This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A16-0123 

In the Matter of the Decision 

 to Deny the Petitions for a Contested Case Hearing and 

to Submit the Draft Little Rock Creek Dissolved Oxygen, Nitrate, Temperature, 

and Fish Bioassessment Total Maximum Daily Load Study to the 

U.S. Environmental Protection Agency for Approval. 

Filed November 28, 2016 

Affirmed 

Reilly, Judge 

Minnesota Pollution Control Agency 

Matthew C. Berger, Dean M. Zimmerli, Gislason & Hunter LLP, New Ulm, Minnesota 

(for relators Duane Kroll, et al.) 

Lori Swanson, Attorney General, Ann E. Cohen, Assistant Attorney General, St. Paul, 

Minnesota (for respondent Minnesota Pollution Control Agency) 

 Considered and decided by Reilly, Presiding Judge; Halbrooks, Judge; and Johnson, 

Judge. 

U N P U B L I S H E D O P I N I O N 

REILLY, Judge 

Relator-landowners petitioned for certiorari review of the Minnesota Pollution 

Control Agency’s (the MPCA) decision to submit a Total Maximum Daily Load (TMDL) 

study of the Little Rock Creek watershed area to the Environmental Protection Agency (the 

EPA) for approval pursuant to the federal Clean Water Act, 33 U.S.C. § 1313(d) (2012) 

(the CWA). The MPCA asserts that (1) relators lack standing to pursue this certiorari 
2 

appeal; (2) the MPCA’s decision is supported by the record; and (3) relators are not entitled 

to a contested-case hearing. We determine that relators have standing through a legislative 

enactment granting standing. However, because relators have not met their burden of 

demonstrating that the MPCA’s decision was unsupported by the record and the MPCA 

did not err by denying a contested-case hearing, we affirm. 

FACTS 

I. Parties 

Relators are residents, landowners, and farmers near the Little Rock Creek 

watershed. The MPCA is the state agency charged with enforcing the CWA and has the 

authority to “administer and enforce all laws relating to the pollution of any of the waters 

of the state.” Minn. Stat. §115.03, subd. 1(a) (2014); Minn. Envtl. Sci. & Econ. Review Bd. 

v. Minn. Pollution Control Agency, 870 N.W.2d 97, 99 (Minn. App. 2015). 

II. Statutory and Regulatory Framework 

The stated objective of the CWA is “to restore and maintain the chemical, physical, 

and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a) (2012). To attain 

this objective, the CWA provides two methods for controlling water pollution: effluent 

limitations and water quality standards. Arkansas v. Oklahoma, 503 U.S. 91, 101, 112 S. 

Ct. 1046, 1054 (1992). “Effluent limitations” restrict the “quantities, rates, and 

concentrations of chemical, physical, biological, and other constituents” discharged from 

point sources into waterways. Id.; 33 U.S.C. § 1362(11) (2012). “Point sources” are “any 

discernible, confined and discrete conveyance” from which pollutants are or may be 

discharged including pipes, ditches, tunnels, wells, and other containers. 33 U.S.C. 
3 

§1362(14) (2014). Unlike point source discharges, “nonpoint-source discharges” are not 

explicitly defined by the CWA, but have been described as “nothing more than a water 

pollution problem not involving a discharge from a point source.” Defs. of Wildlife v. U.S. 

Envtl. Prot. Agency, 415 F.3d 1121, 1124 (10th Cir. 2005) (quotation omitted).1

 

“Water quality standards set the permissible level of pollution in a specific body of 

water without direct regulation of the individual sources of pollution.” City of Arcadia v. 

U.S. Envtl. Prot. Agency, 411 F.3d 1103, 1105 (9th Cir. 2005). The CWA requires each 

state to adopt water quality standards for bodies of water within the state’s boundaries that 

“establish the desired condition of a body of water.” In re Cities of Annandale & Maple 

Lake NPDES/SDS Permit, 731 N.W.2d 502, 510 (Minn. 2007); 33 U.S.C. § 1313(a)-(c). 

