Letter to Conference Committee on SF 3656 Omnibus Supplemental Budget Bill

To:       Conference Committee on SF 3656 Omnibus Supplemental Budget Bill

            Senator and Committee Chair Rosen
            Senator Benson
            Senator Kiffmeyer                                                           
            Senator Limmer
            Senator Newman

            Representative and Committee Chair Knoblach       
            Representative Loon
            Representative Garofalo                                                 
            Representative Pelowski
            Representative Torkelson

May 10, 2018

Dear Omnibus Supplemental Budget Bill Conferees,

On behalf of the undersigned organizations and their thousands of Minnesota members, we would like to thank you for your attention to our shared environment and the current and future generations who depend on it, as well as highlight a number of provisions in the SF 3656 Omnibus Bill that are of great concern for the environment and conservation communities.

Listed in order of appearance within each subject.

Agriculture Policy

Rolling-back Groundwater Protection Act Authority to protect drinking water unless the rule is approved by the legislature.

House:            Page R13         Lines 24.21 – 24.23

Senate:            Page R13         Lines 312.1 – 312.3

This section impedes the MDA’s ability to protect our groundwater by putting unnecessary delays and legislative hurdles into an already lengthy and comprehensive public process. This provision undercuts the authority and ability of our state agencies to protect our public health and well-being.

An extensive body of research shows that nitrate from nitrogen fertilizer can leach below the root zone and migrate into our groundwater. Despite farmers’ widespread adoption of efficient nitrogen fertilizer application practices, the problem is getting worse:

• 537 public water supply wells across the state have elevated nitrate levels.
• More than 50 communities in MN are facing significantly elevated nitrate levels.
• Nearly 10% of MDA tested private wells in vulnerable areas exceed the Health Risk Limit (HRL), including some townships with 30-40% or more of private wells unsafe to drink.

Treating the well water or finding new drinking water sources can be prohibitively expensive for many rural communities and individuals and preventing this contamination is vital to protecting public health.                      

We ask that this provision be dropped from further consideration.

Energy Policy

Reducing Xcel Energy’s payment into the Renewable Development Account.

House:            Page R1 – R6              Lines 157.8 – 162.24

Senate:            Page R1 – R6              Lines 33.11 – 38.19

This provision restructures the formula for determining how much Xcel Energy should annually pay into the Renewable Development Account, changing it from a fee for each cask of dry storage of spent nuclear fuel to a flat fee. The net result of this change is a reduction of either at least $6 million (House language) or $10 million (Senate language) per year into the RDA, meant to fund research and development in renewable electric energy technologies, grid modernization (including storage) and projects that decrease demand for and increase efficiency of electricity use. In addition, this provision allows Xcel Energy to recover payments made into the RDA under this statute by charging a “rider” or extra fee to rate-payers.

We ask that this provision be dropped from further consideration.

Environment and Natural Resources

Backdating wetland replacement law in order to allow decisions the DNR made prior to 2009 regarding mining company wetland impacts to be legal – retroactively.

House:            None

Senate:            Page R 56        Lines 154.28 – 154.30

This section repeals requirements all other industries must follow on the location of replacement wetlands.

We ask that you accept the House position and not include this language.

Changing wetland replacement plans so that wetland banking credits are an acceptable mitigation measure for any natural resources damages.

House:            None

Senate:            Page R 56-57 Lines 155.23 – 155.28

This section makes “legal” the currently illegal wetland bank replacement plan proposed in the PolyMet draft permit, where they destroy outstanding natural resource value wetlands of several distinct types, and replace them with credits from a reclaimed sod farm in the Sax-Zim bank.

We ask that you accept the House position and not include this language.

Prohibiting DNR from imposing conditions or requiring testing when a landowner transfers his/her permit to a new owner, even where the old permitted amount is no longer sustainable.

House:            Page R57         Lines 66.20 – 66.26

Senate:            None

Groundwater is a public resource which landowners may make “reasonable use” of.  The amount that constitutes reasonable use is set by statute and amounts above this require a permit from DNR.  State law requires DNR to permit only amounts that are sustainable and which do not deplete the aquifer or negatively impact connected aquatic systems such as trout streams. Applications for DNR groundwater appropriation permits that allow pumping of huge volumes for irrigation have soared in the past 10 years and use is exceeding sustainability thresholds in some areas.

