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Developer wins fight with Pollution Control Agency

By John Weiss

weiss@postbulletin.com

EYOTA -- The Minnesota Pollution Control Agency has paid $111,526 to an Eyota developer who successfully sued the agency after it tried to force him to build a stormwater retention pond.

A judge ruled the agency was wrong in demanding the pond on Wayne's Addition of Al Schumann's development, and in April ordered the agency to pay much of his costs. The agency considered appealing the decision, and payments, but decided to pay.

According to Schumann's attorney, that is the most the state has ever paid out under Minnesota Equal Access to Justice Act.

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Schumann, who was in the Legislature when the MPCA was formed, said he confronted the agency because he didn't believe the law required the pond. He believes the ruling will set a precedent that will stop the agency from incorrectly enforcing laws. "The PCA has been trying to make their laws through the courts," he said, and he hopes this will stop that. If the agency had appealed, and lost, it would have had to change how it does business, he said.

David Morrison, an agency pollution control specialist, however, said he doesn't believe the ruling, and judgment, will set a precedent. The agency disagrees with the judge's ruling but decided not to appeal it, he said.

The lawsuit revolved around the agency saying Schumann violated state law by not putting a stormwater pond on land he began to develop several years ago. In 2000, after he was done with the development, he said some people, who he described as his "political enemies," complained about runoff from the development.

The agency looked into it and decided Schumann violated the law. That got Schumann mad.

"The thing that made me decide (to sue) is because they were saying our engineers broke the law, the city engineer broke the law, and therefore, you are liable for this," he said. "The city engineers weren't wrong …; I knew they weren't wrong …; and I wasn't wrong."

He didn't have to put in a pond, he said, because the law says cities of less than 10,000 people (which includes Eyota) don't have to require ponds if they have some other way of treating stormwater runoff. Eyota has such a system, he said.

Also, the PCA said the runoff went into navigable waters. "We are far, far, far away" from such waters, he said.

If he had to build a pond, he would have had to buy back some of his own lots, build the pond and do other work that could have cost him $100,000. The fine itself would have been $4,450.

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Though he won the case and received a judgment, Schumann said he's still out $30,000 of his own money in legal expenses. But he said the money was worth it.

"It is to me," he said. "What's a man's reputation worth?"

Morrison, however, said the agency disagrees with the judge. The rules say a development with a least an acre of impervious surface needs treatment. Any runoff coming off any development in the region could eventually reach navigable waters because all land is in the watershed of some stream or river, he said.

While the MPCA did not appeal the judge's decision in the Schumann case, the agency will still enforce the law in other developments, Morrison said.

The intent of the law is to stop or slow dirt, nutrients, grease, oil and debris from running off during construction in developments as well as after the homes are occupied, he said. The basins allow the pollution to settle out before going into lakes or rivers, he said.

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