After establishing its water quality standards, a state is required by the CWA to identify 

“impaired” bodies of water within its boundaries that fail to meet those standards. 33 

U.S.C. § 1313(d)(1)(a); 40 C.F.R. § 130.7(b). This list of substandard waters is known as 

the “§ 303(d) list” or the “impaired waters” list. Thomas v. Jackson, 581 F.3d 658, 661, 

667 (8th Cir. 2009). When creating a § 303(d) list, a state “must assemble and evaluate all 

existing and readily available water quality-related data and information.” Id. at 661 (citing 

40 C.F.R. § 130.7(b)(5)). 

For each impaired body of water on the § 303(d) list, the state must establish a 

TMDL for each pollutant the water can sustain without exceeding water quality standards. 

 

1

 A number of federal courts have rendered decisions arising out of the federal Clean Water 

Act, 33 U.S.C. § 1313(d), and we find the reasoning in these federal decisions to be 

persuasive authority in the present case. 
4 

Id. at 662; 33 U.S.C. § 1313(d)(1)(C) (articulating this requirement). A TMDL is defined 

as: 

the sum of the pollutant load allocations for all sources of the 

pollutant, including a wasteload allocation for point sources, a 

load allocation for nonpoint sources and natural background, 

an allocation for future growth of point and nonpoint sources, 

and a margin of safety to account for uncertainty about the 

relationship between pollutant loads and the quality of the 

receiving surface water. 

Minn. Stat. § 114D.15, subd. 10 (2014) (defining TMDL as “a scientific study that contains 

a calculation of the maximum amount of a pollutant that may be introduced into a surface 

water and still ensure that applicable water quality standards for that water are restored and 

maintained”); 40 C.F.R. § 130.2(g)-(i) (defining load allocation, wasteload allocation, and 

TMDL allocation); 33 U.S.C. § 1362(6) (defining “pollutant” as “dredged spoil, solid 

waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, 

biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, 

sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water”). 

The state must submit its § 303(d) list and the TMDL to the EPA for approval. 33 U.S.C. 

§ 1313(d)(2). The EPA will either approve or disapprove the state’s § 303(d) list within 

30 days of submission and, if the EPA disapproves a state’s § 303(d) list, it will establish 

its own list within 30 days of the date of disapproval. 40 C.F.R. § 130.7(d)(2). 

III. Factual and Procedural Background 

Little Rock Creek is a DNR-designated trout stream in central Minnesota. The landuse in the watershed area consists of approximately 50% crops, 14% woodland, 22% grass 
5 

and pasture, 13% water and wetlands, and less than 1% residential development. The area 

is considered “highly altered by human influenced agricultural land uses.” 

In 2002, the MPCA proposed placing Little Rock Creek on the § 303(d) list for lack 

of coldwater fish assemblage and “due to a biological impairment as indicated by a poor 

warmwater fish . . . score” on the Indices of Biological Integrity. The EPA approved this 

designation in 2003. During the 2006 assessment cycle, Little Rock Creek was removed 

from the § 303(d) list when an examination revealed that it was designated as a Class 2A 

coldwater stream and, at that time, the MPCA lacked the tools to properly assess the 

biology of coldwater streams. In 2010, the MPCA again placed Little Rock Creek on the 

§ 303(d) list because it failed to meet water quality standards for dissolved oxygen and 

nutrients, and due to the “lack of a coldwater assemblage.” The EPA approved the list in 

2012. 

Following Little Rock Creek’s initial placement on the § 303(d) list in 2002, the 

MPCA began working with the Benton County Soil and Water Conservation District and 

the Morrison County Soil and Water Conservation District (the SWCDs) on the Little Rock 

Creek TMDL, using a three-phased approach. 

In phase I, the MPCA collected and organized existing data and developed a list of 

potential stressors on the Little Rock Creek watershed area. 

