Letter to the Governor on the Environment and Natural Resources Omnibus Bill (HF888)

The Honorable Mark Dayton
Governor of Minnesota

The Honorable Tina Smith
Lieutenant Governor of Minnesota

130 State Capitol
75 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, MN 55155

May 3, 2017

Dear Governor Dayton and Lt. Governor Smith:

On behalf of the undersigned organizations and their hundreds of thousands of Minnesota members, we would like to thank you for your diligent attention to our collective environment and the current and future generations who depend on it. The Environment and Natural Resources Omnibus Bill Conference Committee has developed a consolidated position of which, no doubt, you are aware and will soon be considering. There are numerous provisions that are of great concern for the environment and conservation communities. While we are organizations with membership constituencies, our issues are not special interests. They affect every Minnesotan and millions of people beyond our state borders. Clean water, clean air, healthy soil and wildlife habitat are fundamental to our state’s physical well–being, economic vibrancy and quality of life.

Though we do not detail them all here, we share many of the agency concerns. And we are especially concerned by the extreme cuts to the core work of protecting our Great Outdoors. The Conference Committee proposes a $30 million reduction in general fund support for our environmental agencies, including totally eliminating general fund support for the Pollution Control Agency and cutting $22 million in operations support to local Soil and Water Conservation Districts. All this is being proposed during a time of budget surplus — and at a time when our air, land and water needs more investment, not less.

The following provisions in the current Conference Committee agreement are detrimental to the short and long-term health of our state and we ask you to stand strong and refuse to accept these provisions.

Buying Expedited Permits. (Department of Natural Resources)

Sec. 3 Page 36 Lines 36.2 – 36.28

This provision allows permit applicants to pay a fee in addition to the existing permit application fees to expedite the permitting process for their business. This disadvantages smaller businesses that may not have the resources to pay an expedited fee and are then put behind other businesses that do.

Expanding the Definition of Rules. (Department of Natural Resources)

Sec. 5 Page 37 Lines 37.12 – 37.24

This provision hobbles the DNR from carrying out their duties. It bars the DNR from enforcing against any permittee or polluter any guidance, policy, or interpretation that meets the definition of a rule under Minn. Stat. 14.02, without first conducting full Chapter 14 rulemaking, and creates a presumption against the agency in any challenges alleging that DNR is enforcing an un-adopted rule. The guidance, policy, and other interpretations provided by the DNR is intended to answer common questions, typically from regulated parties, about how the DNR’s rules and state law would be applied, without resorting to court action.

This provision also establishes presumption that DNR guidance documents are invalid, un-promulgated “rules.” This makes environmental regulation much more complex, time consuming and expensive – it’s the opposite of streamlining. It also invites litigation. Guidance documents that are truly being used inappropriately can already be challenged in court under existing law.

Removal of Contested Case and Appeal Options / Excluding Public Participation.

Sec. 56 – 57 Pages 63-65 Lines 63.13 – 65.28

These provisions taken together eliminate public participation in mining permits. It limits the right of affected citizens and local governments to have a “contested case” hearing on mining permits, allowing it only for adjacent property owners and affected governments. A contested case is an opportunity to present evidence, question industry and agency experts, and build a solid record to support smart decisions, including how lands can be reclaimed and what type and amount of financial assurance should be required from mining companies. Since 1969 this has been a right of citizens, guaranteeing public participation in important decisions that affect the whole state.

Rules Limiting Use of Lead Shot Prohibited.

Sec. 78 Pages 71 Lines 71.24 – 71.28

This provision restricts the DNR from using existing authority to reduce non-target mortality of birds (including Bald Eagles) and wildlife exposed to lead shot. Steel shot is readily available, performs similarly as lead, costs the same or less, and is non-toxic to birds and wildlife that ingest it. Modern ballistics have developed many superior ammunition loads and restricting the use of toxic lead shot makes environmental sense and does not impact Second Amendment rights.

Buffer Rollbacks

Authority to issue penalty orders limited to BWSR

Sec. 90 Pages 76 Lines 76.28 – 77.10

This provision removes the administrative penalty order option for counties and watershed districts to enforce buffer requirements, leaving this authority only with the Board of Water and Soil Resources. It is important that counties and watershed districts have the option to use administrative penalty orders to enforce buffer requirements.

