SF 2448

as introduced - 84th Legislature (2005 - 2006) Posted on 12/15/2009 12:00am

A bill for an act
relating to the environment; providing for total maximum daily load
development; appropriating money; amending Minnesota Statutes 2004, section
116P.11; proposing coding for new law as Minnesota Statutes, chapter 114D.

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

Section 1.

new text begin [114D.01] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Application. new text end

new text begin The definitions provided in this section apply to the
terms used in this chapter.
new text end

new text begin Subd. 2. new text end

new text begin Federal TMDL requirements. new text end

new text begin "Federal TMDL requirements" means the
requirements of section 303(d) of the Clean Water Act, United States Code, title 33,
section 1313(d), and associated regulations and guidance.
new text end

new text begin Subd. 3. new text end

new text begin Impaired water. new text end

new text begin "Impaired water" means surface water that does not
meet applicable water quality standards.
new text end

new text begin Subd. 4. new text end

new text begin Public agencies. new text end

new text begin "Public agencies" means all state agencies, political
subdivisions, joint powers organizations, and special purpose units of government with
authority, responsibility, or expertise in protecting, restoring, or preserving the quality of
surface waters, managing or planning for surface waters and related lands, or financing
waters-related projects. Public agencies includes the University of Minnesota and other
public education institutions.
new text end

new text begin Subd. 5. new text end

new text begin Restoration. new text end

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

new text begin Subd. 6. new text end

new text begin Surface waters. new text end

new text begin "Surface waters" means waters of the state as defined
in section 115.01, subdivision 22, excluding groundwater as defined in section 115.01,
subdivision 6.
new text end

new text begin Subd. 7. new text end

new text begin Third-party TMDL. new text end

new text begin "Third-party TMDL" means a TMDL that is
developed by a qualified public agency other than the Pollution Control Agency.
new text end

new text begin Subd. 8. new text end

new text begin Total maximum daily load or TMDL. new text end

new text begin "Total maximum daily load"
or "TMDL" means a calculation of the maximum amount of a pollutant that may be
introduced into a surface water and still ensure that applicable water quality standards
for that water are achieved and maintained. A TMDL is the sum of the pollutant load
allocations for all sources of the pollutant, including a load allocation for point sources, a
load allocation for nonpoint sources and natural background, a load allocation for future
growth of point and nonpoint sources, and a margin of safety to account for uncertainty
about the relationship between pollutant loads and the quality of the receiving surface
water. "Natural background" means characteristics of the water body resulting from the
multiplicity of factors in nature, including climate and ecosystem dynamics, that affect
the physical, chemical, or biological conditions in a water body, but does not include
measurable and distinguishable pollution that is attributable to human activity or influence.
A TMDL must take into account seasonal variations.
new text end

new text begin Subd. 9. new text end

new text begin Water quality standards. new text end

new text begin "Water quality standards" for Minnesota surface
waters are found in Minnesota Rules, chapters 7050 and 7052.
new text end

Sec. 2.

new text begin [114D.02] ADMINISTRATION; POLLUTION CONTROL AGENCY.
new text end

new text begin Subdivision 1. new text end

new text begin General duties and authorities. new text end

new text begin (a) The Pollution Control Agency,
in accordance with federal TMDL requirements, shall:
new text end

new text begin (1) identify impaired waters and propose a list of the waters for review and approval
by the United States Environmental Protection Agency;
new text end

new text begin (2) develop and approve TMDL's for listed impaired waters and submit the approved
TMDL's to the United States Environmental Protection Agency for final approval; and
new text end

new text begin (3) propose to delist waters from the Environmental Protection Agency impaired
waters list.
new text end

new text begin Impaired waters shall be identified using a case-by-case analysis. The Pollution
Control Agency shall not use strict numeric nutrient standards to determine nutrient
impairment of lakes and reservoirs. Nutrient impairments shall be determined on a
case-by-case basis.
new text end

new text begin (b) A TMDL must include:
new text end

new text begin (1) a statement of facts and scientific data supporting the TMDL;
new text end

new text begin (2) an implementation plan for the TMDL that includes individual wasteload
allocations for all point sources subject to the TMDL;
new text end

new text begin (3) the likely cost of implementation of the TMDL; and
new text end

new text begin (4) a description of any less costly alternatives to implement the TMDL and an
explanation of why those alternatives were rejected.
new text end

new text begin (c) The implementation information need not be sent to the United States
Environmental Protection Agency for review and approval.
new text end

new text begin (d) Prior to completion of a TMDL for an impaired water, the Pollution Control
Agency may issue a permit for a new or expanded wastewater treatment facility that
would result in increased loading to an impaired water, if the increased loading is offset by
reductions from other sources of loading to the impaired water.
new text end

new text begin (e) The Pollution Control Agency shall not impose nutrient reductions on wastewater
treatment facilities, unless the agency demonstrates the need for the reductions based on:
new text end

new text begin (1) a completed TMDL for an impaired water; or
new text end

new text begin (2) a specific demonstration of need for a water that has not been listed as impaired.
new text end

