Minnesota to revise the water quality standards for those designated uses in 
the first place.  See AR 920.  And the fact that the costs of compliance are lower now 
under the revised standards is not per se impermissible.                  
  The Court finds EPA’s approval of replacing the numeric criteria rational and 

supported by science, and thus will not overturn EPA’s decision on this basis. 
  B.   Consideration of Aquatic Life and Wild Rice                     
  The Bands claim that EPA failed to meaningfully consider the impact that removing 
the numeric criteria would have on other downstream water quality standards, including 
those that protect aquatic life and  wild rice.  The Bands claim  that EPA rested on 
conclusory  assumptions  that  other  existing  water  quality  standards  will  protect 

downstream  water  uses  without  conducting  thorough  analyses  to  support  those 
assumptions.    See  Genuine  Parts  Co.  v.  EPA,  

  (D.C.  Cir.  2018) 
(“Conclusory explanations for matters involving a central factual dispute where there is 
considerable evidence in conflict do not suffice to meet the deferential standards of our 

review.” (quotation omitted)).  But while EPA could have done more to meaningfully 
consider such impact, it did enough to preclude judicial intervention.    
  The Clean Water Act “endorses a holistic approach to the nation’s waterways.”  El 
Dorado Chem. Co. v. United States Env’t Prot. Agency, 

 (8th Cir. 2014); 

see also AR 3925–26  (“EPA interprets  and  implements  its  regulation  at  

(a) to consider whether ‘criteria’ are holistically protective.”).  Under this holistic 
approach,  a  state  “shall  take  into  consideration  the  water  quality  standards  of 

downstream waters and shall ensure that its water quality standards provide for the 
attainment and maintenance of the water quality standards of downstream waters.”  

(b).  In addition, water quality standards must protect the most sensitive 
use in waters with multiple designated uses.  

(a).      

  Here,  EPA  acknowledged  that  removing  numeric  criteria  for  industrial  and 
agriculture uses may impact aquatic life, wild rice, and human health because the numeric 
criteria incidentally protected those uses.  Loss of those incidental benefits is legally 
permissible, though.  See Nat. Res. Def. Council, Inc. v. United States Env’t Prot. Agency, 

, 1404–05 (4th Cir. 1993).  And EPA explained that existing water quality 

standards for aquatic life and wild rice, which were unaffected by the rulemaking at issue 
in this case, remain in effect and will continue to protect those designated uses, especially 
when they are the more sensitive use.  Thus, the agency addressed the Bands’ concerns, 
albeit briefly.  Contra Genuine Parts Co., 

 (finding it arbitrary and capricious 

where agency “simply ignore[d]” cross sections of a study that did not support its position 
in the record).                                                           
  The Court cannot find EPA’s review of the standards’ impact on aquatic life and 

wild rice arbitrary and capricious.  EPA made all the appropriate determinations as 
required under the Clean Water Act and implementing regulations.  See 

.  
And the agency’s explanation that aquatic life and wild rice remain protected by their own 
numeric, narrative, and biological criteria is rational.  In waters where aquatic life or wild 

rice are the most sensitive uses, their corresponding standards are supposed to protect 
those uses, even if the revised Class 3 and 4 standards no longer do so.7  

(a).                                                                



  7 Though the Bands insist that EPA should have analyzed what the most sensitive use is 
within the waters and how that use will be protected under the revised standards, the agency 
concluded that the variability of water quality needs for industrial consumption and irrigated 
agriculture uses make it impossible to determine whether aquatic life, wild rice, industrial 
consumption, or irrigated agriculture uses is the most sensitive use.  The Court is in no position 
to question this technical conclusion.                                    
  The Bands assert that EPA was required to conduct more comprehensive analyses, 
including how the revised standards could lead to increases in specific conductivity, 

sulfate, chloride, or mercury levels in Minnesota waters and in turn harm aquatic life or 
wild rice.  For example, the Bands claim EPA should have considered how the revised 
standards will presumptively allow a site-specific concentration of 1,000 mg/L of sulfate 
in any waterbody not used for cattle, which the Bands claim is 100 times the level of 

sulfate that protects wild rice.  In addition, the Bands assert that aquatic life will not be 
adequately protected by the 230 mg/L chloride standard that is set in the Class 2 criteria 
after removing the 50 mg/L and 100 mg/L chloride standards that were set in the Class 3 

criteria given current data indicating the sensitivity of aquatic life to chloride at much 
lower levels.  While the Court agrees those analyses would have been helpful, they are 
not required by law.                                                      
  The revised standards may have provided “backstop” numeric criteria protections 

for aquatic life and wild rice.  But those standards were meant to protect industrial 
consumption  and  irrigated  agriculture  uses,  not  aquatic  life  or  wild  rice.    And  the 
regulations do not require that water quality standards specifically crafted to protect 
industrial and agriculture uses protect other uses in perpetuity just because they did so 

at one point.  Otherwise, there would be no need for multiple classifications of designated 
uses and their associated standards in the first place.  Instead, the State need only ensure 
that “its water quality standards provide for the attainment and maintenance of the water 
quality standards of downstream waters.”  

(b).  It was not arbitrary and 
capricious for the EPA to find that the revised standards did so here.    

  On this record and based on current science, EPA reasonably determined that the 
unaffected water quality standards already in place8 to protect aquatic life and wild rice 
remain in effect to protect those uses.  While the agency’s “just trust us” statements 
would never survive de novo review by the Court, the Court is bound by the extremely 

deferential  standard  of  review  under  the  APA.    The  revisions  to  the  water  quality 
standards involve the evaluation of technical science of which MPCA and EPA are experts, 
and the Court may not “substitute its judgment for that of the agency.”  State Farm, 

.  Though EPA could and should have provided greater analysis here, the agency 
satisfied its minimal obligations under the Clean Water Act and APA.  Accordingly, the 
Court finds that EPA meaningfully considered the impact that the revised water quality 
standards could have on aquatic life and wild rice and will not overturn EPA’s approval of 

the revised standards on that basis.                                      
  C.   Consideration of the Bands’ Treaty-Reserved Rights              
  The Bands assert that EPA failed to meaningfully consider the impact that the 
revised water quality standards would have on Tribal reserved rights, including rights 



  8 In some ways, the Bands’ challenge seems to really be about whether the State can 
effectively  enforce  its water  quality standards  and whether  the  aquatic  life  and  wild  rice 
standards adequately protect those designated uses.  But this is a separate argument that the 
Court will address below.                                                 
related to wild rice, drinking water, medicinal and Tribally important plants, and aquatic 
life.  While the Court is disappointed EPA did not do more to meaningfully interact with 

the Bands and other Tribes regarding the revised standards, the Court cannot overturn 
the agency’s approval on that basis.                                      
  States and EPA must consider Tribal treaty rights to aquatic and aquatic-dependent 
resources to comply with the Clean Water Act and implementing regulations.  See 

(c)(2)–(3), 1371(a); 

, 131.6, 131.10(b).  Failure to do so 
may be grounds for overturning the agency’s approval of water quality standards.  See, 
e.g., Miccosukee Tribe of Indians of Fla. v. United States, No. 04-21448, 

, 

at *38 n.70 (S.D. Fla. July 29, 2008) (finding that EPA violated Clean Water Act in part by 
failing to consider the effects of the revised water quality standards on the Miccosukee 
Tribe’s downstream water uses).                                           
  In reviewing Minnesota’s revised standards, EPA invited Tribal representatives to 

consult on the revisions.  After two conference calls and reviewing Tribal comments, EPA 
sent the Tribes a letter that summarized the issues identified by the Tribes and discussed 
how EPA considered those concerns in its review.9  EPA explained that many of the Tribes’ 
concerns  relate  to  Class  3  and  4  designated  uses  and  criteria  revised  in  the  2021 



  9 MPCA also acknowledged the Bands’ concerns about the revisions’ potential impact on 
aquatic life and wild rice and actively engaged with the Bands throughout the revision process.  
AR  819,  983–94.    MPCA  addressed  the  Tribes’  concerns  in  their  response  to  the  Tribes’ 
comments, in meetings with the Tribes, and in MPCA’s technical documents.  AR 983–90, 1033–
40, 1062–1120, 1136–55.                                                   
rulemaking,  while  others  were  outside  the  scope  of  its  evaluation  of  the  revised 
standards.  AR 8821.  Given the overlap between concerns about the standards’ impact 

on aquatic life and wild rice and the Tribes’ treaty-reserved rights, EPA explained that its 
evaluation of the standards’ impact on aquatic life and wild rice also applied to the Tribes’ 
comments related to their Tribal reserved rights.  AR 3925 at n.21.       
  As the Court found above, EPA’s conclusion that the Bands’ rights will remain 

protected by separate, unaffected water quality standards is not unreasonable.  The 
revisions to the water quality standards involve the evaluation of technical science and 
data, an area of agency expertise.  The Court therefore is not in a position to question the 

agency’s rational decision to approve the revised Class 3 and 4 standards based on the 
conclusion that other, unaffected, EPA-approved water quality standards will protect 
other designated uses.  As a result, the Court finds that EPA sufficiently considered the 
revised water quality standards’ impact on the Bands’ treaty-reserved rights. 

