In Re the Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance for the Discharge of Treated Wastewater

I respectfully dissent. I agree with the majority that 40 C.F.R. § 122.4(f) (2005) does not bar the Minnesota Pollution Control Agency (PCA) from issuing a permit in the period between the initial listing of a water body as impaired under section 303(d) of the Clean Water Act (CWA) and the implementation of a Total Maximum Daily Load. I also agree that the PCA was not barred as a matter of law from issuing a permit due to the impact of the proposed plant on dissolved oxygen levels in the North Fork of the Crow River.

But I disagree with the majority’s conclusion that the PCA erred by…