In phase II, the MPCA, in conjunction with the SWCDs, produced a Stressor 

Identification Report to “identify stressors contributing to [the] lack of cold water fish 

assemblage in Little Rock Creek.” “Stressors” are “[the] specific physical and/or chemical 

factors that . . . caus[e] [a] biological impairment.” The MPCA invited local, state, and 
6 

federal agencies, interest groups, organizations, and citizens to participate in the process 

and provide input into the development of the TMDL. The Stressor Identification Report 

was published in 2009 and included watershed data, stakeholder meeting comments, 

technical group meetings and coordination information, causal analysis, and stressor 

identification documentation, “contain[ing] the complete stressor identification for lack of 

cold water fish assemblage.” The study “used a variety of methods to evaluate the current 

loading and contributions from the various pollutant sources,” along with “the allowable 

pollutant loading capacity of the impaired reaches.” The report concluded that “it is 

probable that altered flow, temperature, sediment, dissolved oxygen, and nitrates may be 

causing a biological impairment in Little Rock Creek.” 

Following the release of the Stressor Identification Report, the MPCA developed a 

draft TMDL work plan in phase III of the project for “temperature, bedded sentiment, 

nitrates, and dissolved oxygen, by calculating the total pollutant load with reference to flow 

as [a] source of impairment.” The specific objective of the TMDL was to “determine the 

type and degree of pollutant source reductions needed to achieve the water quality 

standards . . . for drinking water . . . [and] temperature” in the water. The TMDL advised 

that in order to satisfy water quality standards, Little Rock Creek required a 52% reduction 

in total oxygen demand; a 19-47% reduction in the nitrate load, depending on flow 

conditions; and a 1% reduction in thermal loading. The TMDL developed an 

implementation plan to address the water’s stressors and their sources. The TMDL stated 

that the “ideal combination” of implementation strategies and best management practices 

would include: (1) reducing groundwater use, which could include limiting total 
7 

appropriations, improving irrigation efficiency, scheduling and technologies, and 

identifying alternative sources; (2) reducing nutrient and organic constituents; and 

(3) creating “more of a free flowing system” to improve connectivity and temperature 

issues. 

The MPCA submitted its draft TMDL to the EPA in November 2012 for preliminary 

review. The EPA provided comments on the TMDL, which the MPCA incorporated. The 

MPCA held a public comment period and posted a draft of the study on its website. The 

MPCA received, and responded to, nine timely written comments. 

The MPCA’s approval of a TMDL is a final decision of the agency and is subject 

to the contested-case hearing procedures of the Administrative Procedure Act. Minn. Stat. 

§ 114D.25, subd. 2 (2014); Minn. Stat. Ann. § 14.57(a) (2014). The MPCA received two 

timely petitions for a contested-case hearing on Little Rock Creek’s TMDL study. The 

petitions are largely identical and raised issues relating to “(1) the natural backgrounds in 

load allocations; and (2) the effect of reducing nitrate loading on bio-accumulative toxin 

methyl-mercury and for blue-green algae.” The MPCA determined that “the petitions do 

not meet the threshold petition content requirements by stating reasons to hold a [contestedcase hearing] and by stating issues to be addressed and specific relief requested.” The 

MPCA concluded that “the issues raised . . . do not meet the requirements for granting a 

[contested-case hearing]” and denied the petitions. 

This certiorari appeal follows. 

 
8 

D E C I S I O N 

I. Relators have standing to pursue this appeal. 

a. Standard of Review 

“Standing is a legal requirement that a party have a sufficient stake in a justiciable 

controversy to seek relief from a court.” McCaughtry v. City of Red Wing, 808 N.W.2d 

331, 338 (Minn. 2011) (quotation and citation omitted). Standing is conferred upon a party 

in one of two ways: either the plaintiff has suffered an injury-in-fact or the plaintiff 

maintains a statutory right to sue. Nash v. Wollan, 656 N.W.2d 585, 588 (Minn. App. 