  To be sure, the EPA could and should have more meaningfully interacted with the 
Bands.  The Bands are sovereign, federally recognized entities.  And they are authorized 
to administer water quality standards in the same way that states do.  

(e).  
It is disappointing that EPA’s idea of meaningful consultation with the Tribes consists of 

two virtual meetings and one set of written comments.  Yet the law does not clearly 
require more, even if that would be the Court’s preference.  And as above, the Court’s 
review of EPA’s action is very deferential.  State Farm, 

.  Accordingly, EPA’s 
approval was not arbitrary or capricious.                                 

  D.   Minnesota’s Implementation of Its Water Quality Standards       
  The Bands claim that EPA acted arbitrarily by failing to meaningfully consider 
Minnesota’s implementation and enforcement of its existing water quality program.  See 
Am. Wild Horse Pres. Campaign v. Perdue, 

 (D.C. Cir. 2017) (“[The] 

standard obligates the agency to examine all relevant factors and record evidence, and to 
articulate a reasoned explanation for its decision.”).  Primarily, the Bands contend that 
EPA based its approval on an unrealistic assumption that Minnesota’s implementation of 
narrative criteria would result in more stringent limitations in NPDES permitting and other 

regulatory decisions.10  Yet, the Bands assert, the stark reality is that the State has 
struggled for years to implement and enforce its water quality standards, a fact which 
MPCA itself admits.  AR 984 (“MPCA recognizes that many older narrative standards are 

not regularly enforced, in that they are not generally incorporated into permit limits.”); 



  10  The  Bands  also  attack  the  adequacy  of  the  narrative  translators  for  industrial 
consumption and irrigated agriculture uses, primarily because they now evaluate compliance 
with water quality standards at the point an industrial or agriculture user withdraws water rather 
than at the point of pollution discharge.  Under this method, the Bands assert there is no way to 
assess the overall health of the water as it relates to aquatic life and wild rice.  However, the 
narrative translators are in place to protect industrial consumption and irrigated agriculture uses, 
not aquatic life and wild rice.  Industrial and agricultural uses occur at the point the industrial or 
agricultural user withdraws water, so the overall health of the water between a discharge point 
and a withdrawal point is not relevant to protecting industrial or agricultural users because they 
do not make instream uses of the waters.                                  
see also AR 7828 (reporting sulfate discharges from Keetac mine that exceed the 10 mg/L 
sulfate limit in the permit).                                             

  The  Court  sympathizes  with  the  Bands’  concerns  about  Minnesota’s 
implementation and enforcement of narrative standards.  Indeed, 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.  However, EPA determined that despite the State’s implementation 
struggles, Minnesota’s implementation plans to ensure that its existing narrative and 
biological  criteria  for  aquatic  life  and  wild  rice  would  appropriately  protect  their 

designated uses were sufficient.  In fact, the plan to protect aquatic life was developed 
using a method described in EPA’s own benchmark study, which was extensively peer-
reviewed.  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.                                                   
  More importantly, whether Minnesota has been struggling to implement and 
enforce its water quality standards is not an explicit factor that EPA must consider in 
deciding whether to approve a state’s water quality standards.  See 

(a).  

The agency is charged with determining whether the water quality standards meet the 
regulatory requirements to, among other things, adequately protect their designated 
uses,  not  how  the  State  may  implement  and  enforce  them.    While  feasibility  of 
implementing narrative standards perhaps should be considered in the approval process, 
the regulations do not require such consideration.  Moreover, whether the State will 

struggle to implement the revised water quality standards is premature.  Therefore, the 
Court finds that Minnesota’s implementation and enforcement of its previous water 
quality standards does not make EPA’s approval of the revised standards arbitrary or 
capricious.                                                               

                        CONCLUSION                                     
  Though the Court is in substantial agreement with the Bands’ concerns regarding 
the revisions’ potential to impact aquatic life, wild rice, and their treaty-reserved rights to 
use Minnesota waters, the revised water quality standards involve the evaluation of 

technical science and data, of which EPA and MPCA are experts.  On the record before 
the Court, EPA’s decision is rational, and the Court’s hands are severely tied under the 
APA’s deferential standard of review.                                     

  Because  the  agency  determined  that  current  science  does  not  support  the 
retention  or  establishment  of  numeric criteria  to  protect  industrial consumption  or 
irrigated agriculture uses, EPA’s approval of the State’s removal of the numeric criteria 
was not arbitrary or capricious.  And because EPA concluded that aquatic life and wild 

rice, as well as the Bands’ treaty-reserved rights, would continue to be protected by 
separate, unaffected water quality standards tailored to those ends, neither was EPA’s 
decision arbitrary or capricious on those bases.  Finally, whether Minnesota has been 
struggling to implement and enforce its water quality standards is not an explicit factor 
that EPA must consider in deciding whether to approve a state’s water quality standard, 
and thus not a basis upon which the Court can overturn the agency’s decision.  Asa result, 
it was not arbitrary or capricious for EPA to approve  

.0223 and  

.0224. 

   Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that: 
1.  Plaintiffs’ Motion for Summary Judgment [Docket No. 88] is DENIED; 
2.  Defendants’ Motion for  Summary  Judgment  [Docket No. 99] is GRANTED; 
3.  Intervenor-Defendants Coalition of Greater Minnesota Cities, Range Association of 
   Municipalities  and  Schools,  Minnesota  Chamber of Commerce,  Cleveland-Cliffs, 
   Inc., and United States Steel Corporation’s Motion for Summary Judgment [Docket 
   No. 103] is GRANTED; and 
4.  Intervenor Defendant Minnesota Pollution Control Agency’s Motion for Summary 
   Judgment [Docket No. 107] is GRANTED. 

LET JUDGMENT BE ENTERED ACCORDINGLY. 

DATED:  March 29, 2024                            dot. KM. (shin 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                          United States District Judge 

                                  -35- 

                UNITED STATES DISTRICT COURT                          
                   DISTRICT OF MINNESOTA                              
GRAND PORTAGE BAND OF LAKE                                               
SUPERIOR CHIPPEWA and FOND DU LAC                                        
                                   Civil No. 22-1783 (JRT/LIB)        
BAND OF LAKE SUPERIOR CHIPPEWA,                                          


                    Plaintiffs,                                       
                              ORDER DENYING PLAINTIFFS’ MOTION        
v.                                 FOR SUMMARY JUDGMENT AND              
                                 GRANTING DEFENDANTS’ AND             
UNITED STATES ENVIRONMENTAL      INTERVENOR-DEFENDANTS’ MOTIONS          
PROTECTION AGENCY and MICHAEL S.     FOR SUMMARY JUDGMENT                
REGAN, Administrator of United States                                    
Environmental Protection Agency,                                         

                   Defendants,                                        

v.                                                                       

COALITION OF GREATER MINNESOTA                                           
CITIES, RANGE ASSOCIATION OF                                             
MUNICIPALITIES AND SCHOOLS,                                              
MINNESOTA CHAMBER OF COMMERCE,                                           
CLEVELAND-CLIFFS, INC., UNITED STATES                                    
STEEL CORPORATION, and MINNESOTA                                         
POLLUTION CONTROL AGENCY,                                                

          Intervenor-Defendants.                                      

 Ashley  Bennett,  EARTHJUSTICE,  4215  South  Lucile  Street,  Seattle,  WA 
 98118; Janette K. Brimmer, EARTHJUSTICE, 810 Third Avenue, Suite 610, 
 Seattle, WA 98104; Sara Van Norman, VAN NORMAN LAW, PLLC, 400 East   
 Fourth Street, Suite 401, Minneapolis, MN 55415, for Plaintiffs.     
  Sean W. Copeland, FOND DU LAC LEGAL AFFAIRS, 1720 Big Lake Road,     
  Cloquet,  MN  55720,  for  Plaintiff  Fond  du  Lac  Band  of  Lake  Superior 
  Chippewa.                                                            

  Perry Rosen, DEPARTMENT OF JUSTICE ENVIRONMENTAL AND NATURAL         
  RESOURCES DIVISION, 601 D Street Northwest, Room 2434, Washington,   
  D.C. 20047, for Defendants.                                          

  Haley L. Waller Pitts and Nicole M. Moen, FREDRIKSON & BYRON, 60 South 
  Sixth Street, Suite 1500, Minneapolis, MN 55402; Jeremy P. Greenhouse, 
  FREDRIKSON  &  BYRON,  P.A.,  200  South  Sixth  Street,  Suite  4000, 
  Minneapolis, MN 55402, for Intervenor-Defendants Coalition of Greater 
  Minnesota  Cities,  Range  Association  of  Municipalities  and  Schools, 
  Minnesota Chamber of Commerce, Cleveland-Cliffs, Inc., and United States 
  Steel Corporation.                                                   

  Colin  Patrick  O’Donovan  and  Oliver  J.  Larson,  MINNESOTA  ATTORNEY 
  GENERAL’S OFFICE, 445 Minnesota Street, Suite 900, St. Paul, MN 55101, 
  for Intervenor-Defendant Minnesota Pollution Control Agency.         

