HF 3908

as introduced - 90th Legislature (2017 - 2018) Posted on 03/15/2018 02:31pm

A bill for an act
relating to natural resources; modifying Clean Water Legacy Act; providing for
coordinated watershed management; amending Minnesota Statutes 2016, sections
103B.3369, subdivisions 5, 9; 103B.801, subdivisions 2, 5; 114D.15, subdivisions
7, 11, 13, by adding subdivisions; 114D.20, subdivisions 2, 3, 5, 7, by adding
subdivisions; 114D.26; 114D.35, subdivisions 1, 3; proposing coding for new law
in Minnesota Statutes, chapter 114D.

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

Section 1.

Minnesota Statutes 2016, section 103B.3369, subdivision 5, is amended to read:

Subd. 5.

Financial assistance.

A base grant new text begin , contract, or payment new text end may be awarded to a
county new text begin or other local unit of government new text end that provides a match utilizing a water
implementation tax or other local source. A water implementation tax that a county new text begin or other
local unit of government new text end intends to use as a match to the base grant must be levied at a rate
sufficient to generate a minimum amount determined by the board. The board may award
performance-based new text begin or watershed-based new text end grants new text begin , contracts, or payments new text end to local units of
government that are responsible for implementing elements of applicable portions of
watershed management plans, comprehensive plans, local water management plans, or
comprehensive watershed management plans, developed or amended, adopted and approved,
according to chapter 103B, 103C, or 103D. Upon request by a local government unit, the
board may also award performance-based grants to local units of government to carry out
TMDL implementation plans as provided in chapter 114D, if the TMDL implementation
plan has been incorporated into the local water management plan according to the procedures
for approving comprehensive plans, watershed management plans, local water management
plans, or comprehensive watershed management plans under chapter 103B, 103C, or 103D,
or if the TMDL implementation plan has undergone a public review process. Notwithstanding
section 16A.41, the board may award deleted text begin performance-based deleted text end grants new text begin , contracts, or payments new text end on
an advanced basis. The fee authorized in section 40A.152 may be used as a local match or
as a supplement to state funding to accomplish implementation of comprehensive plans,
watershed management plans, local water management plans, or comprehensive watershed
management plans under this chapter and chapter 103C or 103D.

Sec. 2.

Minnesota Statutes 2016, section 103B.3369, subdivision 9, is amended to read:

Subd. 9.

Performance-based criteria.

The board deleted text begin shall deleted text end new text begin may new text end develop and utilize
performance-based criteria for local water resources restoration, protection, and management
programs and projects. The criteria may include but are not limited to science-based
assessments, organizational capacity, priority resource issues, community outreach and
support, partnership potential, potential for multiple benefits, and program and project
delivery efficiency and effectiveness.

Sec. 3.

Minnesota Statutes 2016, section 103B.801, subdivision 2, is amended to read:

Subd. 2.

Program purposes.

The purposes of the comprehensive watershed management
plan program under section 103B.101, subdivision 14, paragraph (a), are to:

(1) align local water planning purposes and procedures under this chapter and chapters
103C and 103D on watershed boundaries to create a systematic, watershed-wide,
science-based approach to watershed management;

(2) acknowledge and build off existing local government structure, water plan services,
and local capacity;

(3) incorporate and make use of data and information, including watershed restoration
and protection strategies under section 114D.26 new text begin , which may serve to fulfill all or some of
the requirements under chapter 114D new text end ;

(4) solicit input and engage experts from agencies, citizens, and stakeholder groups;

(5) focus on implementation of prioritized and targeted actions capable of achieving
measurable progress; and

(6) serve as a substitute for a comprehensive plan, local water management plan, or
watershed management plan developed or amended, approved, and adopted, according to
this chapter or chapter 103C or 103D.

Sec. 4.

Minnesota Statutes 2016, section 103B.801, subdivision 5, is amended to read:

Subd. 5.

Timelines; administration.

(a) The board shall develop and adopt, by June
30, 2016, a transition plan for development, approval, adoption, and coordination of plans
consistent with section 103A.212. The transition plan must include a goal of completing
statewide transition to comprehensive watershed management plans by 2025. The
metropolitan area may be considered for inclusion in the transition plan. new text begin The board may
amend the transition plan no more often than once every two years.
new text end

(b) The board may use the authority under section 103B.3369, subdivision 9, to support
development or implementation of a comprehensive watershed management plan under this
section.

Sec. 5.

Minnesota Statutes 2016, section 114D.15, is amended by adding a subdivision to
read:

new text begin Subd. 3a. new text end

new text begin Comprehensive local water management plan. new text end

new text begin "Comprehensive local water
management plan" has the meaning given under section 103B.3363, subdivision 3.
new text end

Sec. 6.