2003). “The purpose of the standing requirement is to ensure that issues before the court 

will be vigorously and adequately presented.” State ex rel. Hatch v. Allina Health Sys., 

679 N.W.2d 400, 404 (Minn. App. 2004) (quotations omitted). Because standing is a 

jurisdictional issue, we evaluate standing determinations de novo. In re Custody of D.T.R., 

796 N.W.2d 509, 512 (Minn. 2011). 

b. A legislative enactment grants relators standing. 

The MPCA challenges relators’ standing to pursue this appeal. Standing may be 

acquired “when a party is the beneficiary of some legislative enactment granting standing.” 

Citizens for a Balanced City v. Plymouth Congregational Church, 672 N.W.2d 13, 18 

(Minn. App. 2003) (quotation omitted). Minnesota Statutes section 114D.25, subdivision 

2, provides that “[t]he approval of a TMDL by the [MPCA] is a final decision of the agency 

for purposes of section 115.05, and is subject to the contested case procedures of sections 

14.57 to 14.62.” Minnesota Statutes section 115.05, subdivision 11 (2014), provides that 
9 

“[a]ny person aggrieved by any final decision of the [MPCA] may obtain judicial review 

thereof pursuant to sections 14.63 to 14.69.” 

The MPCA argues that relators are not “aggrieved” parties within the meaning of 

section 115.05. An “aggrieved person” is 

one who is injuriously or adversely affected by the judgment 

or decree when it operates on his rights of property or bears 

directly upon his personal interest. The word “aggrieved” 

refers to a substantial grievance, a denial of some personal or 

property right, or the imposition on a party of a burden or 

obligation. 

In re Application by City of Rochester for Adjustment of Serv. Area Boundaries, 524 

N.W.2d 540, 542 n.1 (Minn. App. 1994) (citing In re Getsug, 290 Minn. 110, 114, 186 

N.W.2d 686, 689 (1971)). 

Relators argue that they are aggrieved parties because they will be affected by the 

pollutant load limits imposed as a result of the Little Rock Creek TMDL, including lower 

property values and compliance costs. The MPCA argues that relators’ claims are too 

speculative and remote at this stage because the draft TMDL was merely “one step in a 

long chain” that may eventually cause relators “unspecified injuries.” See, e.g., Missouri 

Soybean Ass’n v. U.S. E.P.A., 289 F.3d 509, 513 (8th Cir. 2002) (dismissing case on 

jurisdictional grounds where appellants challenged the EPA’s approval of Missouri’s 

§ 303(d) list because appellants’ claims of potential harm were too remote). 

We previously rejected a similar argument. In Minn. Envtl. Sci. & Econ. Review 

Bd., municipalities, public-utilities commissions, sanitary sewer districts, and farmers who 

were potentially affected by changes in clean-water rules sought declaratory judgment in a 
10 

pre-enforcement challenge to water quality standards promulgated by the MPCA. 870 

N.W.2d at 98-99. The MPCA argued that petitioners lacked standing because they 

“fail[ed] to specify any specific rights which [were] currently affected” and their potential 

harms were “too tenuous and rel[ied] on too many indeterminate assumptions” to establish 

standing. Id. at 100. We disagreed and determined that petitioners had standing to bring 

an action for a pre-enforcement declaratory judgment. Id. at 100-01 (stating that petitioners 

were among “the class of persons who would be affected” by a change in water quality 

standards and had a “more particularized interest” in the outcome of the decision). 

