This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Minnesota Center for Environmental Advocacy,



Minnesota Pollution Control Agency,


Wild Rice Watershed District,


Filed August 18, 1998


Davies, Judge

Minnesota Pollution Control Agency

Keith S. Moheban, James J. Sticha, Leonard, Street and Deinard, P.A., 150 South Fifth St., Suite 2300, Minneapolis, MN 55402 (for relator)

Mark F. Ten Eyck, Minnesota Center for Environmental Advocacy, 26 East Exchange St., Suite 206, St. Paul, MN 55101 (for relator)

Hubert H. Humphrey III, Attorney General, John K. Lampe, Richard P. Cool, Assistant Attorneys General, 445 Minnesota St., Suite 900, St. Paul, MN 55101-2127 (for respondent Minnesota Pollution Control Agency)

Rebecca A. Comstock, Alexandra B. Klass, Erik W. Scharf, Dorsey & Whitney, L.L.P., Pillsbury Center South, 220 South Sixth St., Suite 1300, Minneapolis, MN 55402-1498 (for respondent Wild Rice Watershed District) Considered and decided by Harten, Presiding Judge, Davies, Judge, and Holtan, Judge.*



Relator seeks certiorari review of a Minnesota Pollution Control Agency Clean Water Act Section 401 certification. We dismiss as moot.


The Marsh Creek Flood Control Project (project) is a floodwater impoundment project proposed for Marsh Creek in northwestern Minnesota. The project, an earthen dam one-quarter mile long and 23 feet high, will be utilized to store Marsh Creek floodwater. In flood years, the impounded floodwater may, for a maximum storage time of 15 days, inundate from 225 to 330 acres, including 145 acres of wetlands. Construction of the project will necessitate discharging fill into 1.7 acres of wetlands.

In July 1992, respondent Wild Rice Watershed District (District) submitted to the U.S. Army Corps of Engineers (Corps) a project Section 404 permit application. On January 27, 1995, the Corps issued a public notice regarding the Section 404 permit application. The notice described the project and invited public comment. The notice also stated:

This Public Notice has been sent to the Minnesota Pollution Control Agency and is considered by the District Engineer to constitute valid notification to that agency for water quality certification. The Minnesota Pollution Control Agency has indicated that it intends to review this project to determine the appropriate action under Section 401 of the Clear Water Act.

Thirteen months later, the Corps advised respondent Minnesota Pollution Control Agency (PCA) that the Corps considered the Clean Water Act Section 401 certification waived because the PCA had taken no certification action within a year of the public notice. The letter requested from the PCA any final comments on the project within 30 days.

On July 24, 1997, the Corps issued a Section 404 permit. This permit is still "unexecuted," however, for it has not yet been signed by the District. The PCA issued its Section 401 certification on August 13, 1997. In September 1997, relator Minnesota Center for Environmental Advocacy by certiorari appeal challenged the PCA's Section 401 certification. The Corps, a respondent in the action, removed the case to federal district court. The federal district court subsequently dismissed the Corps from the action and returned the case to this court.


Section 401 of the Clean Water Act provides:

Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate * * * that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. * * * If the State [here the PCA], interstate agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived as provided in the preceding sentence.

33 U.S.C. § 1341(a)(1) (1994) (emphasis added); see also Minn. R. 7001.1460 (1997) (PCA waives authority to issue Section 401 certification if it fails to make final determination within one year after receipt of application).

Relator argues that the PCA's Section 401 certification is invalid because the PCA failed to follow its procedural rules and because the certification was arbitrary and capricious. The District, on the other hand, contends that by failing to timely act on the Corps' request for certification the PCA waived its Section 401 certification, and that this challenge to the 401 certification is meaningless.

A Section 404 permit is needed before fill can be discharged into wetlands. 33 U.S.C. § 1341(a)(1). The Corps granted the Section 404 permit based on its determination that, because the PCA had failed to act within a year of public notice, the state certification requirement had been waived. See id. (federal permit can be granted once Section 401 certification has been obtained or waived).

The PCA's belated certification has no impact on the previously issued Section 404 permit, nor does it affect the District's ability to go forward with the project. Any determination by this court as to the validity of the certification would, as a consequence, have no legal effect. Any legal challenge at this point would have to be to the Corps' Section 404 permit and would have to be brought in federal court.[1]

This court cannot grant effectual relief at this time. Relator's appeal of the PCA 401 certification is, therefore, moot. See In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989) (if court cannot grant effectual relief, issue is moot). Because we dismiss as moot, we do not address the PCA's argument that relator has suffered no "injury in fact" and therefore lacks standing to challenge the Section 401 certification. Further, the various motions to supplement the record are denied as moot.


*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] If the federal court considered validity of the PCA certification relevant and doubtful, it could, under the Uniform Certification of Questions of Law Act, certify that question to the Minnesota Supreme Court. See Minn. Stat. § 480.061, subd. 1 (1996) (supreme court may answer questions of law certified to it by federal district or appellate courts).