2007 Minnesota Statutes

CHAPTER 114D. CLEAN WATER LEGACY ACT

114D.05 CITATION.
This chapter may be cited as the "Clean Water Legacy Act."
History: 2006 c 251 s 2

114D.10 LEGISLATIVE PURPOSE AND FINDINGS.
    Subdivision 1. Purpose. The purpose of the Clean Water Legacy Act is to protect, restore,
and preserve the quality of Minnesota's surface waters by providing authority, direction, and
resources to achieve and maintain water quality standards for surface waters as required by
section 303(d) of the federal Clean Water Act, United States Code, title 33, section 1313(d),
and applicable federal regulations.
    Subd. 2. Findings. The legislature finds that:
(1) there is a close link between protecting, restoring, and preserving the quality of
Minnesota's surface waters and the ability to develop the state's economy, enhance its quality of
life, and protect its human and natural resources;
(2) achieving the state's water quality goals will require long-term commitment and
cooperation by all state and local agencies, and other public and private organizations and
individuals, with responsibility and authority for water management, planning, and protection; and
(3) all persons and organizations whose activities affect the quality of waters, including point
and nonpoint sources of pollution, have a responsibility to participate in and support efforts to
achieve the state's water quality goals.
History: 2006 c 251 s 3

114D.15 DEFINITIONS.
    Subdivision 1. Application. The definitions provided in this section apply to the terms
used in this chapter.
    Subd. 2. Citizen monitoring. "Citizen monitoring" means monitoring of surface water
quality by individuals and nongovernmental organizations that is consistent with section 115.06,
subdivision 4, and Pollution Control Agency guidance on monitoring procedures, quality
assurance protocols, and data management.
    Subd. 3. Clean Water Council or council. "Clean Water Council" or "council" means the
Clean Water Council created pursuant to section 114D.30, subdivision 1.
    Subd. 4. Federal TMDL requirements. "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.
    Subd. 5. Impaired water. "Impaired water" means surface water that does not meet
applicable water quality standards.
    Subd. 6. Public agencies. "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.
    Subd. 7. Restoration. "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.
    Subd. 8. Surface waters. "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.
    Subd. 9. Third-party TMDL. "Third-party TMDL" means a TMDL by the Pollution
Control Agency that is developed in whole or in part by a qualified public agency other than the
Pollution Control Agency consistent with the goals, policies, and priorities in section 114D.20.
    Subd. 10. Total maximum daily load or TMDL. "Total maximum daily load" or "TMDL"
means a scientific study that contains 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 restored and maintained. A TMDL also is the sum of the pollutant load
allocations for all sources of the pollutant, including a wasteload allocation for point sources,
a load allocation for nonpoint sources and natural background, an 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.
    Subd. 11. TMDL implementation plan. "TMDL implementation plan" means a document
detailing restoration activities needed to meet the approved TMDL's pollutant load allocations for
point and nonpoint sources.
    Subd. 12. Water quality standards. "Water quality standards" for Minnesota surface waters
are found in Minnesota Rules, chapters 7050 and 7052.
History: 2006 c 251 s 4

114D.20 IMPLEMENTATION; COORDINATION; GOALS; POLICIES; AND
PRIORITIES.
    Subdivision 1. Coordination and cooperation. In implementing this chapter, public
agencies and private entities shall take into consideration the relevant provisions of local and other
applicable water management, conservation, land use, land management, and development plans
and programs. Public agencies with authority for local water management, conservation, land use,
land management, and development plans shall take into consideration the manner in which their
plans affect the implementation of this chapter. Public agencies shall identify opportunities to
participate and assist in the successful implementation of this chapter, including the funding or
technical assistance needs, if any, that may be necessary. In implementing this chapter, public
agencies shall endeavor to engage the cooperation of organizations and individuals whose
activities affect the quality of surface waters, including point and nonpoint sources of pollution,
and who have authority and responsibility for water management, planning, and protection. To the
extent practicable, public agencies shall endeavor to enter into formal and informal agreements
and arrangements with federal agencies and departments to jointly utilize staff and educational,
technical, and financial resources to deliver programs or conduct activities to achieve the intent of
this chapter, including efforts under the federal Clean Water Act and other federal farm and soil
and water conservation programs. Nothing in this chapter affects the application of silvicultural
exemptions under any federal, state, or local law or requires silvicultural practices more stringent
than those recommended in the timber harvesting and forest management guidelines adopted by
the Minnesota Forest Resources Council under section 89A.05.
    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 within
ten years after the effective date of this section and thereafter to ensure continuing evaluation
of surface waters for impairments;
(2) to submit TMDL's to the United States Environmental Protection Agency for all impaired
waters in a timely manner in accordance with federal TMDL requirements;
(3) to set a reasonable time for implementing restoration of each identified impaired water;
(4) to provide assistance and incentives to prevent waters from becoming impaired and to
improve the quality of waters that are listed as impaired but do not have an approved TMDL
addressing the impairment;
(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; and
(6) to achieve compliance with federal Clean Water Act requirements in Minnesota.
    Subd. 3. Implementation policies. The following policies must guide the implementation
of this chapter:
(1) develop regional and watershed TMDL's and TMDL implementation plans, and TMDL's
and TMDL implementation plans for multiple pollutants, where reasonable and feasible;
(2) maximize use of available organizational, technical, and financial resources to perform
sampling, monitoring, and other activities to identify impaired waters, including use of citizen
monitoring and citizen monitoring data used by the Pollution Control Agency in assessing water
quality must meet the requirements in Appendix D of the Volunteer Surface Water Monitoring
Guide, Minnesota Pollution Control Agency (2003);
(3) maximize opportunities for restoration of 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 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; and
(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.
    Subd. 4. Priorities for identifying impaired waters. The Pollution Control Agency, in
accordance with federal TMDL requirements, shall set priorities for identifying impaired waters,
giving consideration to:
(1) waters where impairments would pose the greatest potential risk to human or aquatic
health; and
(2) waters where data developed through public agency or citizen monitoring or other means,
provides scientific evidence that an impaired condition exists.
    Subd. 5. Priorities for preparation of TMDL's. The Clean Water Council shall recommend
priorities for scheduling and preparing TMDL's and TMDL implementation plans, taking into
account the severity of the impairment, the designated uses of those waters, and other applicable
federal TMDL requirements. In recommending priorities, the council shall also give consideration
to waters and watersheds:
(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, basinwide, 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.
    Subd. 6. Priorities for restoration of impaired waters. In implementing restoration of
impaired waters, in addition to the priority considerations in subdivision 5, the Clean Water
Council shall give priority in its recommendations for restoration funding from the clean water
legacy account to restoration projects that:
(1) coordinate with and utilize existing local authorities and infrastructure for
implementation;
(2) can be implemented in whole or in part by providing support for existing or ongoing
restoration efforts;
(3) most effectively leverage other sources of restoration funding, including federal, state,
local, and private sources of funds;
(4) show a high potential for early restoration and delisting based upon scientific data
developed through public agency or citizen monitoring or other means; and
(5) show a high potential for long-term water quality and related conservation benefits.
    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 waters from becoming impaired and to improve the quality of
waters that are listed as impaired but do not have an approved TMDL.
History: 2006 c 251 s 5