new text begin Subd. 2. new text end

new text begin Administrative procedures for TMDL approval. new text end

new text begin The approval of a
TMDL by the Pollution Control Agency is a final decision of the agency for purposes of
section 115.05 and is subject to the contested case procedures of sections 14.57 to 14.62 in
accordance with agency procedural rules. If 25 or more persons affected by the proposed
TMDL submit a written request for a contested case proceeding within the 30-day
comment period, a contested case for the TMDL must be commenced. The agency shall
not submit an approved TMDL to the United States Environmental Protection Agency
until the time for commencing judicial review has run or the judicial review process has
been completed. A TMDL is not subject to the rulemaking requirements of chapter 14
and section 14.386 does not apply.
new text end

new text begin Subd. 3. new text end

new text begin TMDL submittal requirement. new text end

new text begin Before submitting a TMDL to the United
States Environmental Protection Agency, the Pollution Control Agency shall comply with
the notice and procedure requirements of this section. If a contested case proceeding is not
required for a proposed TMDL, the agency may submit the TMDL to the United States
Environmental Protection Agency no earlier than 30 days after the notice required in
subdivision 4. If a contested case proceeding is required for a TMDL, the TMDL may be
submitted to the United States Environmental Protection Agency after the contested case
proceeding and appeal process is completed.
new text end

new text begin Subd. 4. new text end

new text begin TMDL notice; contents. new text end

new text begin The Pollution Control Agency shall give notice
of its intention to submit a TMDL to the United States Environmental Protection Agency.
The notice must be given by publication in the State Register and by United States mail to
persons who have registered their names with the agency. The notice must include either a
copy of the proposed TMDL or an easily readable and understandable description of its
nature and effect and an announcement of how free access to the proposed TMDL can
be obtained. In addition, the agency shall make reasonable efforts to notify persons or
classes of persons who may be significantly affected by the TMDL by giving notice of
its intention in newsletters, newspapers, or other publications, or through other means of
communication. The notice must include a statement informing the public:
new text end

new text begin (1) that the public has 30 days in which to submit comment in support of or in
opposition to the proposed TMDL and that comment is encouraged;
new text end

new text begin (2) that each comment should identify the portion of the proposed TMDL addressed,
the reason for the comment, and any change proposed;
new text end

new text begin (3) of the manner in which persons must request a contested case proceeding on
the proposed TMDL;
new text end

new text begin (4) that the proposed TMDL may be modified if the modifications are supported by
the data and views submitted; and
new text end

new text begin (5) the date on which the 30-day comment period ends.
new text end

new text begin Subd. 5. new text end

new text begin Third-party TMDL development. new text end

new text begin The Pollution Control Agency may
enter agreements with any qualified public agency setting forth the terms and conditions
under which that entity is authorized to develop a third-party TMDL. In determining
whether the public agency is qualified to develop a third-party TMDL, the Pollution
Control Agency shall consider the technical and administrative qualifications of the public
agency and shall avoid any potential organizational conflict of interest, as defined in
section 16C.02, subdivision 10a, of the public agency with respect to the development of
the third-party TMDL. A third-party TMDL is subject to modification and approval by the
Pollution Control Agency and must be approved by the Pollution Control Agency before it
is submitted to the United States Environmental Protection Agency.
new text end

Sec. 3.

new text begin [114D.03] PUBLIC AND STAKEHOLDER PARTICIPATION;
SCIENTIFIC REVIEW; EDUCATION.
new text end

new text begin Subdivision 1. new text end

new text begin Public and stakeholder participation. new text end

new text begin Public agencies involved
in the implementation of this chapter shall encourage participation by the public and
stakeholders, including local citizens, landowners and managers, and public and private
organizations, in the identification of impaired waters, in developing TMDL's, and in
planning and implementing restoration of impaired waters. In particular, the Pollution
Control Agency shall make reasonable efforts to provide timely information to the public
and to stakeholders about impaired waters that have been identified by the agency. 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.
new text end

new text begin Subd. 2. new text end

new text begin Expert scientific advice. new text end

new text begin Public agencies shall make use of available
expertise from educational, research, and technical organizations, including the University
of Minnesota and other higher education institutions, to provide appropriate independent
expert advice on models, methods, and approaches used in identifying impaired waters,
developing TMDL's, and implementing prevention and restoration.
new text end

new text begin Subd. 3. new text end

new text begin Education. new text end

new text begin The Pollution Control Agency shall develop strategies for
informing, educating, and encouraging the participation of citizens, stakeholders, and
others regarding the identification of impaired waters, development of TMDL's, and
development and implementation of restoration for impaired waters. Public agencies are
responsible for implementing the strategies.
new text end

Sec. 4.

Minnesota Statutes 2004, section 116P.11, is amended to read:

116P.11 AVAILABILITY OF FUNDS FOR DISBURSEMENT new text begin ;
APPROPRIATION new text end .

(a) The amount deleted text begin biennially deleted text end new text begin annually new text end available from the trust fund for the budget
plan developed by the commission is as defined in the Minnesota Constitution, article
XI, section 14.

(b) Any appropriated funds not encumbered in the biennium in which they are
appropriated cancel and must be credited to the principal of the trust fund.

new text begin (c) Of the amount available under paragraph (a), $4,000,000 is annually appropriated
to the commissioner of the Pollution Control Agency to accelerate the development of
total maximum daily loads on impaired waters in the state.
new text end

Sec. 5. new text begin APPROPRIATION.
new text end

new text begin $1,750,000 in fiscal year 2006 and $2,250,000 in fiscal year 2007 are appropriated
from the environment and natural resources trust fund to the commissioner of the Pollution
Control Agency to accelerate the development of total maximum daily loads on impaired
waters in the state.
new text end