The Third Circuit Court of Appeals also determined that standing existed in a similar 

case. In Am. Farm Bureau Fed’n v. U.S. E.P.A., the EPA published the TMDL of 

pollutants nitrogen, phosphorous, and sediment that could be released into Chesapeake 

Bay. 792 F.3d 281 (3d Cir. 2015), cert. denied sub nom. Am. Farm Bureau Fed’n v. E.P.A., 

136 S. Ct. 1246 (2016). Appellants were trade associations with members who would be 

affected by implementation of the TMDL. Id. at 287. The appellate court raised the issue 

of standing sua sponte. Id. at 292. The court acknowledged that there was “a plausible 

argument that [appellants’] injury is insufficiently particularized and too speculative,” as it 

was unclear “precisely what form new regulations will take.” Id. at 293. However, the 

court also recognized that appellants would “incur compliance costs when the TMDL is 

implemented and enforcement mechanisms are put in place,” and determined that 

appellants had standing to challenge the EPA’s approval of the TMDL. Id. at 292-94. 

Because relators stand to be adversely affected by a final decision from the MPCA 

which bears directly upon their personal interest, we determine that relators fit within the 
11 

definition of an “aggrieved party” and have statutory standing to challenge the MPCA’s 

action.2

 

II. The MPCA’s decision was supported by the factual record and by 

controlling federal and state law. 

a. Standard of Review 

The MPCA’s approval of a TMDL is a “final decision of the agency for purposes 

of section 115.05.” Minn. Stat. § 114D.25, subd. 2. We review a final decision of the 

MPCA under the Minnesota Administrative Procedures Act, Minn. Stat. §§ 14.63-.69 

(2014). Minn. Stat. § 115.05, subd. 11. We will affirm the MPCA’s decision unless its 

findings, inferences, conclusions or decisions are affected by an error of law, unsupported 

by substantial evidence in view of the entire record as submitted, or are arbitrary and 

capricious. Minn. Stat. § 14.69(b)-(f) (2014). We afford the decision of an administrative 

agency “a presumption of correctness” and defer to the agency’s expertise. In re N. Dakota 

Pipeline Co. LLC, 869 N.W.2d 693, 696 (Minn. App. 2015), review denied (Minn. Dec. 15, 

2015) (citation omitted). We defer to the agency’s decision as long as it is reasonable and 

supported by substantial evidence, and we will not replace the agency’s findings with our 

own. In re Rocheleau, 686 N.W.2d 882, 891 (Minn. App. 2004), review denied (Minn. 

Dec. 22, 2004). However, we are not bound by an agency’s rulings on matters of law and 

we review legal issues de novo. Cable Commc’ns Bd. v. Nor-west Cable Commc’ns P’ship, 

356 N.W.2d 658, 668-69 (Minn. 1984). “On appeal, the party challenging the agency’s 

 

2

 The MPCA also challenges whether relators have injury-in-fact standing. Because we 

determine that relators may assert a claim as aggrieved persons, we do not reach this 

argument. 
12 

decision [bears] the burden of proof.” In re Reichmann Land & Cattle, LLP, 847 N.W.2d 

42, 46 (Minn. App. 2014), aff’d, 867 N.W.2d 502 (Minn. 2015). 

b. The MPCA’s approval of the TMDL without a separate 

determination of “natural background” sources was neither an error 

of law nor arbitrary and capricious. 

EPA regulations define the TMDL for a pollutant as the sum of (1) the “wasteload 

allocation” for point source pollution; (2) the “load allocation” for nonpoint source or 

natural background pollution; and (3) a margin of safety. See 40 C.F.R. § 130.2(g)-(i); 

Minn. Stat. § 114D.15, subd. 10. “Natural background” includes those characteristics of a 

body of water “resulting from the multiplicity of factors in nature, including climate and 

ecosystem dynamics, that affect the physical, chemical, or biological conditions in a water 

body, but does not include measurable and distinguishable pollution that is attributable to 

human activity or influence.” Minn. Stat. § 114D.15, subd. 10. 

 In its report to the EPA, the MPCA explained its methodology for arriving at load 

allocations, wasteload allocations, and margins of safety.3

 The MPCA attributed zero 

discharge to point source categories such as wastewater treatment facilities, concentrated 

animal feeding operations, construction activities, and municipal and industrial stormwater 

sources. The MPCA attributed less than one percent to construction and industrial 

 

3

 “Wasteload allocation” is “[t]he portion of a receiving water’s loading capacity that is 

allocated to one of its existing or future point sources of pollution.” 40 C.F.R. § 130.2(h). 