Minnesota Statutes 2016, section 114D.15, is amended by adding a subdivision to
read:

new text begin Subd. 3b. new text end

new text begin Comprehensive watershed management plan. new text end

new text begin "Comprehensive watershed
management plan" has the meaning given under section 103B.3363, subdivision 3a.
new text end

Sec. 7.

Minnesota Statutes 2016, section 114D.15, subdivision 7, is amended to read:

Subd. 7.

Restoration.

"Restoration" means actions deleted text begin , including effectiveness monitoring,
that are deleted text end taken to new text begin pursue, new text end achieve new text begin , new text end and maintain water quality standards for impaired waters
deleted text begin in accordance with a TMDL that has been approved by the United States Environmental
Protection Agency under federal TMDL requirements deleted text end .

Sec. 8.

Minnesota Statutes 2016, section 114D.15, subdivision 11, is amended to read:

Subd. 11.

TMDL implementation plan.

"TMDL implementation plan" means new text begin :
new text end

new text begin (1) new text end a document detailing restoration activities needed to meet the approved TMDL's
pollutant load allocations for point and nonpoint sources deleted text begin . deleted text end new text begin ; or
new text end

new text begin (2) one of the following that the commissioner of the Pollution Control Agency
determines to be, in whole or part, sufficient to provide reasonable assurance of progress
toward water quality restoration or protection goals:
new text end

new text begin (i) a comprehensive watershed management plan;
new text end

new text begin (ii) a comprehensive local water management plan; or
new text end

new text begin (iii) an existing statewide or regional strategy published by the Pollution Control Agency.
new text end

Sec. 9.

Minnesota Statutes 2016, section 114D.15, subdivision 13, is amended to read:

Subd. 13.

Watershed restoration and protection strategy or WRAPS.

"Watershed
restoration and protection strategy" or "WRAPS" means a document summarizing scientific
studies of a major watershed deleted text begin no larger than deleted text end new text begin at approximately new text end a hydrologic unit code 8 new text begin scale new text end
including the physical, chemical, and biological assessment of the water quality of the
watershed; identification of impairments and water bodies in need of protection; identification
of biotic stressors and sources of pollution, both point and nonpoint; TMDL's for the
impairments; and deleted text begin an implementation table containing deleted text end new text begin information to support new text end strategies deleted text begin and
actions deleted text end designed to achieve and maintain water quality standards and goals.

Sec. 10.

Minnesota Statutes 2016, section 114D.20, subdivision 2, is amended to read:

Subd. 2.

Goals for implementation.

The following goals must guide the implementation
of this chapter:

(1) to identify impaired waters in accordance with federal TMDL requirements deleted text begin within
ten years after May 23, 2006, deleted text end and deleted text begin thereafter deleted text end to ensure continuing evaluation of surface
waters for impairments;

(2) to submit TMDL's to the United States Environmental Protection Agency deleted text begin for all
impaired waters in a timely manner deleted text end in accordance with federal TMDL requirements;

(3) to deleted text begin set a reasonable time deleted text end new text begin inform and support strategies new text end for implementing restoration
deleted text begin of each identified impaired water deleted text end new text begin and protection new text end ;

(4) new text begin to systematically evaluate waters, new text end to provide assistance and incentives to prevent
waters from becoming impaired new text begin , new text end and to improve the quality of waters that are listed as
impaired deleted text begin but do not have an approved TMDL addressing the impairment deleted text end ;

(5) to promptly seek the delisting of waters from the impaired waters list when those
waters are shown to achieve the designated uses applicable to the waters;

(6) to achieve compliance with federal Clean Water Act requirements in Minnesota;

(7) to support effective measures to prevent the degradation of groundwater according
to the groundwater degradation prevention goal under section 103H.001; and

(8) to support effective measures to restore degraded groundwater.

Sec. 11.

Minnesota Statutes 2016, section 114D.20, subdivision 3, is amended to read:

Subd. 3.

Implementation policies.