We ask that you accept the Senate position and not include this language.

Requiring DNR to pay for the installation of test wells if it denies approval of the groundwater appropriation permit.

House:            Page R57 – R58          Lines 66.27 – 66.29

Senate:            None

Today, state law requires water use permits for operations using more than 10,000 gallons per day or 1,000,000 gallons per year. The state may require a test well before a new water appropriation permit is granted to ensure that the proposed water use won’t compromise the aquifer or nearby wetlands. This provision would force the Department of Natural Resources to pay for the costs of any test well where an appropriation permit is denied. This ends up penalizing taxpayers and an already over-stressed DNR budget for the acquisition of data necessary for DNR to make their determination as to whether to grant a water appropriation permit or not.

We ask that you accept the Senate position and not include this language.

Requiring legislative approval for fees set by the Pollution Control Agency.

House:            Page R69         Lines 78.20 –78.21

Page R69-70   Lines 79.3–79.4

Page R72         Lines 81.26 –81.27

                        Page R73         Lines 82.6–82.7

                        Page R85         Lines 85 –91.30

Senate:            None

The PCA has not increased its fees since 1992. In 2017, MPCA fees fell $23.5 million short of covering program costs. Those program costs pay for the staff and resources to:

• write permits
• set discharge limits
• evaluate variance requests
• inspect facilities
• monitor for compliance
• enforce against non-compliance
• provide training and licensure to industry professionals
• certify laboratories

These shortfalls create delays in permitting, leave important tasks undone, and create uncertainty for permittees. This proposal would only make it more difficult to effectively and efficiently operate these programs. 

We ask that you accept the Senate position and not include this language.

Transferring water from one water body to another without a permit.

House:            Page R70         Lines 79.24 – 79.27

Senate:            Page R70         Lines 164.13 – 164.16

This provision allows waters to be moved from one body to another without a permit. Some waters are polluted and have aquatic invasive species, others are pristine. Current law protects the state’s cleanest waters by requiring a permit for a water transfer between water bodies. Agencies should retain this authority in order to prevent transfers that harm Minnesota’s waters.

We ask that this provision be dropped from further consideration.

Removing a requirement that temporary sugar beet waste ponds have liners to protect groundwater and surface water.

House:            None

Senate:            Page R 70        Lines 164.19- 164.25

We ask that you accept the House position and not include this language.

Accepting conflicts of interest among peer review members.

House:            None

Senate:            Page R72         Lines 165.30 – 165.32

This section codifies the acceptance of conflicts of interest among peer review members, so long as they are disclosed. This is an unacceptable degradation of independent peer review, which is supposed to rely on unbiased science.

We ask that you accept the House position and not include this language.

Giving industry 16 years to meet water quality standards.

House:            Page R72         Lines 81.15 – 81.21

Senate:            Page R72         Lines 166.15 – 166.21

This provision allows a municipality or an industry that has already constructed or made improvements to a water treatment facility in order to meet water quality standards a 16-year pass for meeting any other water quality standards that may be developed. Similar language was passed by the legislature last year – though only for municipalities.

An Administrative Law Judge rejected the rulemaking that resulted from last year’s legislation because it was not in compliance with the federal Clean Water Act. The provision is back again this year, now granting the 16-year holiday to industries as well. Water quality standards are developed to protect human health and the viability of our waters for important uses.   If new water quality standards are established, polluters should be required to meet those new standards through the permitting process.

We ask that this provision be dropped from further consideration.

Undermining the state’s air quality program by introducing confusing language and requiring special documentation when Minnesota wants to be more protective than the federal standard.

House:            None

Senate:            Page R 84        Lines 175.7 – 175.10

We ask that you accept the House position and not include this language.

 Changing the definition of pipeline in the routing permit chapter to mean “a pipeline owned or operated by a condemning authority.

House:            None

Senate:            Page R 94        Lines 177.0 – 177.15

This provision did not receive any hearings, was not introduced as a bill and narrows the definition of pipelines for purposes of the pipeline siting laws for reasons that have not been explained.