  Arielle Wagner, David  J. Zoll,  and Laura Matson,  LOCKRIDGE  GRINDAL 
  NAUEN PLLP, 100 Washington Avenue South, Suite 2200, Minneapolis, MN 
  55401, for Amici Curiae Bois Forte Band of Chippewa, Lower Sioux Indian 
  Community,  Leech  Lake  Band  of  Ojibwe,  Mille  Lacs  Band  of  Ojibwe, 
  Minnesota  Chippewa  Tribe,  Prairie  Island  Indian  Community,  Red  Lake 
  Nation, Upper Sioux Community, and White Earth Nation.               


  Plaintiffs Grand Portage Band of Lake Superior Chippewa and Fond du Lac Band of 
Lake  Superior  Chippewa  (the  “Bands”)  bring  this  action  against  Defendants  the 
Environmental Protection Agency and its director, Michael S. Regan (collectively “EPA”).  
The Bands claim that EPA’s approval of Minnesota’s (the “State”) 2021 revised water 
quality standards was arbitrary, capricious, and contrary to the Clean Water Act, 

 et seq., and implementing regulations, all in violation of the Administrative 
Procedure Act (“APA”), 

 et seq.  The Bands ask the Court to vacate EPA’s 
approval of the revised standards.                                        

  This case primarily presents the question of what is required of EPA in approving 
revisions to state water quality standards to ensure that other downstream water uses 
and Tribes’ treaty-reserved rights are protected.  Until 2021, 

.0223 and 

.0224 provided statewide numeric limits of pollutants allowed in Minnesota 

waters  used  for  industrial  consumption  and  irrigated  agriculture.    Those  standards’ 
numeric limits incidentally protected aquatic life and wild rice by limiting salty pollutants 
that threaten the health and survival of aquatic life and wild rice, which are of particular 

importance to the Bands.                                                  
  The revisions replaced quantitative standards with qualitative narrative standards 
that describe the characteristics that Minnesota waters must have to protect industrial 
consumption or irrigated agriculture uses, and which are applied on a site-specific basis 

through State-issued water use permits.  The Bands challenge EPA’s approval of the 
revised standards, in part, because the agency failed to meaningfully consider the adverse 
impact that removing the numeric limits in the revised standards may have on other 
downstream water uses, particularly aquatic life and wild rice, as well as the Bands’ treaty 

reserved rights to use Minnesota waters.                                  
  In approving the revised water quality standards, EPA determined that aquatic life 
and wild rice, as well as the Bands’ treaty-reserved rights, would continue to be protected 
by separate, unaffected water quality standards that are specifically crafted to protect 
aquatic life and wild rice in Minnesota waters.  In waters used for industrial consumption 

or irrigated agriculture as well as for aquatic life or wild rice, the agency concluded that 
the  revised  standards  and  separate,  unaffected  standards  would  apply  together  to 
protect the most sensitive use, ensuring that all designated uses are protected. 
  Because EPA has supplied a rational basis for its determination that the revised 

water quality standards will protect their designated uses, are scientifically sound, and 
that the most sensitive uses will be protected in waters with multiple uses, the Court finds 
that EPA’s approval was not arbitrary, capricious, or contrary to the Clean Water Act.  

Accordingly, the Court will deny the Bands’ motion for summary judgment and grant 
EPA’s and Intervenor-Defendants’ motions for summary judgment.            

                        BACKGROUND                                     
I.   STATUTORY AND REGULATORY FRAMEWORK                                   

  Congress enacted the Clean Water Act (or “the Act”) to restore and maintain the 
chemical, physical, and biological integrity of waters in the United States.  

(a).  The states, federal government, and Tribes partner to carry out the Act’s 
objectives.  Arkansas v. Oklahoma, 

 (1992); 

(e); 

.  The Act establishes two sets of water quality measures: (1) effluent limitations, 
which are promulgated by EPA and restrict the quantity of pollutants discharged from 
identifiable sources of pollution; and (2) water quality standards, which are generally 
promulgated by the states and establish the desired conditions of a waterbody.  Arkansas, 

; 

, 1313, 1314.                           

  States  must establish water quality standards that  specify “designated uses,” 
which are uses of water that require protection under the standards, and water quality 
“criteria,” which set pollutant limits or the minimum conditions necessary to protect the 
designated uses.  

(c)(2)(A); 

(f), 131.11(a)(1).  Water 

quality criteria can be numeric, meaning they provide quantitative, measurable limits of 
pollutants  allowed  in  a  waterbody,  or  narrative,  meaning  they  provide  qualitative 
descriptions of the characteristics of a waterbody that are necessary to protect the 

designated uses.  See 

(b).  Numeric criteria are generally favored, and 
implementing  regulations  instruct  states  to  adopt  narrative  criteria  where  numeric 
criteria cannot be established or to supplement numeric criteria.  

 § 131.11(b)(2). 
  One of the primary methods of implementing water quality standards is through 

National Pollutant Discharge Elimination System (“NPDES”) permits, which states issue to 
dischargers of pollutants.  Arkansas, 503 U.S. at 101–02.  EPA has delegated authority to 
issue Minnesota NPDES permits to MPCA.  See In re Alexandria Lake Area Sanitary Dist. 
NPDES/SDS Permit No. MN0040738, 

 (Minn. 2009) (citing 

, subd. 5; 

(a)).  Polluters are prohibited from discharging 
effluents into a waterbody unless they have an NPDES permit.  

; see also 

(a).  NPDES permits provide conditions that will result in compliance with 
state water quality standards.  

(a)(1); 

(d)(1).  Narrative 
criteria are generally more difficult to implement in a permit than numeric criteria.  In re 

Alexandria, 

 (citing Am. Paper Inst., Inc. v. United States Env’t Prot. 
Agency, 

, 350 (D.C. Cir. 1993)).                              
  EPA must approve a state’s water quality standards before they become effective 
and must make certain determinations in the review process.  

(c)(2)(A), 

(c)(3); 

.  These determinations include:  (1) whether the state has adopted 
designated uses that are consistent with the Clean Water Act; (2) whether the state has 
adopted  criteria  that  protect  the  designated  use;  (3)  whether  the  state  followed 

applicable procedures for revising or adopting standards; (4) whether the standards are 
based on appropriate technical and scientific data; and (5) whether the standards meet 
the submission requirements provided in 

.  

(a).  Water 
quality standards must protect the designated use for which they are crafted, be based 

on sound scientific rationale, ensure the attainment and maintenance of downstream 
water quality standards, and protect the most sensitive use in waters with multiple 
designated uses.  

(b), 131.11(a).                      
II.  FACTUAL BACKGROUND                                                   

  A.   Minnesota’s 2021 Water Quality Standards Revisions              
  Minnesota’s water quality standards establish seven types of designated uses, 
including aquatic life and recreation (Class 2), industrial consumption (Class 3), and 
agriculture and wildlife (Class 4).  Minn R. 7050.0140.  Each classification establishes its 
own set of water quality criteria necessary to protect the applicable designated use(s). 

  The previous industrial, agricultural and wildlife use classes and their associated 
standards were established in the late 1960s.  AR 811–12.1  There have been some 
revisions over the years, but for the most part the numeric standards have remained the 
same since the rules were established in the 1960s.  AR 812.  In 2021, after a decade-long 

process,  MPCA  amended  Minnesota’s  water  quality  standards  to  revise  the  State’s 
designated uses and water quality criteria at Minn R. 7050.0223 to protect industrial 
consumption uses (Class 3) and the State’s criteria at 

.0224 to protect 

agriculture and wildlife uses (Class 4).  AR 802, 3903.                   
         1.  Industrial Consumption Use                                
  Prior  to  the  2021  revisions,  Minnesota  divided  Class  3  into  four  industrial 
subclasses with distinct numeric and narrative criteria based on the necessary level of 
treatment before the water is used for industrial purposes.  AR 811–13.  When reviewing 

the Class 3 standards, MPCA determined that industrial water appropriators are primarily 
concerned about consistency and quantity of water intake and are willing to treat water 
to achieve their specific water quality needs.  AR 1024–25.  Because technologies had 

significantly improved for industrial appropriators to treat their intake water, MPCA 
concluded that the previous numeric criteria that protected industrial consumption use 


  1 All citations to the Administrative Record are from ECF No. 22-1783. 
were no longer necessary and thus lacked a sound scientific rationale.  AR 811–813, 1039–
40.  After considering survey data and the limited research that exists on industrial water 

treatment  needs,  MPCA also determined it  was impossible to  establish  new  single, 
statewide numeric values for chlorides, hardness, and pH that would protect all waters 
used for industrial consumption purposes because of the varied water treatment needs 
between industrial appropriators.  AR 1038–39.                            