“Load allocation” is “[t]he portion of a receiving water’s loading capacity that is attributed 

either to one of its existing or future nonpoint sources of pollution or to natural background 

sources.” Id., (g). Load allocations are “best estimates of the loading” and range “from 

reasonably accurate estimates to gross allotments, depending on the availability of data and 

appropriate techniques for predicting the loading.” Id. 
13 

stormwater, and applied a ten-percent margin of safety “to account for uncertainty” in the 

allocation. The remaining 89.9% was attributed to “nonpoint pollution sources” and 

“natural background sources.” 

Relators argue that the MPCA failed to separately distinguish the pollutant loads 

attributable to the “natural background” of Little Rock Creek from those attributable to 

nonpoint source loads. “Wherever possible, natural and nonpoint source loads should be 

distinguished.” 40 C.F.R. § 130.2(g). The MPCA acknowledges that the TMDL did not 

include a separate load allocation for natural background sources, but notes that “nearly 

the entire pollutant loading to Little Rock Creek is from nonpoint sources and natural 

background, and current research is not sufficient to differentiate between nonpoint and 

natural background sources of pollutants.” Our review of the record supports the MPCA’s 

assertion that “consideration of natural background enter[ed] into essentially every phase 

of MPCA water quality programs.” By way of example, the Stressor Identification Report 

reveals that the MPCA considered “physical,” “chemical,” “biological,” and “other” 

stressors in the Little Rock Creek watershed, and eliminated physical stressors such as 

“[e]levation, habitat variety, in-stream habitat, land use, riparian zone, warm-water vs. 

cold-water environments, lakebed sentiment, and wetlands/drainage” because such natural 

background sources “were not deemed to be primary causes of impairment based on the 

group’s professional judgment.” Instead, the MPCA determined that the Little Rock Creek 

watershed area “is highly altered by human influenced agricultural land uses.” 

The record supports the conclusion that the MPCA gathered and considered natural 

background sources but did not assign a separate load allocation to those sources due to 
14 

their marginal impact on Little Rock Creek’s overall water quality. This determination is 

consistent with Sierra Club, N. Star Chapter v. Browner, 843 F. Supp. 1304 (D. Minn. 

1993). The Sierra Club court recognized that the “plain language” of clean water 

regulations requires consideration of “both point, nonpoint, and natural sources” of 

pollutants in the water. Id. at 1313. In that case, the court found “no evidence” that the 

MPCA failed to consider nonpoint and natural sources of pollution when it developed the 

TMDL, and noted that the TMDLs may be based on point source pollution “when nonpoint 

and background sources have relatively little impact on water quality.” Id. at 1314. 

 Relators argue that the “plain language” of the statute requires the MPCA to develop 

a separate load allocation for the natural background of Little Rock Creek. Federal law 

instructs an agency to distinguish between natural and nonpoint source loads “[w]herever 

possible.” 40 C.F.R. § 130.2(g). However, Minnesota law does not compel the MPCA to 

develop a separate load allocation for natural background sources, distinct from nonpoint 

sources. A review of the statutory language is instructive. Chapter 114D defines a TMDL 

as “the sum of pollutant load allocations for all sources of the pollutant” based on four 

elements: “a wasteload allocation for point sources, a load allocation for nonpoint sources 

and natural background, an allocation for future growth of point and nonpoint sources, and 

a margin of safety.” Minn. Stat. § 114D.15, subd. 10. Relators argue that “nonpoint 

sources” and “natural background” should be interpreted as separate elements. This 

interpretation is not supported by the plain and unambiguous language of the statute. The 

portion of the statute that defines TMDL contains four clauses, each of which is separated 

by a comma from the other clauses. Id. The phrase “a load allocation for nonpoint sources 
15 

and natural background” is set off by commas from the remaining three clauses. Id. If 

“nonpoint sources” and “natural background” were intended to be read separately they 

would have been separated by a comma or other disjunctive phrase. See, e.g., State v. 