Shoreland classification exempts 24,000 miles of waterways

Sec. 93 Pages 78-79 Lines 78.15 – 79.32

This provision limits the 50-foot buffer requirement to only those waterways that have a shoreland classification, leaving all other waterways subject to only the 16.5 foot buffer requirement. This exempts 200,000 acres and 24,000 miles of watercourses from 50-foot buffer requirements, rolling back many water protections that were in place before passage of the 2015 buffer law.

Buffer delays of two years

Sec. 93 Page 79 Lines 79.23 – 79.24

This provision delays implementation of 50-foot buffers for two years, despite Board of Water and Soil (BWSR) and local Soil and Water Conservation District (SWCD) reports that most counties already have 60 – 100% compliance with the law. It also delays the requirement for 16. 5 foot buffers on public drainage systems until 2020.

Seed mixes / Buffer law suspension

Sec. 93 Page 79 Lines 79.28 – 79.32

This provision requires that any new planting of buffers use only seed mixes that were grown and processed in Minnesota, and if those seeds cannot be found, the buffer requirement is not enforceable. This is an unnecessary restriction that would severely reduce buffer protections for water quality and wildlife habitat. Minnesota’s Seed and Noxious Weed statues already prohibit noxious weeds and provide a strict process for seed importation, labeling, and inspection. Recent incidence of Palmer Amaranth was the result of an illegal sale that is under investigation for enforcement action. The Minnesota Department of Agriculture has implemented an eradication program and focused its attention on preventing future seed contamination from outstate sources. The Minnesota grown restriction also eliminates planting common haying mixes for buffers. Haying and grazing are two ways that buffers can be used to benefit farmers. This law all but eliminates these options because there are few, if any, alfalfa, brome, or orchard grass mixes available from Minnesota. Additionally, alfalfa is highly beneficial for pollinators, who would be negatively affected by the loss of habitat and food sources.

Eliminates buffer requirement unless 100% paid for with state or federal assistance

Sec. 93 Pages 78-79 Lines 78.15 – 79.32

This provision eliminates the buffer requirement unless the state or federal government pays for the entire cost of establishing buffers and annual payments or an easement for the land.

Reducing Supply of Groundwater to Rare Calcareous Fens.

Sec. 100 Pages 87-88 Lines 87.20 – 88.18

Calcareous Fens are one of the rarest and most sensitive ecosystems in Minnesota. They support an unusually large number of rare and threatened plant species including several that live only in calcareous fens. Groundwater is their lifeblood. They are very susceptible to disruptions in their groundwater supply. When the native plants are stressed, aggressive invasive species move in to push them out. Once the invasive species have a foothold, they do not leave even if natural levels are returned. This provision requires that the DNR reduce the supply of groundwater and it will lead to an irreparable loss of many calcareous fens.

Bypassing Agency Scientists for Proposed Pollution Control Agency Actions.

Sec. 113 Pages 96-100 Lines 96.29 – 100.32

This additional layer of review takes the science out of agency decisions. It eliminates deference to PCA’s science when a water quality decision is challenged, and creates a special process for municipalities to end run existing expertise and challenge agency decisions. This to support a few municipalities that want to re-fight a losing battle over the state’s science based river eutrophication standards. Their science and arguments haven’t held up in front of agencies or courts, and this section creates a new opportunity to rehash the same arguments at taxpayer expense and delay.

Clean Air Act (VW) Settlement Money.

Sec. 126 Page 114 Lines 114.11 – 114.21

Minnesota is poised to gain $47 million from the VW settlement, but this provision could result in Minnesota missing out on those funds. The funds should be used under the guidance of the Trustee, to redress the public health effects of pollution from VW’s vehicles.

Buying Expedited Permits. (Pollution Control Agency)

Sec. 127 Pages 114 – 116 Lines 116.10 – 116.33

This provision allows permit applicants to pay a fee, in addition to the existing permit application fees, to expedite the permitting process for their business. This disadvantages smaller businesses that may not have the resources to pay an expedited fee and are then put in line behind other businesses that do.

