HF 3280

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 04/09/2018 04:33pm

A bill for an act
relating to environment; establishing findings and authorizing listing of wild-rice
waters; nullifying and restricting the application of certain water quality standards;
requiring a report; appropriating money; amending Laws 2015, First Special Session
chapter 4, article 4, section 136, as amended.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Laws 2015, First Special Session chapter 4, article 4, section 136, as amended
by Laws 2017, chapter 93, article 2, section 149, is amended to read:

Sec. 136. WILD RICE WATER QUALITY STANDARDS.

(a) Until the commissioner of the Pollution Control Agency amends rules refining the
wild rice water quality standard in Minnesota Rules, part 7050.0224, subpart 2, to consider
all independent research and publicly funded research and to include criteria for identifying
waters and a list of waters subject to the standard, implementation of the wild rice water
quality standard in Minnesota Rules, part 7050.0224, subpart 2, shall be limited to the
following, unless the permittee requests additional conditions:

(1) when issuing, modifying, or renewing national pollutant discharge elimination system
(NPDES) or state disposal system (SDS) permits, the agency shall endeavor to protect wild
rice, and in doing so shall be limited by the following conditions:

(i) the agency shall not require permittees to expend money for design or implementation
of sulfate treatment technologies or other forms of sulfate mitigation; and

(ii) the agency may require sulfate minimization plans in permits; and

(2) the agency shall not list waters containing natural beds of wild rice as impaired for
sulfate under section 303(d) of the federal Clean Water Act, United States Code, title 33,
section 1313, until the rulemaking described in this paragraph takes effect.

(b) Upon the rule described in paragraph (a) taking effect, the agency may reopen permits
issued or reissued after the effective date of this section as needed to include numeric permit
limits based on the wild rice water quality standard.

deleted text begin (c) The commissioner shall complete the rulemaking described in paragraph (a) by
January 15, 2019.
deleted text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 2. new text begin WILD RICE; LEGISLATIVE FINDINGS.
new text end

new text begin (a) The legislature finds that naturally occurring wild rice is an ecologically and culturally
important aquatic plant resource found in certain waters within the state, which serves as a
food source for wildlife and humans. The legislature further finds that in recognition of the
unique importance of this resource, the Pollution Control Agency, in conjunction with
Minnesota Indian tribes, has identified and listed, in rule, select wild-rice waters for which
the water quality and the aquatic habitat necessary to support the propagation and
maintenance of wild rice must not be materially impaired or degraded. The legislature also
finds that identifying and listing additional wild-rice waters based upon their exceptional
wild-rice characteristics is an appropriate method of protecting naturally occurring wild
rice.
new text end

new text begin (b) The legislature further finds that federal law vests broad authority in the state to
define beneficial uses for waters for the state and grants the state the primary responsibility
and right to plan the development and use of the state's water resources and to specify
appropriate water uses to be achieved and protected. The legislature also finds that certain
waters of the state are used to irrigate wild rice intentionally grown as an agricultural crop,
which is an appropriate beneficial use to be achieved and protected and which is the only
established beneficial use specifically pertaining to wild rice. The legislature also finds that
Minnesota has a unique numeric water quality standard for sulfate in rule to protect this
beneficial use to permit the use of waters for irrigation for the production of wild rice that
is based on outdated information and ignores the current scientific understanding of the
potential impacts of sulfate on wild rice.
new text end

new text begin (c) The legislature further finds that it is contrary to the public welfare to impose
requirements or burdens on regulated parties in Minnesota on the basis of a water quality
standard that ignores current science. The legislature also finds that the water quality standard
for sulfate has not been enforced in Minnesota since it was adopted in 1973, that the Pollution
Control Agency has not designated in rules any waters subject to the water quality standard
for sulfate, and that initiating enforcement of the existing obsolete standard would impose
prohibitively expensive burdens on regulated parties with potentially grave economic impacts
on Minnesota communities and industry.
new text end

new text begin (d) In recognition of the existence in rule of a water quality standard for sulfate that is
not supported by current scientific information, in recognition of the potentially grave
consequences that would occur from enforcement of that obsolete standard, and recognizing
that the administrative process to repeal the rule has proven to be inefficient and will not
provide the regulatory certainty required in a timely manner in the absence of legislative
action, the legislature finds that the most effective means to serve the welfare of the state
is to enact sections 3 to 8 to eliminate the water quality standard for sulfate, leaving in place
sufficient other provisions in law and rule for the protection of naturally occurring wild
rice, including but not limited to the listing of additional select wild-rice waters.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 3. new text begin WATER QUALITY STANDARD FOR SULFATE; RULEMAKING.
new text end

new text begin The commissioner of the Pollution Control Agency may not adopt, modify, or proceed
with any revisions to the rules pertaining to water quality standards for sulfate for wild-rice
waters in Minnesota Rules, part 7050.0224, subpart 2, that were disapproved by the chief
administrative law judge on January 11, 2018, without again going through the rulemaking
procedures under Minnesota Statutes, sections 14.05 to 14.28, except Minnesota Statutes,
section 14.101, does not apply.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective retroactively from January 11, 2018.
new text end

