HF 426

1st Engrossment - 83rd Legislature (2003 - 2004) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to state government; rulemaking; requiring 
  1.3             certain water quality assessment process rules. 
  1.4   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.5      Section 1.  [WATER QUALITY ASSESSMENT PROCESS; RULEMAKING.] 
  1.6      (a) By January 1, 2004, the commissioner of the pollution 
  1.7   control agency shall adopt rules under Minnesota Statutes, 
  1.8   section 14.389, relating to water quality assessment for the 
  1.9   waters of the state, for the determination of impaired waters as 
  1.10  required by Section 303(d) of the Clean Water Act of 1977, 
  1.11  United States Code, title 33, chapter 26, section 1313(d), and 
  1.12  the corresponding development of total maximum daily load plans. 
  1.13  Minnesota Statutes, section 14.389, subdivision 5, applies to 
  1.14  rulemaking under this section.  The rules must amend or 
  1.15  supersede the rules specified in section 2.  The adopted rules 
  1.16  must, at a minimum, satisfy paragraphs (b) to (i). 
  1.17     (b) The rules must define key terms, including, but not 
  1.18  limited to:  "degraded in any material manner"; "material 
  1.19  increase in undesirable slime growths or aquatic plants, 
  1.20  including algae"; "significant increase in harmful pesticide or 
  1.21  other residues"; "normal fishery and lower aquatic biota"; 
  1.22  "seriously impaired or endangered"; "altered materially"; and 
  1.23  "fish and other biota normally present." 
  1.24     (c) The rules must identify all of the factors to be 
  2.1   considered by the pollution control agency in determining 
  2.2   whether a lake, river, stream, or segment thereof is considered 
  2.3   to be "impaired" for purposes of the impaired waters list 
  2.4   required by United States Code, title 33, chapter 26, section 
  2.5   1313(d), and identify the process that the agency will use to 
  2.6   develop and implement corresponding total maximum daily load 
  2.7   plans, including the procedures used to determine wasteload 
  2.8   allocations as part of a total maximum daily load plan, and the 
  2.9   procedures for review and comment by the public prior to 
  2.10  adoption of a total maximum daily load plan.  The factors 
  2.11  identified in the rules must be limited to those which may be 
  2.12  related to pollutants, as the term "pollutant" is defined in 
  2.13  United States Code, title 33, chapter 26, section 1362(6). 
  2.14     (d) The rules must provide that the agency shall consider 
  2.15  all factors contained in the rule, for which the agency has 
  2.16  reasonably current and reliable data and information, considered 
  2.17  in a "weight of evidence" approach, to determine the existence 
  2.18  of an impaired water condition. 
  2.19     (e) The rules must provide that a person affected by the 
  2.20  inclusion of all or a segment of a lake, river, or stream on the 
  2.21  list required by United States Code, title 33, section 1313(d), 
  2.22  may petition the agency for a water quality use assessment, 
  2.23  consistent with Minnesota Statutes, section 115.44, before a 
  2.24  total maximum daily load is adopted for all or a segment of that 
  2.25  lake, river, or stream. 
  2.26     (f) The rules must provide that where the agency has 
  2.27  information or is presented with information demonstrating that 
  2.28  a designated use for a water body does not exist or is not 
  2.29  attainable, or is not reasonably expected to exist or be 
  2.30  attainable, due to the natural condition of the water body, the 
  2.31  agency shall initiate an appropriate administrative process to 
  2.32  eliminate this unattainable use. 
  2.33     (g) The rules must provide in determination of impairment 
  2.34  due to nutrients that they only apply to waters with:  (1) a 
  2.35  demonstrated aquatic life or swimming use, and (2) the same or 
  2.36  similar physical characteristics to the water bodies used to 
  3.1   establish the target nutrient levels or nutrient objectives. 
  3.2      (h) The rules must provide that the agency, in considering 
  3.3   impairment due to nutrients and application of nutrient 
  3.4   objectives and effluent limitations related to riverine systems 
  3.5   or riverine impoundments, must consider temperature and 
  3.6   detention time effects on algal populations and impose reduction 
  3.7   requirements only when the discharge of nutrients is expected to 
  3.8   cause algal growth that is demonstrated to impair existing 
  3.9   uses.  The rule may not apply to riverine systems or riverine 
  3.10  impoundments, unless the agency has demonstrated that swimming 
  3.11  and aquatic life uses are attainable and impaired due to 
  3.12  excessive algae. 
  3.13     (i) The rules must provide that where natural or 
  3.14  nonnutrient-related conditions preclude or limit aquatic or 
  3.15  recreational use of a water body, the agency shall not apply 
  3.16  either the rule or the guidance document to those waters, and 
  3.17  before applying any "biological index" to list any water as 
  3.18  impaired, the agency shall first demonstrate that water quality 
  3.19  is the specific cause of the reduction in aquatic life present 
  3.20  at the site and not other naturally occurring factors. 
  3.21     Sec. 2.  [EFFECT ON EXISTING ADOPTED WATER QUALITY 
  3.22  ASSESSMENT PROCESS RULES.] 
  3.23     Notwithstanding Minnesota Statutes, chapter 14, Minnesota 
  3.24  Rules, parts 7050.0150, 7050.0210, 7050.0222, and 7050.0470, as 
  3.25  adopted with the modifications published in the State Register 
  3.26  on January 27, 2003, are not effective and may not be enforced 
  3.27  until the rules as provided in this section are adopted. 
  3.28     Sec. 3.  [EFFECTIVE DATE.] 
  3.29     Sections 1 and 2 are effective the day following final 
  3.30  enactment.