Expanding the Definition of Rules. (Pollution Control Agency)

Sec. 129-130 Pages 117 – 118 Lines 117.18 – 118.3

This provision hobbles the MPCA from carrying out their duties. It bars the MPCA from enforcing against any permittee or polluter any guidance, policy, or interpretation that meets the definition of a rule under Minn. Stat. 14.02, without first conducting full Chapter 14 rulemaking, and creates a presumption against the agency in any challenges alleging that MPCA is enforcing an un-adopted rule. The guidance, policy, and other interpretations provided by the MPCA is intended to answer common questions, typically from regulated parties, about how the MPCA’s rules and state law would be applied, without resorting to court action.

This provision also establishes presumption that MPCA guidance documents are invalid, un-promulgated “rules.” This makes environmental regulation much more complex, time consuming and expensive – it’s the opposite of streamlining. It also invites litigation. Guidance documents that are truly being used inappropriately can already be challenged in court under existing law.

Elimination of Responsibilities for the Environmental Quality Board.

Sec. 134 Pages 119 – 120 Lines 119.25 – 120.10

This provision removes the jurisdiction for the Environmental Quality Board to consider and investigate environmental issues of community interest, including population and settlement patterns, air and water resources and quality, solid waste management, transportation and utility corridors, economically productive open space, energy policy and need, growth and development, and land use planning.

Environmental Review: Corporations to Write Their Own.
Sec. 137 Pages 124-125 Lines 124.27 – 125.3

This provision allows corporations to write their own environmental impact statements. This effectively puts the fox in charge of the hen house as this language restricts the government’s role to “review, modification and determination of completeness and adequacy” of an EIS. This is antithetical to the whole point of environmental review, which is to allow the regulator (and public) to gather information about environmentally harmful impacts of a project and alternatives. It also prevents the public from accessing all of the underlying data and analyses that support the EIS because private companies are not subject to data practices laws.

Notably, language the Senate had included that would make data used in writing the environmental review available to the public, has been dropped. The result is that data used by private companies to write their own environmental review remains private and unavailable for public evaluation.

Merchant Bags: Prohibit Local Government Bans.

Sec. 143 Page 131 Lines 131.1 – 131.13

This provision pre-empts local governments and prohibits them from banning or placing fees on plastic bags. Banning or charging a fee on plastic bags is a proven effective method of reducing air and water pollution, protecting wildlife and human health by keeping plastic out of our food stream and providing significant economic savings to communities. Local communities have already democratically voted to implement a bag ban, and this pre-emption bill erodes local control and overrides the political will of the residents.

Removal of PCA Requirement to Adopt Air Quality Standards and Environmental Review Standards for Frac Sand Operations

Sec. 146 Page 135 Lines 135.5 – 135.20

This provision removes the requirement that the MPCA adopt air quality standards for frac sand mines and the EQB adopt environmental review standards for this industry. Long-term low level exposure to silica dust can cause silicosis, which is fatal. Communities need these standards to protect their citizens.

Sand Dunes State Forest: Interference with Science-Based Management.

Sec. 152 Pages 137 – 138 Lines 137.26 – 138.0
This section does an end run around the existing well-established, science-based forest planning process that already includes the involvement of local citizens and representatives. Except for a pre-existing contract, if any, this section revokes the authority to restore any part of the forest to native oak savannah, of which less than 1% of Minnesota’s original oak savannah forest remains.

Groundwater Permits for Special Interests by Statute.

Sec. 153 Pages 138 – 139 Lines 138.20 – 139.13
This provision requires that the DNR issue a groundwater use permit to irrigators impacting calcareous fens in Pipestone County. The permit provides unprecedented special treatment not available to other permittees elsewhere. The special treatment includes a permit that is significantly longer than other water users can get. It also cannot be revoked within the first five years and after that then only under unfairly limited circumstances. Additionally, if DNR does find a reason to revoke the permit, state funds must pay for the private irrigation equipment already installed. After the initial fifteen-year term, the permit becomes irrevocable. DNR is also required to perform expensive monitoring and analysis of the impacts of the permit on nearby calcareous fens.

Effluent Limitation: Delaying Actions to Clean-up Polluted Water.

Sec. 158 Pages 140 Lines 140.15 – 140.25
This provision exempts cities that build new facilities from future technology updates to meet standards for clean water for 16 years. This provision broadly delays actions to clean-up pollution and creates more uncertainty for operators because it puts state-issued water pollution permits at odds with federal Clean Water Act requirements.

Thank you for your consideration.

Steve Morse
Minnesota Environmental Partnership