Rausch, 799 N.W.2d 19, 23 (Minn. App. 2011) (advising that statutory language that is not 

“subdivided or separated” should be read as a whole) (citing Munger v. State, 749 N.W.2d 

335, 338 (Minn. 2008) (stating that under “normal rules of grammatical construction,” a 

statute’s several parts will be interpreted separately when signified by a disjunctive 

conjunction or separated by a comma)). Here, “nonpoint sources” and “natural 

background” are not separated by a comma or otherwise set apart from one another. See 

Minn. Stat. § 114D.15, subd. 10. Thus, according to a plain and ordinary reading of the 

statute, the legislature chose not to separate “nonpoint sources” from “natural background.” 

Therefore, relators’ assertion that the statute requires the MPCA to develop an independent 

load allocation for nonpoint sources, as well as a second load allocation for natural 

background, is not well-founded. See Dupey v. State, 868 N.W.2d 36, 39 (Minn. 2015) 

(“[I]f the statutory language is unambiguous, [the court] must enforce the plain meaning of 

the statute and not explore the spirit or purpose of the law.”); Christianson v. Henke, 831 

N.W.2d 532, 536 (Minn. 2013) (discussing statutory interpretation). 

 Relators also argue that Minn. R. 7050.0170 “establishes a simple procedure for 

determining the ‘natural background’” that the MPCA failed to utilize. Rule 7050.0170 

provides that “[n]atural conditions exist where there is no discernible impact from point or 

nonpoint source pollutants attributable to human activity or from a physical alteration of 

wetlands.” Id. These “[n]atural background levels are defined by water quality 
16 

monitoring.” Id. “Where water quality monitoring data are not available, background 

levels can be predicted based on data from a watershed with similar characteristics.” Id. 

“Where background levels exceed applicable standards, the background levels may be used 

as the standards for controlling the addition of the same pollutants from point or nonpoint 

source discharges in place of the standards.” Id. Rule 7050.0170 does not control our 

analysis because relators have not identified any facts in the record suggesting that the 

natural background levels “exceed applicable standards.” Moreover, rule 7050.0170 

provides only that the agency “may” use natural background levels, and statutory 

construction informs us that “‘[m]ay’ is permissive.” Minn. Stat. § 645.44, subd. 15 

(2014). 

On appeal, this court defers to the MPCA’s expertise, In re N. Dakota Pipeline Co. 

LLC, 869 N.W.2d at 696, and we do not replace the agency’s findings with our own. In re 

Rocheleau, 686 N.W.2d at 891. Based upon the agency record before us, along with our 

de novo review of the governing statutory framework, we determine that the MPCA did 

not err by considering nonpoint sources and natural background sources together in the 

creation of the Little Rock Creek TMDL. 

c. The MPCA did not exceed its scope of authority. 

Relators argue that the MPCA exceeded the scope of its authority in approving the 

TMDL because only the DNR may regulate and control water usage in Minnesota. See

Minn. Stat. § 103G.255 (2014) (authorizing the commissioner of natural resources to 

allocate and control the waters of the state). Relators have not provided authority to support 

this contention. Federal regulations require states to establish TMDLs for water quality for 
17 

impaired waters and require that “[d]eterminations of TMDLs shall take into account 

critical conditions for stream flow, loading, and water quality parameters.” 40 C.F.R. 

§ 130.7(c)(1) (2014). A TMDL also accounts for “the normal water temperatures, flow 

rates, seasonal variations, existing sources of heat input, and the dissipative capacity of the 

identified waters” in determining the total maximum thermal load where water temperature 

is an issue. Id., (c)(2); see also 33 U.S.C. § 1313(c)(2)(A) (providing that a state’s water 

quality standards must be established “taking into consideration [each body of water’s] use 

and value”). For the reasons stated above, the MPCA correctly followed the procedures 

outlined by federal and state law in establishing a TMDL for Little Rock Creek and did not 

exceed its authority. 