  Thereafter, MPCA re-designated the Class 3 sub-classes as a single Class 3 use 
classification and replaced all numeric criteria with a single narrative standard.  AR 814.  
The narrative standard incorporates language from the pre-2021 descriptions of the 

overall class and subclasses and requires that Class 3 waters be of such quality as to permit 
their use for industrial purposes to avoid severe fouling, corrosion, or scaling.  

.0223 Subp. 2.  MPCA also adopted a “narrative translator,” which translates the 
narrative standards into effluent limitations for permitting depending on the unique 

needs of the water operation at issue.  AR 1040–41, 8715–22.  Narrative translators assist 
the State in ensuring that narrative criteria are attained by converting the protective goals 
of narrative standards into enforceable, numeric wastewater effluent limitations that 
protect the designated use(s).  AR 1175.  The Class 3 translator helps determine whether 

a discharger must have an effluent limit to protect a downstream industrial use.  See 

.0260.  MPCA also changed its enforcement of industrial water quality 
standards to assess compliance at the point that an industrial user withdraws water 
instead of at the discharge point.  Minn R. 7053.0205 Subp. 7(E); 7053.0260 Subp. 3(B). 

         2.  Agriculture and Wildlife Use                              
  The agriculture and wildlife use classification is divided into multiple subclasses, 
including irrigated agriculture (Class 4A) and livestock and wildlife (Class 4B).  

.0224.  The Bands’ challenge only relates to the Class 4A revisions.  The Class 4A 

irrigated agriculture subclass establishes criteria that are generally applicable to all waters 
used to irrigate crops and vegetation, as well as criteria that are specifically applicable to 
waters used for wild rice production.  Minn R. 7050.0224 Subp. 2.         
            a.  General Criteria                                       
  Prior to the 2021 revisions, the general water quality criteria for Class 4A included 

numeric and narrative criteria.  AR 1054.  The numeric criteria established limits for 
bicarbonates, pH, specific conductance, total dissolved salts, and sodium (collectively 
“salt pollutants”), as well as sulfates and boron.  AR 813, 1054.  Upon review of the Class 

4A standards, MPCA determined that the prior numeric criteria for the salt pollutants 
were no longer scientifically defensible.  AR 1058–62.  The wide variety of irrigated 
agriculture  water  needs,  which  vary  based  on  crop  type,  soil  type,  soil  drainage 
management techniques, precipitation patterns, irrigation practices, and soil mineral 

content,  precluded  the  adoption  of  single,  statewide  numeric  criteria  for  the  salt 
pollutants that would protect irrigated agriculture use.  

  MPCA thus concluded that the 
best way to protect irrigated agriculture use was through a narrative standard and robust 
implementation process.  Id.; AR 802.                                     

  As a result, MPCA removed the numeric criteria for the salt pollutants and retained 
the  previous  narrative  criteria,  with  some  minor  revisions.    AR  3911–12;  

.0224 Subp. 2.  The narrative standard now requires that Class 4A waters be of such 
quality “as to permit their use for irrigation without significant damage or adverse effects 

upon any crops or vegetation usually grown in the waters or area.”  

.0-224 
Subp. 2.  MPCA left in place the numeric criteria for boron, radioactive materials, and 
sulfates.  MPCA also adopted a narrative translator to establish numeric thresholds for 

the  salt  pollutants.    AR  1121–32,  8723–31.    The  Class  4A  translator  sets  numeric 
thresholds for sodium absorption ratio and specific conductance for sensitive and non-
sensitive crops to ensure that waters used for irrigation will not detrimentally increase 
soil salinity in the root zone.  AR 8730, 1128–29; see also 

.0263.  MPCA also 

changed its enforcement of irrigation water quality standards to assess compliance at the 
point at which water is withdrawn for irrigation.  

.0205 Subp. 7(D); 

.0263 Subp. 3(B).                                                     
            b.  Specific Criteria for Wild Rice                        

  Minnesota has numeric and narrative criteria that specifically protect wild rice, 
which it did not revise in the 2021 revision package.  See 

.0224 Subp. 2.  The 
numeric criteria limits sulfate to 10 mg/L in waters used for production of wild rice during 
periods when the rice may be susceptible to damage by high sulfate levels.  

  The 
narrative criteria requires that the quality of the waters and aquatic habitat for wild rice 

not be materially impaired or degraded.  

.0224 Subp. 1.           
         3.  Aquatic Life and Recreation Use                           
  Minnesota also has numeric and narrative criteria that protect aquatic life, which 
it did not revise in 2021.  

.0140 Subp. 3, 7050.0222.  Aquatic life use refers 

to waters that support or may support aquatic biota.  

.0140 Subp. 3, 
7050.0222.  The Class 2 standards establish numeric criteria for over 70 substances, 
including salt pollutants like chloride, which is limited to 230 mg/L in Class 2 waters.  

.0222.  Class 2 also establishes narrative criteria and biological criteria, which use 

field surveys to assess the condition of biological communities in a waterbody to protect 
aquatic life.  

.0222 Subps. 2, 3, 7(A), 2d, 3d, 4d.          
  The industrial discharge of salty pollutants can threaten the health and survival of 
aquatic life.  See, e.g., AR 2103, 6025–37, 6074–6133.  In promulgating the revised water 

quality standards at issue in this case, MPCA recognized such concerns.  AR 806–07, 851.  
However, MPCA anticipated that the revisions would not result in harmful increases in 
salt pollutants because of the detailed implementation procedures to attain the revised 

Class 3 and 4 narrative standards, as well as the Class 2 chloride standard that remains 
unaffected by the 2021 rulemaking.  AR 851.  Additionally, MPCA shared steps that it is 
taking to protect Class 2 aquatic life uses while research is underway to determine an 
appropriate numeric standard for future Class 2 rulemaking.  AR 1193.  The interim 
approach is grounded in the Class 2 narrative criteria and will apply a translator to 
“translate”  the  narrative  criteria  into  more  workable,  numeric  values  for  permits, 

specifically for chloride and sulfate.  See AR 1193–1207.                 
  B.  EPA’s Approval of Minnesota’s 2021 Revisions                     
  In August 2021, MPCA submitted its rule revision package to EPA.  AR 3903, 3499.  
The rule revision package contained MPCA’s technical analysis, scientific studies and 

surveys it considered, the public comments it received, and MPCA’s response to public 
comments.  AR 1–3901.                                                     
  In reviewing the package, EPA invited representatives of the eleven Tribes in 
Minnesota to participate in two conference calls to consult on the revisions.  AR 3946, 

8820.  Five Tribes participated on either one or both calls, and one Tribe also submitted 
written comments.  AR 3946.  EPA summarized the issues identified by the Tribes during 
the consultation and discussed how EPA considered those concerns in its review of the 
revisions.  AR 8820–32.                                                   

  On October 8, 2021, EPA approved MPCA’s revisions to its water quality standards.  
AR 3947–48.  EPA explained its decision in a 44-page approval letter that cites scientific 
studies the agency considered and public comments it received.  See generally AR 3903–

46, 3949–8774, 8983–10078.  EPA acknowledged concerns that removing industrial and 
agricultural numeric criteria that incidentally protected aquatic life and wild rice would 
negatively  impact  aquatic  life,  wild  rice,  and  human  health.    See  AR  3925–32.    It 
nonetheless concluded that existing water quality standards for aquatic life and wild rice, 
which were unaffected by the rulemaking at issue in this case, would continue to protect 
those designated uses, especially when they are the more sensitive use.   