The following policies must guide the implementation
of this chapter:

(1) develop regional deleted text begin and deleted text end new text begin , multiple pollutant, or new text end watershed TMDL's deleted text begin and TMDL
implementation plans, and TMDL's and TMDL implementation plans for multiple pollutants deleted text end new text begin
or WRAPSs new text end , where reasonable and feasible;

(2) maximize use of available organizational, technical, and financial resources to perform
sampling, monitoring, and other activities to identify degraded groundwater and impaired
waters, including use of citizen monitoring and citizen monitoring data used by the Pollution
Control Agency in assessing water quality that meets the requirements deleted text begin in Appendix D of
the Volunteer Surface Water Monitoring Guide, Minnesota deleted text end new text begin established by the commissioner
of the new text end Pollution Control Agency deleted text begin (2003) deleted text end ;

(3) maximize opportunities for restoration of degraded groundwater and impaired waters,
by prioritizing and targeting of available programmatic, financial, and technical resources
and by providing additional state resources to complement and leverage available resources;

(4) use existing regulatory authorities to achieve restoration for point and nonpoint
sources of pollution where applicable, and promote the development and use of effective
nonregulatory measures to address pollution sources for which regulations are not applicable;

(5) use restoration methods that have a demonstrated effectiveness in reducing
impairments and provide the greatest long-term positive impact on water quality protection
and improvement and related conservation benefits while incorporating innovative approaches
on a case-by-case basis;

(6) identify for the legislature any innovative approaches that may strengthen or
complement existing programs;

(7) identify and encourage implementation of measures to prevent surface waters from
becoming impaired and to improve the quality of waters that are listed as impaired but have
no approved TMDL addressing the impairment using the best available data and technology,
and establish and report outcome-based performance measures that monitor the progress
and effectiveness of protection and restoration measures;

(8) monitor and enforce cost-sharing contracts and impose monetary damages in an
amount up to 150 percent of the financial assistance received for failure to comply; and

(9) identify and encourage implementation of measures to prevent groundwater from
becoming degraded and measures that restore groundwater resources.

Sec. 12.

Minnesota Statutes 2016, section 114D.20, subdivision 5, is amended to read:

Subd. 5.

Priorities for preparing new text begin WRAPSs AND new text end TMDL's.

new text begin In consultation with new text end the
Clean Water Council deleted text begin shall recommend deleted text end new text begin , the commissioner of the Pollution Control Agency
must coordinate with the commissioners of natural resources, health, and agriculture and
with the Board of Water and Soil Resources to establish new text end priorities for scheduling and
preparing new text begin WRAPSs and new text end TMDL's deleted text begin and TMDL implementation plans, taking into account deleted text end new text begin ,
considering new text end the deleted text begin severity deleted text end new text begin causes new text end of deleted text begin the impairment deleted text end new text begin impairments new text end , the designated uses of deleted text begin those deleted text end new text begin
the new text end waters, and deleted text begin other deleted text end applicable federal TMDL requirements. deleted text begin In recommending priorities,
the council shall also give deleted text end Consideration new text begin must also be given new text end to new text begin protecting groundwater and
high-quality new text end waters and watersheds new text begin , waters and watersheds with declining water quality
trends, and waters and watersheds new text end :

(1) with impairments that pose the greatest potential risk to human health;

(2) with impairments that pose the greatest potential risk to threatened or endangered
species;

(3) with impairments that pose the greatest potential risk to aquatic health;

(4) where other public agencies and participating organizations and individuals, especially
local, deleted text begin basinwide deleted text end new text begin basin-wide new text end , watershed, or regional agencies or organizations, have
demonstrated readiness to assist in carrying out the responsibilities, including availability
and organization of human, technical, and financial resources necessary to undertake the
work; and

(5) where there is demonstrated coordination and cooperation among cities, counties,
watershed districts, and soil and water conservation districts in planning and implementation
of activities that will assist in carrying out the responsibilities.

Sec. 13.

Minnesota Statutes 2016, section 114D.20, subdivision 7, is amended to read:

Subd. 7.

Priorities for funding prevention actions.

The Clean Water Council shall
apply the priorities applicable under subdivision 6, as far as practicable, when recommending
priorities for funding actions to prevent groundwater and surface waters from becoming
degraded or impaired and to improve the quality of surface waters that are listed as impaired
deleted text begin but do not have an approved TMDL deleted text end .

Sec. 14.

