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ALASD expansion clears court hurdle

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The Alexandria Lake Area Sanitary District (ALASD) scored a major victory for its expansion project Thursday.

The Minnesota Supreme Court issued an opinion on April 2 that reversed the Minnesota Court of Appeals' 2007 ruling, which had directed the Minnesota Pollution Control Agency to reconsider approving ALASD's wastewater treatment permit.

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The permit was approved in June 2006 for an expansion of the district's plant capacity, together with wastewater treatment improvements including new filters. The permit was appealed shortly thereafter by the Minnesota Center for Environmental Advocacy (MCEA) and local environmental interests, including the Lake L'Homme Dieu Association.

The lake association was concerned that doubling the size of the sewer plant would increase discharge into Lake Winona and end up polluting lakes L'Homme Dieu, Carlos and others. The association wanted ALASD to consider other sewer treatment options.

The supreme court's 4-2 ruling held that the Clean Water Act at issue unquestionably requires effluent limits in wastewater treatment permits that "will attain and maintain applicable water quality criteria" and "will fully protect the designated use" of impaired waters such as Lake Winona.

However, the majority also held that application of the law is unclear for a situation like that faced by ALASD - where a necessary expansion will discharge to an impaired water and a Total Maximum Daily Load (TMDL) study and cleanup plan has not yet been completed.

The decision allows the MPCA to use technical knowledge gained from the TMDL study, as well as the MPCA's scientific expertise, to craft an appropriate package of implementation measures, according to the ALASD.

The challenged permit contains final phosphorus effluent limits of 0.3 milligrams per liter and 5.4 kilograms per day, as well as conditions requiring compliance with the TMDL study being developed for Lake Winona. The study is due out later this year.

The April 2 decision will allow the permit to remain in place.

Supreme Court Justices Paul H. Anderson and Alan Page disagreed with the majority's ruling.

In his dissenting opinion, Anderson wrote, "The MPCA has simply not done enough to protect Lake Winona from further degradation while the TMDL process is being completed."

Anderson said that the court should not lose sight of what the case is about.

"The Clean Water Act requires the MPCA to focus on attaining and maintaining a water quality for Lake Winona that will fully protect the lake's designated use," Anderson wrote. "Thus, notwithstanding some of the scientific and technical distractions in this case, the bottom line is whether the new permit attains and maintains the water quality in Lake Winona. The bottom line is that it does not."

The ALASD continued the construction of its expansion while the permit was under appeal, according to Bruce Nelson, ALASD executive director. The old treatment units have been decommissioned, new treatment processes have been installed and are currently being tested for their efficiency, he said.

ALASD officials expressed relief over the supreme court ruling.

"Although we are relieved with today's decision, we also know the district cannot rest in our efforts to improve Lake Winona's water quality," said district board chair Paul Nelson in a news release issued Thursday. "Over the coming months we intend to continue working closely with MPCA staff and local residents to complete the TMDL study, implement it, and work together to improve the lake's water quality."

MCEA leaders, however, worry that the decision will degrade local lakes by allowing more phosphorous to be discharged into them.

"We're disappointed, obviously, with the decision," Kris Sigford, MCEA water quality director told the Echo Press Friday. "We think it's bad news for water quality in Lake Winona and the chain of lakes downstream."

She added that the decision could have broader ramifications for water quality in the entire state of Minnesota.

"It depends on how the MPCA uses the broad discretion the court has granted it," she said. "They can issue permits to clean up lakes or make them dirtier."

Sigford noted that Lake Winona contains about four times more phosphorous than a healthy lake should.

Phosphorous, she added, stimulates algae growth, which not only impairs the recreational uses of a lake but also impacts the organisms living in it.

"When algae dies off or decomposes, it uses up dissolved oxygen in the lake - oxygen that fish need to live," she said.

According to the ALASD, lakes Winona, Agnes and Henry have experienced improvements in total phosphorus levels, nuisance algal growth, odor generation, and winter fish kills since the facility began operation in 1977.

The court observed that controlling external loading is only the "first step" in restoring Lake Winona, and that even the complete elimination of the district's wastewater discharge would not result in Lake Winona attaining water quality standards, noted Bruce Nelson.

The Lake Winona TMDL may require phosphorus reductions from a number of point and non-point sources.

The Minnesota Supreme Court's 49-page decision is available on the Minnesota Courts Web site at http://www.mncourts.gov/opinions/sc/current

/OPA061371-0402.pdf.

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