  Starting with aquatic life, EPA considered whether it was scientifically possible for 
MPCA to derive numeric criteria to protect aquatic life from the effects of the salty 
pollutants  beyond  the  230  mg/L  numeric  limit  for  chloride  that  MPCA  has  already 
adopted.  AR 3927; see also 

.0222.  But because “ion toxicity is complex and 

dependent on multiple factors,” deriving numeric criteria to protect aquatic life “is a 
matter of evolving science,” not yet susceptible to quantitative resolution.  AR 3927.  
Furthermore, the agency noted that given the variability of water quality needs for 

industrial consumption and irrigated agriculture uses, it is “not possible” to determine 
whether aquatic life is the most sensitive use with respect to salty pollutants in waters 
also used for industrial consumption and/or irrigated agriculture uses.  AR 3928.  The 
agency determined that the State’s existing narrative and biological criteria for aquatic 

life had been “duly adopted, approved by EPA and effective for all [Clean Water Act] 
purposes”  and  were  therefore  independently  adequate,  irrespective  of  the  revised 
standards, to protect aquatic life when it is the more sensitive use.  AR 3928. 
  EPA also considered MPCA’s proposed methods of implementing the existing Class 

2 narrative and biological criteria to combat the salty pollutants, methods which were 
developed from an EPA manual.  Id.; see also AR 1193–1287.  Though EPA did not 
specifically review these methods to determine whether they protect aquatic life, it did 
note that MPCA’s proposed implementation methods “are based on accepted methods 
for identifying effects to aquatic life.”  AR 3929 n.27.  Ultimately, EPA concluded that “in 

the absence of the numeric criteria for ions associated with Class 3 and 4 that Minnesota 
is removing, Minnesota’s existing narratives protect against the types of harm excess ions 
may present to aquatic life in waterbodies designated for aquatic life.”  AR 3929.   
  Turning to wild rice, EPA acknowledged the commenters’ primary concern about 

increased sulfate levels, which is especially harmful to wild rice.  But the wild rice numeric 
limit for sulfate, 10 mg/L, would be unaffected by the rulemaking because it remains in 
effect for “water used for production of wild rice.”  AR 3930.  EPA then considered 

whether it was possible for MPCA to derive numeric criteria to protect aquatic plants from 
the effects of the other salt pollutants.  Similar to aquatic life, EPA determined that such 
criteria  are  a  “matter  of  evolving  science”  requiring  “additional  data  and  analysis 
regarding wetland plant responses,” especially in the absence of EPA recommendations.  

  And as with aquatic life, it is “not possible” to determine whether wild rice is the most 
sensitive use with respect to the salty pollutants in waters also used for variable industrial 
consumption and/or irrigated agriculture uses.  

                       
  At any rate, the agency determined that the State’s existing narrative criteria for 

irrigated agriculture protects wild rice where it is cultivated, and that the specific narrative 
criteria for aquatic life, including wild rice, are also adequately protective of wild rice.  AR 
3931.  EPA also noted MPCA’s proposed implementation methods for these criteria.  

  
EPA ultimately concluded that the existing water quality standards protect against the 
salty pollutants that may harm wild rice.  

                            

  Furthermore,  for  both  aquatic  life  and  wild  rice  EPA  noted  that  the  revised 
industrial and agricultural water quality standards were never intended to protect aquatic 
life or wild rice.  Consequently, “there was not then and there is not now a sound scientific 
rationale to support a conclusion that the criteria that Minnesota has removed would be 

protective of aquatic life [or wild rice] uses.”  AR 3929, 3932.  Additionally, EPA noted its 
anticipation that “greater reliance on implementation of Minnesota’s approved narrative 
criteria  will  result  in  its  NPDES  permitting  and  other  regulatory  decisions  including 

limitations more stringent than ones based on the now-removed criteria, to the extent 
that best available current or evolving science indicates that such more stringent limits 
would protect” aquatic life and wild rice.  AR 3929, 3932.                
  C.  The Bands’ Treaty Reserved Rights                                
  The Bands are sovereign, federally recognized Indian Tribes with reservations in 

northern Minnesota.  (Compl. ¶ 9, July 14, 2022, Docket No. 1.)  Fish and wild rice in 
Minnesota waters hold great cultural, economic, subsistence, ecological, medicinal, and 
spiritual significance to the Bands.  (Decl. of Thomas Ethan Howe ¶¶ 9, 18–21, May 10, 

2023, Docket No. 91; Decl. of April M. McCormick ¶¶ 6–10, May 10, 2023, Docket No. 92.)  
The Bands have rights to harvest wild rice and other resources that are protected under 
treaties and federal law.  Specifically, the 1854 Treaty of LaPointe and 1837 Treaty with 
the Chippewa establish the Bands’ usufructuary rights across off-reservation lands and 
waters.  

 (Sept. 30, 1854); 

 (July 20, 1837).     

  EPA authorizes the Bands to administer water quality standards in the same way 
as states.  

(e).2  The Bands have adopted their own water quality 
standards to combat pollution and preserve waters that flow through their reservations, 
which include criteria to protect aquatic life and wild rice.3            

III.  PROCEDURAL HISTORY                                                  
  The Bands initiated this action against EPA.  (See Compl.)  Intervenor-Defendants 
Minnesota Pollution Control Agency (“MPCA”) and Coalition of Greater Minnesota Cities, 
Range Association of Municipalities and Schools, the Minnesota Chamber of Commerce, 

Cleveland-Cliffs  Inc.,  and  United  States  Steel  Corporation  (collectively  “Regulated 
Entities”) moved to intervene as defendants, which the Court granted.  (Order at 18, Nov. 
21, 2022, Docket No. 57.)  The Bands and EPA filed cross motions for summary judgement 

on all causes of action.  (Pls.’ Mot. Summ. J., May 10, 2023, Docket No. 88; Defs.’ Cross 
Mot. Summ. J., June 21, 2023, Docket No. 99.)  The nine other federally recognized Tribes 
in Minnesota moved for leave to file an amici curiae brief in support of the Bands’ 



  2  U.S.  E.P.A.,  Tribes  Approved  for  Treatment  as  a  State  (TAS), 
https://www.epa.gov/tribal/tribes-approved-treatment-state-tas (last visited Mar. 13, 2024). 
  3 See U.S. E.P.A., Tribal Water Quality Standards, Grand Portage Band of Minnesota 
Chippewa, https://www.epa.gov/wqs-tech/water-quality-standards-regulations-grand-portage-
band-minnesota-chippewa (last visited Feb. 29, 2024); EPA, Tribal Water Quality Standards, Fond 
du  Lac  Band  of  the  Minnesota  Chippewa,  https://www.epa.gov/wqs-tech/water-quality-
standards-regulations-fond-du-lac-band-minnesota-chippewa (last visited Feb. 29, 2024). 
summary judgment motion, which the Court granted.4  (Mot. to Appear as Amici Curiae, 
June 2, 2023, Docket No. 95; Order, June 7, 2023, Docket No. 97.)  The MPCA and 

Regulated Entities filed separate motions for summary judgment.  (Cross Mot. Summ. J., 
June 30, 2023, Docket No. 103; Cross Mot. Summ. J., July 2, 2023, Docket No. 107.) 
                         DISCUSSION                                    
I.   STANDARD OF REVIEW                                                   
  A.  Summary Judgment                                                 

  Summary judgment is appropriate when there are no genuine issues of material 
fact, and the moving party can demonstrate that it is entitled to judgment as a matter of 
law.  Fed. R. Civ. P. 56(a).  A fact is material if it might affect the outcome of the suit, and 
a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a 

verdict for the nonmoving party.  Anderson v. Liberty Lobby, Inc., 

 (1986).  
A court considering a motion for summary judgment must view the facts in the light most 
favorable to the nonmoving party and give that party the benefit of all reasonable 

inferences to be drawn from those facts.  Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

 (1986).  The nonmoving party may not rest on mere allegations or 



  4 The Court appreciates hearing from the Bois Forte Band of Chippewa, Lower Sioux Indian 
Community, Leech Lake Band of Ojibwe, Mille Lacs Band of Ojibwe, Minnesota Chippewa Tribe, 
Prairie Island Indian Community, Red Lake Nation, Upper Sioux Community, and White Earth 
Nation.    The  amici  curiae  brief  provided  helpful  context  and  arguments  for  the  Court’s 
consideration.  Because of the overlap of the amici curiae arguments with the Bands’, the Court 
will address all arguments together.                                      
denials but must show, through the presentation of admissible evidence, that specific 
facts exist creating a genuine issue for trial.  Anderson, 

 (discussing Fed. R. 

Civ. P. 56(e)).  “The mere existence of a scintilla of evidence in support of the plaintiff’s 
position will be insufficient; there must be evidence on which the jury could reasonably 
find for the plaintiff.”  