We ask that you accept the House position and not include this language.

Jeopardizing native species by delaying needed conversion back to pre-settlement condition of oak-Savannah, oak woodland or prairie.

House:            R 106              Lines  104.2 – 104.3

Senate:            None

This provision extends an unfortunate conversion moratorium put into law last year in Sand Dunes State Forest (SDSF) from two years to six years.

Sand Dunes State Forest is home to nearly 1/5 of all species identified as “Species in Greatest Conservation Need” by the State in the Minnesota Wildlife Action Plan. A few species are now believed to be extinct from the property due to prior lack of management for rare species. Converting a portion of the forest back to its pre-settlement condition is important to prevent further loss. In addition, the State and partnering organizations have already invested significant amounts of time and funding toward the restoration of SDSF. Extending the moratorium is financially irresponsible and jeopardizes previous investments by the State and conservation organizations.

We ask that you accept the Senate position and not include this language.

Relieving enforcement of groundwater appropriation permit requirements.

House:            Page R108       Lines 106.8 – 106.32

Senate:            Page R108       Lines 187.14 – 188.7

This provision suspends an existing legal directive for sustainable groundwater management in the northeast metro. If passed into law, the bill would result in two branches of government (Judicial & Legislative) offering conflicting instructions for the Executive branch (the Department of Natural Resources), putting sustainable water management (and water levels in White Bear Lake) in peril.

We ask that this provision be dropped from further consideration.

Nullifying the water quality standard and science protective of wild rice.

House:            Page R117- 120          Lines 109.11 – 112.26

Senate:            Page R117 – 120         Lines 2.10 – 5.30

Wild rice is a sensitive grain and a “canary in the ecological coal mine.” For decades we have known that concentrated sulfate levels harm wild rice and the waters in which it grows. Today, we know even more about the complex relationship sulfate plays in the water and sediment — from diminishing aquatic diversity to releasing phosphorous and nitrogen that foster algae, and increasing the methylation of mercury that is toxic to fish and the humans who consume them.

Studies conducted by the University of Minnesota and paid for by Minnesota tax-payers with $1.5 million from the Clean Water Fund have confirmed that sulfate discharge both harms wild rice and increases mercury methylation.

This provision would nullify Minnesota’s existing water quality standard that limits sulfate pollution in wild rice waters. Two recent decisions by Minnesota’s Office of Administrative Hearings have confirmed that eliminating this water quality standard would fail to protect wild rice and would violate the federal Clean Water Act. The Governor has vetoed this provision when presented as a stand-alone bill . 

To pass this provision would not only be a failure to protect our wild rice and water for the natural resource that it is, but also a blatant disregard of the science that forms the foundation of our public health.

We ask that this provision be dropped from further consideration.

Public Safety

Increasing Penalties for trespass on certain infrastructure.

House:            Page R1 – R2              Lines 431.20  – 432.8

Senate:            None.

This provision is unnecessary and vague as Minnesota law already addresses criminal trespass of critical infrastructure, as well as criminal conspiracy and aiding and abetting. Minnesotans also shouldn’t be held liable for other people’s actions. The freedom to assemble is an absolute right; there should not be more severe punishment for assembly of a specific group or regarding a specific issue.

We ask that you accept the Senate  position and not include this language.

Thank you for your consideration.

Steve Morse

Minnesota Environmental Partnership

Alliance for Sustainability

Clean Water Action – Minnesota

CURE (Clean Up the River Environment)

Environment Minnesota

Freshwater Society

Friends of the Boundary Waters Wilderness

Friends of Minnesota Scientific & Natural Areas

Friends of the Mississippi River

Izaak Walton League – Minnesota Division

Land Stewardship Project

Lower Phalen Creek Project

Minnesota Center for Environmental Advocacy

Minnesota Council of Parks and Trails

Minnesota Land Trust

Minnesota Native Plant Society

Minnesota Ornithologists Union

MN350

Pollinator Friendly Alliance

Save Our Sky Blue Waters

St. Croix River Association

WaterLegacy

Wilderness in the City

Women’s Congress for Future Generations