III. The denial of a contested-case hearing was not error. 

 We review the denial of a contested-case hearing request under Minn. Stat. § 14.69. 

In re Solid Waste Permit for the NSP Red Wing Ash Disposal Facility, 421 N.W.2d 398, 

403 (Minn. App. 1988), review denied (Minn. May 18, 1988). A contested-case hearing 

must be held if: 

A. there is a material issue of fact in dispute concerning the 

matter pending before the board or commissioner; 

B. the board or commissioner has the jurisdiction to make a 

determination on the disputed material issue of fact; and 

C. there is a reasonable basis underlying the disputed material 

issue of fact or facts such that the holding of a contested 

case hearing would allow the introduction of information 

that would aid the board or commissioner in resolving the 

disputed facts in making a final decision on the matter. 

Minn. R. 7000.1900, subp. 1 (2009). 
18 

The party requesting a contested-case hearing bears the “burden of demonstrating 

the existence of material facts that would aid the agency before [it is] entitled to a contested 

case hearing.” Red Wing Ash Disposal Facility, 421 N.W.2d at 404. Conversely, a 

contested-case hearing is unnecessary if there are no material facts in dispute. In re 

Kandiyohi Co-op. Elec. Power Ass’n, 455 N.W.2d 102, 106 (Minn. App. 1990). The 

MPCA has wide discretion to determine whether a party has met its burden to show that a 

contested-case hearing is warranted. See, e.g., In re N. States Power Co. v. Wilmarth 

Indust. Solid Waste Incinerator Ash Storage Facility, 459 N.W.2d 922, 923 (Minn. 1990). 

Relators argue that the MPCA erred by denying their request for a contested-case 

hearing. The MPCA denied relators’ hearing requests on the ground that the petitions 

“fail[ed] to show the existence of a disputed material issue of fact” and instead disputed 

“the interpretation and application of law and guidance.” We agree. Relators’ petitions 

argued that nonpoint sources must be distinguished from natural background sources, and 

urged the MPCA to “properly determine the natural background levels of the load 

allocation” in light of this argument. The MPCA reasoned that hearings were unnecessary 

because relators’ petitions asserted questions of law or policy, as opposed to questions of 

fact.4

 

 

4

 On appeal, relators argue that the MPCA must make further findings on the natural 

background levels, which could be more completely resolved through the introduction of 

testimony and evidence at a hearing. Relators contend that they will submit evidence in 

the form of scientific studies, reports, and expert witness testimony to aid in establishing 

load allocations. However, relators have not offered specific facts or information 

buttressing this argument. See Red Wing Ash Disposal Facility, 421 N.W.2d at 404 (stating 

that party failed to raise any fact issues which could be resolved in a contested-case hearing 

because they did not provide “any indication of what specific new facts an expert might 
19 

We therefore conclude that the MPCA did not err by declining to grant a contestedcase hearing where the petitions asserted legal, rather than factual, arguments. See Costle 

v. Pac. Legal Found., 445 U.S. 198, 204, 100 S. Ct. 1095, 1100 (1980) (“If a request for 

an adjudicatory hearing raises only legal issues, a hearing will not be granted[.]”); In re 

Kandiyohi Co-op. Elec. Power Ass’n, 455 N.W.2d at 106 (“Where no genuine or material 

issue of fact is presented the court or administrative body may pass upon the issues of law 

after according the parties the right of argument.”) (quotations omitted). 

Affirmed. 

 

testify to”); Minn. R. 7000.1800, subp. 2(a) (predicating a hearing on the existence of a 

material issue of fact which supports “a board or commissioner decision to hold a contested 

case hearing”).