.                                     
  When a court reviews agency action under the APA, the entire case on review is a 

question of law.  Am. Bioscience, Inc. v. Thompson et al., 

 (D.C. Cir. 
2001); Mahnomen Cnty. v. Bureau of Indian Affs., 

, 1255–56 (D. Minn. 
2009).  The question is whether, based on the administrative record, the agency’s action 

was lawful.  See Mahnomen Cnty., 

.  Thus, resolution at the 
summary judgment stage is likely.  Here, the parties agree there are no genuine issues of 
material fact and  that the only question is a legal one: whether EPA’s approval of 
Minnesota’s revised water quality standards violated the Clean Water Act and the APA.   

  B.  Administrative Procedure Act                                     
  The Court’s review of agency decisions is limited by the APA.  Voyageurs Nat’l Park 
Ass’n v. Norton, 

 (8th Cir. 2004).  The APA allows a court to set aside an 
agency’s decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in 
accordance with the law.”  

(2)(A); Gipson v. I.N.S., 

 (8th Cir. 

2002) (quoting id.).  “The scope of review under the ‘arbitrary and capricious’ standard is 
narrow and a court is not to substitute its judgment for that of the agency.”  Motor Vehicle 
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 

 (1983).  An 
agency decision is not arbitrary and capricious if it “examine[d] the relevant data and 
articulate[d] a  satisfactory explanation  for its action including a rational connection 

between the facts and the choice made.”  Simmons v. Smith, 

 (8th Cir. 
2018) (quoting State Farm, 

).  A court will affirm the agency’s findings of 
fact if it “is supportable on any rational basis.”  Foster v. Vilsack, 

 (8th 
Cir. 2016) (citing Voyageurs, 

).                           

  The Bands bear the burden of demonstrating that EPA’s action was arbitrary and 
capricious.  United States v. Massey, 

 (8th Cir. 2004).  If the Court finds 
the Bands have not met their burden, it will validate EPA’s approval and grant EPA’s and 

the Intervenor-Defendants’ motions for summary judgment on that basis.    
II.  THE BANDS’ STANDING                                                  
  As an initial matter, the Regulated Entities assert that the Bands lack standing to 
challenge the revised Class 3 standards.5  Because the purpose of the revised Class 3 

standards is to protect industrial consumption use and because the Bands have not 
alleged an injury to industrial use, the Regulated Entities claim the Bands have failed to 
allege an injury within their protected zone of interests.  The Court disagrees. 
  Prudential standing requirements limit the exercise of federal jurisdiction, in part, 

by requiring that “a plaintiff seeking judicial review must also show the injury complained 



  5 The Regulated Entities and other defendants do not contest the Bands’ standing to 
challenge the revised Class 4 standards.                                  
of falls within the zone of interests sought to be protected by the statutory provision.”  
Rosebud Sioux Tribe v. McDivitt, 

 (8th Cir. 2002).  Because the Bands 

are not themselves the subject of EPA’s regulatory action, they lack standing only if their 
interests “are so marginally related to or inconsistent with the purposes implicit in the 
statute that it cannot reasonably be assumed that Congress intended to permit the suit.”  

 (quoting Clarke v. Sec. Indus. Ass’n, 

 (1987)).  “Whether a plaintiff’s 

interest is arguably protected by the statute within the meaning of the zone-of-interests 
test is to be determined not by reference to the overall purpose of the Act in question but 
by reference to the particular provision of law upon which the plaintiff relies.” 

 (cleaned 

up).                                                                      
  Here, the Bands assert standing as sovereign, federally recognized Indian Tribes 
with  reservations  in  northern  Minnesota  and  treaty-reserved  usufructuary  rights  to 
Minnesota waters.  The Bands claim their “existential interest in protecting Minnesota 

waters and their treaty-reserved rights to hunt, fish, harvest wild rice, and gather food 
and plants” fall within the zone of interests protected by the Clean Water Act.  (Pl.’s Mem. 
Supp. Mot. Summ. J. at 27, May 10, 2023, Docket No. 90.)                  
  The plain language of the Clean Water Act’s provisions reflects a commitment to 

ensure  that  states  establishing  water  quality  standards  holistically  evaluate  such 
standards’ impact and ensure they preserve existing uses.  See 

(c)(2)(A) 
(“Whenever the State revises or adopts a new standard, . . . [s]uch standards shall be 
established  taking into consideration their  use  and  value for  public water  supplies, 
propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and 

other purposes.”).  The Act’s regulations reflect the same commitment.  See 

(b) (providing that states “shall take into consideration the water quality standards 
of downstream waters and shall ensure that its water quality standards provide for the 
attainment and maintenance of the water quality standards of downstream waters”).   

  The Bands’ treaty-reserved rights and existential interest in protecting Minnesota 
waters are not “so marginally related to or totally inconsistent with the purposes implicit” 
in the Clean Water Act to fall outside the protected zone of interests.  Rosebud, 

 (quoting Clarke, 

).  Revisions to the Class 3 standards will allegedly 
harm the Bands’ ability to exercise their treaty-reserved rights.  Accordingly, the Court 
finds that the Bands have standing to challenge the Class 3 standards.    
III.  RECORD ON REVIEW                                                    

  The Bands request that the Court judicially notice several documents that fall 
outside the administrative record because those documents contain information made 
publicly available by government entities.  (See Aff. of Ashley Bennett ¶¶ 3–9, Exs. A–F, 
Aug. 2, 2023, Docket No. 114.)  The Court cannot do so.                   

  Under Rule 201 of the Federal Rules of Evidence, a court may take judicial notice 
of facts that are not reasonably disputed if certain criteria are met.  Fed. R. Evid. 201(b).  
However, judicial review under the APA is generally limited to the administrative record 
that was before the agency when it made its decision.  Voyageurs, 

; Dist. 
Hosp. Partners, L.P. v. Sebelius, 

, 32 n.14 (D.D.C. 2013) (“[T]aking judicial 
notice is typically an inadequate mechanism for a court to consider extra-record evidence 

when reviewing an agency action.”).  The administrative record, and “not some new 
record made initially in the reviewing court,” should be the “focal point” for judicial 
review.  Camp v. Pitts, 

 (1973).   While there are certain exceptions to 
this rule, they “apply only under extraordinary circumstances.”  Voyageurs, 

.    “When  there  is  ‘a  contemporaneous  administrative  record  and  no  need  for 
additional explanation of the agency decision, there must be a strong showing of bad faith 
or improper behavior before the reviewing court may permit discovery and evidentiary 

supplementation of the administrative record.’”  

 (quoting Newton Cnty. Wildlife Ass’n 
v. Rogers, 

, 807–08 (8th Cir. 1998)).                         
  Here,  the  Bands  assert  that  the  extra-record  documents  are  necessary  to 
determine “whether the agency has considered all relevant factors and has explained its 

decision.”  Lands Council v. Powell, 

, 1030 (9th Cir. 2005).  However, the 
Bands have not established a “strong showing of bad faith or improper behavior” that 
would justify taking judicial notice of these extra-record documents.  Voyageurs, 

.  The Court can, of course, consider documents that were referenced in the 

rulemaking comments and necessarily encompassed in the record.  See, e.g., AR 44 n.3, 
177, 1903, 14268, 15535–36, 15810.  But the Court will not go beyond those materials in 
the record.                                                               
IV.  ARBITRARY AND CAPRICIOUS REVIEW                                      
  The Bands assert that EPA’s approval of Minnesota’s 2021 revised water quality 

standards must be set aside for four reasons: (1) it was improper to remove the numeric 
criteria; (2) EPA failed to properly consider the impact of the revised standards on other 
downstream water uses, including aquatic life and wild rice; (3) EPA failed to meaningfully 
consider the impact the revised standards may have on the Bands’ treaty-reserved rights 

to use Minnesota waters; and (4) there was no analysis of the cumulative impact of the 
revised standards given Minnesota’s implementation and enforcement of water quality 
standards over the years.  The Court will analyze each argument in turn.  
  A.     Numeric Criteria                                              

  The Bands assert that it was improper for EPA to approve MPCA’s decision to 
remove the numeric criteria from the revised water quality standards because numeric 
criteria could have been established.  The Court disagrees.               
  Under the Clean Water Act and implementing regulations states should adopt 

narrative criteria “where numerical criteria cannot be established or to supplement 
numerical criteria.”  

(b).  Because numeric criteria were in place prior 
to the 2021 revisions, the Bands assert that numeric criteria were possible for the revised 
standards.6  But just because numeric criteria are possible does not mean they comply 



  6 Amici argue that MPCA failed to perform a required Use Attainability Analysis (“UAA”) 
to determine whether numeric criteria for Class 3 and 4 waters could be achieved.  See 40 C.F.R. 
with the Clean Water Act and implementing regulations.  Water quality criteria “must be 
based on sound scientific rationale.”  

 § 131.11(a)(1).                