Minnesota Statutes 2016, section 114D.20, is amended by adding a subdivision
to read:

new text begin Subd. 8. new text end

new text begin Alternatives; TMDL, TMDL implementation plan, or WRAPS. new text end

new text begin (a) If the
commissioner of the Pollution Control Agency determines that a comprehensive watershed
management plan or comprehensive local water management plan is sufficient and consistent
with guidance from the United States Environmental Protection Agency for category 4b
waters under section 303(d) of the federal Clean Water Act, the commissioner may submit
the plan to the Environmental Protection Agency according to federal TMDL requirements
as an alternative to developing a TMDL.
new text end

new text begin (b) A TMDL implementation plan or a WRAPS, or portions thereof, are not needed for
waters or watersheds when the commissioner of the Pollution Control Agency determines
that:
new text end

new text begin (1) a comprehensive watershed management plan or comprehensive local water
management plan is sufficient to provide reasonable assurance of progress toward water
quality restoration or protection goals; or
new text end

new text begin (2) an existing statewide or regional strategy published by the Pollution Control Agency
is sufficient to provide reasonable assurance of progress toward water quality restoration
or protection goals.
new text end

new text begin (c) The commissioner of the Pollution Control Agency may request that the Board of
Water and Soil Resources conduct an evaluation of the implementation efforts when the
commissioner determines that a comprehensive watershed management plan or
comprehensive local water management plan is sufficient to provide reasonable assurance
of progress toward water quality restoration or protection goals. The board must conduct
the evaluation in accordance with section 103B.102.
new text end

new text begin (d) The commissioner of the Pollution Control Agency may amend or revoke a
determination made under paragraph (a) or (b) after considering the evaluation conducted
under paragraph (c).
new text end

Sec. 15.

Minnesota Statutes 2016, section 114D.20, is amended by adding a subdivision
to read:

new text begin Subd. 9. new text end

new text begin Coordinating of municipal and local water quality activities. new text end

new text begin A project,
practice, or program for water quality improvement or protection that is conducted by a
watershed management organization or a local government unit with a comprehensive
watershed management plan or other water management plan approved according to chapter
103B, 103C, or 103D must be considered as contributing to the requirements of a storm
water pollution prevention plan (SWPPP) for a municipal separate storm sewer systems
(MS4) permit unless the project, practice, or program was previously documented as
contributing to a different SWPPP for an MS4 permit.
new text end

Sec. 16.

Minnesota Statutes 2016, section 114D.26, is amended to read:

114D.26 WATERSHED RESTORATION AND PROTECTION STRATEGIES.

Subdivision 1.

Contents.

new text begin (a) new text end The new text begin commissioner of the new text end Pollution Control Agency deleted text begin shall deleted text end new text begin
must new text end develop watershed restoration and protection strategies deleted text begin . deleted text end new text begin for:
new text end

new text begin (1) quantifying impairments and risks to water quality;
new text end

new text begin (2) describing the causes of impairments and pollution sources;
new text end

new text begin (3) consolidating TMDLs in a major watershed; and
new text end

new text begin (4) informing comprehensive local water management plans and comprehensive
watershed management plans.
new text end

new text begin (b) new text end To ensure effectiveness new text begin , efficiency, new text end and accountability in meeting the goals of this
chapter, new text begin the commissioner of the Pollution Control Agency and the Board of Water and
Soil Resources must coordinate the schedule, budget, scope, and use of a WRAPS and
related documents and processes in consultation with local government units and in
consideration of section 114D.20, subdivision 8. new text end Each WRAPS deleted text begin shall deleted text end new text begin must new text end :

(1) identify impaired waters and waters in need of protection;

(2) identify biotic stressors causing impairments or threats to water quality;

(3) summarize watershed modeling outputs and resulting pollution load allocations deleted text begin , deleted text end new text begin and new text end
wasteload allocations deleted text begin , and priority areas for targeting actions to improve water quality deleted text end new text begin and
identify areas with high pollutant-loading rates new text end ;

(4) identify point sources of pollution for which a national pollutant discharge elimination
system permit is required under section 115.03;

(5) identify nonpoint sources of pollution for which a national pollutant discharge
elimination system permit is not required under section 115.03, with sufficient specificity
to deleted text begin prioritize and deleted text end geographically deleted text begin locate deleted text end new text begin inform new text end watershed restoration and protection deleted text begin actions deleted text end new text begin
strategies new text end ;

(6) describe the current pollution loading and load reduction needed for each source or
source category to meet water quality standards and goals, including wasteload and load
allocations from TMDL's;

(7) deleted text begin contain a plan for ongoing deleted text end new text begin identify new text end water quality monitoring new text begin needed new text end to fill data gaps,
determine changing conditions, deleted text begin and deleted text end new text begin or new text end gauge implementation effectiveness; and

(8) contain deleted text begin an implementation table of deleted text end strategies deleted text begin and actions deleted text end that are capable of
cumulatively achieving needed pollution load reductions for point and nonpoint sources,
including new text begin identifying new text end :

(i) water quality parameters of concern;

(ii) current water quality conditions;

(iii) water quality goals and targets by parameter of concern; new text begin and
new text end

(iv) strategies deleted text begin and actions deleted text end by parameter of concern and the scale of adoptions needed
deleted text begin for each; deleted text end new text begin to provide reasonable assurance of meeting water quality goals.
new text end

deleted text begin (v) a timeline for achievement of water quality targets;
deleted text end

deleted text begin (vi) the governmental units with primary responsibility for implementing each watershed
restoration or protection strategy; and
deleted text end

deleted text begin (vii) a timeline and interim milestones for achievement of watershed restoration or
protection implementation actions within ten years of strategy adoption.
deleted text end

Subd. 2.

