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1212712004 �4N 9 , � � � �A� 218 283 1162 Koo�h Co�rt Ad�zn � �� evidence support a findin� that flow v��i?� the North Kooch system has no i�.�a� on the percent rc;moval rate su�d the flow from T�c��sh Bay will not contribute to �� perccnt removal prob�e��s, such as they are, for North Kooch. 41 _ The M�'CA has issued corntn�ndatiqn� to North Kooch four out of the last five years � and seven out of the last ten years for compliance �th its Nk'��S permit and North _ Kooch bas �ev�r been cited for a violatinn of its permit. C4NCL�I��iQNS OF LAW 1. To establish a prima facie case under MERA, a plaintiffmust show (1) the c�ist�nce of a protectable natural resource; ar,c� (2) t1�� defendant's conduct will or is li�el� to cause pollution, impairment or dcst7ructi¢� ofthat resource. State by �'ch�tller v. Caunty ofBlue Earth, 563 N.W.2d 260,264 (Minn. 1997). MERA defines "pollution, impairment or destruction," as"any conduct by any person which violates, or i S likely to v�olatc" any environmental quality'standard, p�nrz�it, or similar ru�e, or "any conduct which materially adversely affects or is likely t� materially adversely affect the en�i�o��ne�.t," Mzru�. Stat. � 116L3.02, snbd. �. 2. Because almost every human activity adversely impacts a uatural resource, and MERA cannot be construed"'as prohibiting virtually all human enterprise,' " Sehailer, 563 N.W.2d at 265, quoting State ex re�_ yYacoutct Township v. Brunkow Hardwood Corporation, 510 N.W2d 27.30 (Mii�i. Qa,p�. ��r the following factors arc consideredto dete�inc: ^whe;her conduct materially adversely ��'ects, or is'likelyto materially adversely affect, t�ie environment, � and therefore, whether the second prong of a prima facie MERA case has bcen established: .� (1) The quality and severity of any a�iverse effects p�f �l�e proposcc� action on the i�at��z•al resources affected; �2� Whether the natural resources affected are rare, unique, endangered, or have historical si�ificance; 1