  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.  MPCA also concluded that numeric criteria for salt 

pollutants to protect irrigated agriculture uses were no longer scientifically defensible 
given the wide variety of irrigated agriculture water needs that depend on a litany of 
factors.                                                                  

  It was reasonable for EPA to affirm MPCA’s conclusion that the previous numeric 
criteria for industrial consumption and irrigated agriculture uses were “based on outdated 
assumptions” and were precluded by the variability of local irrigated agriculture factors 
throughout the State.  AR 1040.  National and international experts, scientific literature 

databases, specialized reports, and water quality standards in other states all indicated 



§ 131.10(g).  EPA’s website indicates that a UAA “must be conducted for any water body when a 
state or authorized tribe … designat[es] sub-categories of [uses specified in Section 101(a)(2) of 
the Clean Water Act] that require less stringent criteria than previously applicable.”  U.S. E.P.A., 
Use Attainability Analysis (UAA), https://www.epa.gov/wqs-tech/use-attainability-analysis-uaa 
(last visited Mar. 13, 2024).  However, EPA determined that the only designated uses affected by 
the rulemaking are the “previously existing Class 3 industrial consumption subclasses,” which the 
state re-designated with a general Class 3 use classification.  AR 8822.  The agency explained that 
the Class 3 industrial consumption uses are not uses specified in Section 101(a)(2) of the Act, 
which pertain to aquatic life and recreation, such that MPCA was not required to conduct a UAA 
to support the re-designation of waters with a general Class 3 use.  Id.  
that statewide numeric criteria are disfavored given the varying needs of industrial and 
agricultural uses.  AR 3920–25.  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.                                             
  Furthermore, EPA did not improperly consider convenience and costs in deciding 
whether  to  remove  the  numeric  criteria  previously  in  place  to  protect  industrial 

consumption and irrigated agriculture uses.  Convenience and costs associated with water 
quality compliance should not guide EPA’s regulatory decision-making.  See 

, 131.11; Miss. Comm’n on Nat. Res. v. Costle, 

, 1277 (5th Cir. 1980) 

(agreeing  with  EPA’s  interpretation  that  economic  factors  are  to  be  considered  in 
designating uses but are irrelevant to the scientific and technical factors to be considered 
in setting criteria to meet those uses).  But they are relevant for the MPCA’s analysis.  See 

.  Concerns about convenience and costs created the urgency that 

prompted Minnesota to revise the water quality standards for those designated uses in 
the first place.  See AR 920.  And the fact that the costs of compliance are lower now 
under the revised standards is not per se impermissible.                  
  The Court finds EPA’s approval of replacing the numeric criteria rational and 

supported by science, and thus will not overturn EPA’s decision on this basis. 
  B.   Consideration of Aquatic Life and Wild Rice                     
  The Bands claim that EPA failed to meaningfully consider the impact that removing 
the numeric criteria would have on other downstream water quality standards, including 
those that protect aquatic life and  wild rice.  The Bands claim  that EPA rested on 
conclusory  assumptions  that  other  existing  water  quality  standards  will  protect 

downstream  water  uses  without  conducting  thorough  analyses  to  support  those 
assumptions.    See  Genuine  Parts  Co.  v.  EPA,  

  (D.C.  Cir.  2018) 
(“Conclusory explanations for matters involving a central factual dispute where there is 
considerable evidence in conflict do not suffice to meet the deferential standards of our 

review.” (quotation omitted)).  But while EPA could have done more to meaningfully 
consider such impact, it did enough to preclude judicial intervention.    
  The Clean Water Act “endorses a holistic approach to the nation’s waterways.”  El 
Dorado Chem. Co. v. United States Env’t Prot. Agency, 

 (8th Cir. 2014); 

see also AR 3925–26  (“EPA interprets  and  implements  its  regulation  at  

(a) to consider whether ‘criteria’ are holistically protective.”).  Under this holistic 
approach,  a  state  “shall  take  into  consideration  the  water  quality  standards  of 

downstream waters and shall ensure that its water quality standards provide for the 
attainment and maintenance of the water quality standards of downstream waters.”  

(b).  In addition, water quality standards must protect the most sensitive 
use in waters with multiple designated uses.  

(a).      

  Here,  EPA  acknowledged  that  removing  numeric  criteria  for  industrial  and 
agriculture uses may impact aquatic life, wild rice, and human health because the numeric 
criteria incidentally protected those uses.  Loss of those incidental benefits is legally 
permissible, though.  See Nat. Res. Def. Council, Inc. v. United States Env’t Prot. Agency, 

, 1404–05 (4th Cir. 1993).  And EPA explained that existing water quality 

standards for aquatic life and wild rice, which were unaffected by the rulemaking at issue 
in this case, remain in effect and will continue to protect those designated uses, especially 
when they are the more sensitive use.  Thus, the agency addressed the Bands’ concerns, 
albeit briefly.  Contra Genuine Parts Co., 

 (finding it arbitrary and capricious 

where agency “simply ignore[d]” cross sections of a study that did not support its position 
in the record).                                                           
  The Court cannot find EPA’s review of the standards’ impact on aquatic life and 

wild rice arbitrary and capricious.  EPA made all the appropriate determinations as 
required under the Clean Water Act and implementing regulations.  See 

.  
And the agency’s explanation that aquatic life and wild rice remain protected by their own 
numeric, narrative, and biological criteria is rational.  In waters where aquatic life or wild 

rice are the most sensitive uses, their corresponding standards are supposed to protect 
those uses, even if the revised Class 3 and 4 standards no longer do so.7  

(a).                                                                



  7 Though the Bands insist that EPA should have analyzed what the most sensitive use is 
within the waters and how that use will be protected under the revised standards, the agency 
concluded that the variability of water quality needs for industrial consumption and irrigated 
agriculture uses make it impossible to determine whether aquatic life, wild rice, industrial 
consumption, or irrigated agriculture uses is the most sensitive use.  The Court is in no position 
to question this technical conclusion.                                    
  The Bands assert that EPA was required to conduct more comprehensive analyses, 
including how the revised standards could lead to increases in specific conductivity, 

sulfate, chloride, or mercury levels in Minnesota waters and in turn harm aquatic life or 
wild rice.  For example, the Bands claim EPA should have considered how the revised 
standards will presumptively allow a site-specific concentration of 1,000 mg/L of sulfate 
in any waterbody not used for cattle, which the Bands claim is 100 times the level of 

sulfate that protects wild rice.  In addition, the Bands assert that aquatic life will not be 
adequately protected by the 230 mg/L chloride standard that is set in the Class 2 criteria 
after removing the 50 mg/L and 100 mg/L chloride standards that were set in the Class 3 

criteria given current data indicating the sensitivity of aquatic life to chloride at much 
lower levels.  While the Court agrees those analyses would have been helpful, they are 
not required by law.                                                      
  The revised standards may have provided “backstop” numeric criteria protections 

for aquatic life and wild rice.  But those standards were meant to protect industrial 
consumption  and  irrigated  agriculture  uses,  not  aquatic  life  or  wild  rice.    And  the 
regulations do not require that water quality standards specifically crafted to protect 
industrial and agriculture uses protect other uses in perpetuity just because they did so 

at one point.  Otherwise, there would be no need for multiple classifications of designated 
uses and their associated standards in the first place.  Instead, the State need only ensure 
that “its water quality standards provide for the attainment and maintenance of the water 
quality standards of downstream waters.”  

(b).  It was not arbitrary and 
capricious for the EPA to find that the revised standards did so here.    

  On this record and based on current science, EPA reasonably determined that the 
unaffected water quality standards already in place8 to protect aquatic life and wild rice 
remain in effect to protect those uses.  While the agency’s “just trust us” statements 
would never survive de novo review by the Court, the Court is bound by the extremely 

deferential  standard  of  review  under  the  APA.    The  revisions  to  the  water  quality 
standards involve the evaluation of technical science of which MPCA and EPA are experts, 
and the Court may not “substitute its judgment for that of the agency.”  State Farm, 

.  Though EPA could and should have provided greater analysis here, the agency 
satisfied its minimal obligations under the Clean Water Act and APA.  Accordingly, the 
Court finds that EPA meaningfully considered the impact that the revised water quality 
standards could have on aquatic life and wild rice and will not overturn EPA’s approval of 

the revised standards on that basis.                                      
  C.   Consideration of the Bands’ Treaty-Reserved Rights              
  The Bands assert that EPA failed to meaningfully consider the impact that the 
revised water quality standards would have on Tribal reserved rights, including rights 