Reporting.

deleted text begin Beginning July 1, 2016, and every other year thereafter, deleted text end new text begin The
commissioner of new text end the Pollution Control Agency must new text begin periodically new text end report on deleted text begin its deleted text end new text begin the agency's new text end
Web site the progress toward implementation milestones and water quality goals deleted text begin for all
adopted TMDL's and, where available, WRAPS's deleted text end .

Subd. 3.

Timelines; administration.

deleted text begin Each year, deleted text end new text begin (a) The commissioner of new text end the Pollution
Control Agency must complete deleted text begin WRAPS's for at least ten percent of deleted text end new text begin watershed restoration
and protection strategies for new text end the state's major watersheds deleted text begin . WRAPS shall be deleted text end new text begin by June 30,
2023, unless the commissioner determines that a comprehensive watershed management
plan or comprehensive local water management plan, in whole or part, is sufficient to provide
reasonable assurance of progress toward water quality restoration or protection goals. As
needed, the commissioner must update the strategies, in whole or part, after consultation
with the Board of Water and Soil Resources and local government units.
new text end

new text begin (b) Watershed restoration and protection strategies are new text end governed by the procedures for
approval and notice in section 114D.25, subdivisions 2 and 4, except that deleted text begin WRAPS deleted text end new text begin the
strategies new text end need not be submitted to the United States Environmental Protection Agency.

Sec. 17.

Minnesota Statutes 2016, section 114D.35, subdivision 1, is amended to read:

Subdivision 1.

Public and stakeholder participation.

new text begin (a) new text end Public agencies and private
entities involved in deleted text begin the implementation of deleted text end new text begin implementing new text end this chapter deleted text begin shall deleted text end new text begin must new text end encourage
participation by the public and stakeholders, including local citizens, landowners deleted text begin and deleted text end new text begin , land new text end
managers, and public and private organizations deleted text begin , in identifying impaired waters, in developing
TMDL's, in planning, priority setting, and implementing restoration of impaired waters, in
identifying degraded groundwater, and in protecting and restoring groundwater resources deleted text end .

new text begin (b) new text end In particular, new text begin the commissioner of new text end the Pollution Control Agency deleted text begin shall deleted text end new text begin must new text end make
reasonable efforts to provide timely information to the public and to stakeholders about
impaired waters that have been identified by the agency deleted text begin . The agency shall seek broad and
early public and stakeholder participation in scoping the activities necessary to develop a
TMDL, including the scientific models, methods, and approaches to be used in TMDL
development, and to implement restoration pursuant to section 114D.15, subdivision 7. deleted text end new text begin and
to inform and consult with stakeholders in developing a WRAPS or TMDL.
new text end

new text begin (c) Public agencies and private entities involved in implementing restoration and
protection identified in a comprehensive watershed management plan or comprehensive
local water management plan must make efforts to inform, consult, and involve the public
and stakeholders.
new text end

new text begin (d) The commissioner of the Pollution Control Agency and the Board of Water and Soil
Resources must coordinate public and stakeholder participation in consultation with local
government units.
new text end

Sec. 18.

Minnesota Statutes 2016, section 114D.35, subdivision 3, is amended to read:

Subd. 3.

Education.

The Clean Water Council shall develop strategies for informing,
educating, and encouraging the participation of citizens, stakeholders, and others regarding
deleted text begin the identification of impaired waters, development of TMDL's, development of TMDL
implementation plans, implementation of restoration for impaired waters, identification of
degraded groundwater, and protection and restoration of groundwater resources deleted text end new text begin this chapter new text end .
Public agencies deleted text begin shall be deleted text end new text begin are new text end responsible for implementing the strategies.

Sec. 19.

new text begin [114D.47] NONPOINT FUNDING ALTERNATIVE.
new text end

new text begin Notwithstanding section 114D.50, subdivision 3a, the Board of Water and Soil Resources
may, by board order, establish alternative timelines or content for the priority funding plan
for nonpoint sources under section 114D.50, subdivision 3a, and may use information from
comprehensive watershed management plans or comprehensive local water management
plans to estimate or summarize costs.
new text end