Sec. 4. new text begin IDENTIFICATION AND LISTING OF WILD-RICE WATERS.
new text end

new text begin The commissioner of the Pollution Control Agency may evaluate the waters of the state
to determine if any additional waters containing naturally occurring wild rice have exceptional
wild-rice characteristics. The commissioner may, by rule, identify and list these waters as
[WR] waters where the water quality and the aquatic habitat necessary to support the
propagation and maintenance of wild rice must not be materially impaired or degraded.
Before identifying and listing a wild-rice water, the commissioner must establish, in a
separate and prior rulemaking, criteria to be used in identifying and listing wild-rice waters.
The criteria must include the following, each of which must be met before a water body
can be identified and listed as a wild-rice water:
new text end

new text begin (1) the history of harvesting wild rice;
new text end

new text begin (2) minimum acreage; and
new text end

new text begin (3) minimum density of wild rice.
new text end

Sec. 5. new text begin APPLICATION OF WATER QUALITY STANDARD FOR SULFATE FOR
WILD-RICE WATERS.
new text end

new text begin The commissioner of the Pollution Control Agency must not apply the water quality
standard for sulfate for wild-rice waters nullified in this act when issuing, modifying, or
renewing national pollutant discharge elimination system or state disposal system permits.
The commissioner of the Pollution Control Agency must take all steps necessary to conform
the agency's rules and practices to this act and to ensure that no regulated party is required
to take any action or bear any burden arising from the nullified water quality standard for
sulfate unless requested by the permittee.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 6. new text begin APPLICATION OF EQUATION-BASED WATER QUALITY STANDARD
FOR WILD-RICE WATERS.
new text end

new text begin The commissioner of the Pollution Control Agency must not apply the proposed
equation-based sulfate standard rejected by the chief administrative law judge on January
11, 2018, including as a numeric translator to the narrative sulfate standard for wild rice
under Minnesota Rules, part 7050.0150, subpart 3, or 7050.0224, subpart 1, when issuing,
modifying, or renewing national pollutant discharge elimination system or state disposal
system permits.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 7. new text begin APPLICATION OF WATER QUALITY STANDARDS; IRRIGATION.
new text end

new text begin The commissioner of the Pollution Control Agency must not apply a water quality
standard established to protect water quality for purposes of permitting the water's use for
irrigation without significant damage or adverse effects upon crops or vegetation, including
water used for the production of wild rice, unless the water is appropriated for irrigation
use.
new text end

Sec. 8. new text begin NULLIFICATION OF WATER QUALITY STANDARD FOR SULFATE
IN WILD-RICE WATERS.
new text end

new text begin (a) Notwithstanding Minnesota Rules, part 7050.0224, subpart 2, there is no numeric,
nonnarrative, water quality standard for sulfates in class 4A waters in the state until the
commissioner of the Pollution Control Agency adopts a standard in accordance with section
3.
new text end

new text begin (b) That portion of Minnesota Rules, part 7050.0224, subpart 2, that conflicts with
paragraph (a) is nullified and does not have the force and effect of law.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end

Sec. 9. new text begin APPROPRIATION; WILD RICE WORK GROUP; REPORT.
new text end

new text begin (a) $50,000 in fiscal year 2018 is appropriated from the heritage enhancement account
in the game and fish fund to the commissioner of natural resources to convene a wild rice
work group and prepare a report to leverage the expertise of state, tribal, and public experts
to ensure maximum benefit for natural wild rice growth is achieved as a result of restoration
and enhancement activities. This is a onetime appropriation and is available until June 30,
2019.
new text end

new text begin (b) The commissioner of natural resources must submit a report to the state's tribal
governments and the chairs and ranking minority members of the legislative committees
and divisions with jurisdiction over environment and natural resources by January 15, 2019,
that:
new text end

new text begin (1) describes an evaluation program developed to examine the primary hydrological,
biological, and physical risks to natural wild rice health in priority wild-rice waters;
new text end

new text begin (2) includes tailored restoration activities to improve natural wild rice health in priority
wild-rice water bodies and to monitor the effectiveness of restoration and protection activities;
new text end

new text begin (3) identifies best management practices for natural wild rice protection and restoration
and recommendations for expanding the use of effective best management practices;
new text end

new text begin (4) identifies areas in which to implement the best management practices; and
new text end

new text begin (5) provides recommendations for creating a long-term wild rice work group, including
membership structure, to advise the commissioner on natural wild rice management.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment.
new text end