  8 In some ways, the Bands’ challenge seems to really be about whether the State can 
effectively  enforce  its water  quality standards  and whether  the  aquatic  life  and  wild  rice 
standards adequately protect those designated uses.  But this is a separate argument that the 
Court will address below.                                                 
related to wild rice, drinking water, medicinal and Tribally important plants, and aquatic 
life.  While the Court is disappointed EPA did not do more to meaningfully interact with 

the Bands and other Tribes regarding the revised standards, the Court cannot overturn 
the agency’s approval on that basis.                                      
  States and EPA must consider Tribal treaty rights to aquatic and aquatic-dependent 
resources to comply with the Clean Water Act and implementing regulations.  See 

(c)(2)–(3), 1371(a); 

, 131.6, 131.10(b).  Failure to do so 
may be grounds for overturning the agency’s approval of water quality standards.  See, 
e.g., Miccosukee Tribe of Indians of Fla. v. United States, No. 04-21448, 

, 

at *38 n.70 (S.D. Fla. July 29, 2008) (finding that EPA violated Clean Water Act in part by 
failing to consider the effects of the revised water quality standards on the Miccosukee 
Tribe’s downstream water uses).                                           
  In reviewing Minnesota’s revised standards, EPA invited Tribal representatives to 

consult on the revisions.  After two conference calls and reviewing Tribal comments, EPA 
sent the Tribes a letter that summarized the issues identified by the Tribes and discussed 
how EPA considered those concerns in its review.9  EPA explained that many of the Tribes’ 
concerns  relate  to  Class  3  and  4  designated  uses  and  criteria  revised  in  the  2021 



  9 MPCA also acknowledged the Bands’ concerns about the revisions’ potential impact on 
aquatic life and wild rice and actively engaged with the Bands throughout the revision process.  
AR  819,  983–94.    MPCA  addressed  the  Tribes’  concerns  in  their  response  to  the  Tribes’ 
comments, in meetings with the Tribes, and in MPCA’s technical documents.  AR 983–90, 1033–
40, 1062–1120, 1136–55.                                                   
rulemaking,  while  others  were  outside  the  scope  of  its  evaluation  of  the  revised 
standards.  AR 8821.  Given the overlap between concerns about the standards’ impact 

on aquatic life and wild rice and the Tribes’ treaty-reserved rights, EPA explained that its 
evaluation of the standards’ impact on aquatic life and wild rice also applied to the Tribes’ 
comments related to their Tribal reserved rights.  AR 3925 at n.21.       
  As the Court found above, EPA’s conclusion that the Bands’ rights will remain 

protected by separate, unaffected water quality standards is not unreasonable.  The 
revisions to the water quality standards involve the evaluation of technical science and 
data, an area of agency expertise.  The Court therefore is not in a position to question the 

agency’s rational decision to approve the revised Class 3 and 4 standards based on the 
conclusion that other, unaffected, EPA-approved water quality standards will protect 
other designated uses.  As a result, the Court finds that EPA sufficiently considered the 
revised water quality standards’ impact on the Bands’ treaty-reserved rights. 

  To be sure, the EPA could and should have more meaningfully interacted with the 
Bands.  The Bands are sovereign, federally recognized entities.  And they are authorized 
to administer water quality standards in the same way that states do.  

(e).  
It is disappointing that EPA’s idea of meaningful consultation with the Tribes consists of 

two virtual meetings and one set of written comments.  Yet the law does not clearly 
require more, even if that would be the Court’s preference.  And as above, the Court’s 
review of EPA’s action is very deferential.  State Farm, 

.  Accordingly, EPA’s 
approval was not arbitrary or capricious.                                 

  D.   Minnesota’s Implementation of Its Water Quality Standards       
  The Bands claim that EPA acted arbitrarily by failing to meaningfully consider 
Minnesota’s implementation and enforcement of its existing water quality program.  See 
Am. Wild Horse Pres. Campaign v. Perdue, 

 (D.C. Cir. 2017) (“[The] 

standard obligates the agency to examine all relevant factors and record evidence, and to 
articulate a reasoned explanation for its decision.”).  Primarily, the Bands contend that 
EPA based its approval on an unrealistic assumption that Minnesota’s implementation of 
narrative criteria would result in more stringent limitations in NPDES permitting and other 

regulatory decisions.10  Yet, the Bands assert, the stark reality is that the State has 
struggled for years to implement and enforce its water quality standards, a fact which 
MPCA itself admits.  AR 984 (“MPCA recognizes that many older narrative standards are 

not regularly enforced, in that they are not generally incorporated into permit limits.”); 



  10  The  Bands  also  attack  the  adequacy  of  the  narrative  translators  for  industrial 
consumption and irrigated agriculture uses, primarily because they now evaluate compliance 
with water quality standards at the point an industrial or agriculture user withdraws water rather 
than at the point of pollution discharge.  Under this method, the Bands assert there is no way to 
assess the overall health of the water as it relates to aquatic life and wild rice.  However, the 
narrative translators are in place to protect industrial consumption and irrigated agriculture uses, 
not aquatic life and wild rice.  Industrial and agricultural uses occur at the point the industrial or 
agricultural user withdraws water, so the overall health of the water between a discharge point 
and a withdrawal point is not relevant to protecting industrial or agricultural users because they 
do not make instream uses of the waters.                                  
see also AR 7828 (reporting sulfate discharges from Keetac mine that exceed the 10 mg/L 
sulfate limit in the permit).                                             

  The  Court  sympathizes  with  the  Bands’  concerns  about  Minnesota’s 
implementation and enforcement of narrative standards.  Indeed, 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.  However, EPA determined that despite the State’s implementation 
struggles, Minnesota’s implementation plans to ensure that its existing narrative and 
biological  criteria  for  aquatic  life  and  wild  rice  would  appropriately  protect  their 

designated uses were sufficient.  In fact, the plan to protect aquatic life was developed 
using a method described in EPA’s own benchmark study, which was extensively peer-
reviewed.  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.                                                   
  More importantly, whether Minnesota has been struggling to implement and 
enforce its water quality standards is not an explicit factor that EPA must consider in 
deciding whether to approve a state’s water quality standards.  See 

(a).  

The agency is charged with determining whether the water quality standards meet the 
regulatory requirements to, among other things, adequately protect their designated 
uses,  not  how  the  State  may  implement  and  enforce  them.    While  feasibility  of 
implementing narrative standards perhaps should be considered in the approval process, 
the regulations do not require such consideration.  Moreover, whether the State will 

struggle to implement the revised water quality standards is premature.  Therefore, the 
Court finds that Minnesota’s implementation and enforcement of its previous water 
quality standards does not make EPA’s approval of the revised standards arbitrary or 
capricious.                                                               

                        CONCLUSION                                     
  Though the Court is in substantial agreement with the Bands’ concerns regarding 
the revisions’ potential to impact aquatic life, wild rice, and their treaty-reserved rights to 
use Minnesota waters, the revised water quality standards involve the evaluation of 

technical science and data, of which EPA and MPCA are experts.  On the record before 
the Court, EPA’s decision is rational, and the Court’s hands are severely tied under the 
APA’s deferential standard of review.                                     

  Because  the  agency  determined  that  current  science  does  not  support  the 
retention  or  establishment  of  numeric criteria  to  protect  industrial consumption  or 
irrigated agriculture uses, EPA’s approval of the State’s removal of the numeric criteria 
was not arbitrary or capricious.  And because EPA concluded that aquatic life and wild 

rice, as well as the Bands’ treaty-reserved rights, would continue to be protected by 
separate, unaffected water quality standards tailored to those ends, neither was EPA’s 
decision arbitrary or capricious on those bases.  Finally, whether Minnesota has been 
struggling to implement and enforce its water quality standards is not an explicit factor 
that EPA must consider in deciding whether to approve a state’s water quality standard, 
and thus not a basis upon which the Court can overturn the agency’s decision.  Asa result, 
it was not arbitrary or capricious for EPA to approve  

.0223 and  

.0224. 

   Based on the foregoing, and  all the files,  records, and  proceedings herein,  IT IS 
HEREBY ORDERED that: 
1.  Plaintiffs’ Motion for Summary Judgment [Docket No. 88] is DENIED; 
2.  Defendants’ Motion for  Summary  Judgment  [Docket No. 99] is GRANTED; 
3.  Intervenor-Defendants Coalition of Greater Minnesota Cities, Range Association of 
   Municipalities  and  Schools,  Minnesota  Chamber of Commerce,  Cleveland-Cliffs, 
   Inc., and United States Steel Corporation’s Motion for Summary Judgment [Docket 
   No. 103] is GRANTED; and 
4.  Intervenor Defendant Minnesota Pollution Control Agency’s Motion for Summary 
   Judgment [Docket No. 107] is GRANTED. 

LET JUDGMENT BE ENTERED ACCORDINGLY. 

DATED:  March 29, 2024                            dot. KM. (shin 
at Minneapolis, Minnesota.                         JOHN R. TUNHEIM 
                                          United States District Judge 

                                  -35-