114D.25 ADMINISTRATION; POLLUTION CONTROL AGENCY.
    Subdivision 1. General duties and authorities. (a) The Pollution Control Agency, in
accordance with federal TMDL requirements, shall:
(1) identify impaired waters and propose a list of the waters for review and approval by the
United States Environmental Protection Agency;
(2) develop and approve TMDL's for listed impaired waters and submit the approved
TMDL's to the United State Environmental Protection Agency for final approval; and
(3) propose to delist waters from the Environmental Protection Agency impaired waters list.
(b) A TMDL must include a statement of the facts and scientific data supporting the TMDL
and a list of potential implementation options, including:
    (1) a range of estimates of the cost of implementation of the TMDL; and
    (2) for point sources, the individual wasteload data and the estimated cost of compliance
addressed by the TMDL.
(c) The implementation information need not be sent to the United States Environmental
Protection Agency for review and approval.
    Subd. 2. Administrative procedures for TMDL approval. 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. 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, including section 14.386.
    Subd. 3. TMDL submittal requirement. 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.
    Subd. 4. TMDL notice; contents. 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:
(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;
(2) that each comment should identify the portion of the proposed TMDL addressed, the
reason for the comment, and any change proposed;
(3) of the manner in which persons must request a contested case proceeding on the proposed
TMDL;
(4) that the proposed TMDL may be modified if the modifications are supported by the data
and facts; and
(5) the date on which the 30-day comment period ends.
    Subd. 5. Third-party TMDL development. The Pollution Control Agency may enter into
agreements with any qualified public agency setting forth the terms and conditions under which
that agency 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, cost, 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. The Pollution Control Agency shall only consider authorizing the development of
third-party TMDL's consistent with the goals, policies, and priorities determined under section
114D.20.
History: 2006 c 251 s 6

114D.30 CLEAN WATER COUNCIL.
    Subdivision 1. Creation; duties. A Clean Water Council is created to advise on the
administration and implementation of this chapter, and foster coordination and cooperation as
described in section 114D.20, subdivision 1. The council may also advise on the development of
appropriate processes for expert scientific review as described in section 114D.35, subdivision
2. The Pollution Control Agency shall provide administrative support for the council with the
support of other member agencies. The members of the council shall elect a chair from the
nonagency members of the council.
    Subd. 2. Membership; appointment. The commissioners of natural resources, agriculture,
and the Pollution Control Agency, and the executive director of the Board of Water and Soil
Resources shall appoint one person from their respective agency to serve as a member of the
council. Agency members serve as nonvoting members of the council. Nineteen additional
nonagency members of the council shall be appointed by the governor as follows:
(1) two members representing statewide farm organizations;
(2) two members representing business organizations;
(3) two members representing environmental organizations;
(4) one member representing soil and water conservation districts;
(5) one member representing watershed districts;
(6) one member representing nonprofit organizations focused on improvement of Minnesota
lakes or streams;
(7) two members representing organizations of county governments, one member
representing the interests of rural counties and one member representing the interests of counties
in the seven-county metropolitan area;
(8) two members representing organizations of city governments;
(9) one member representing the Metropolitan Council established under section 473.123;
(10) one township officer;
(11) one member representing the interests of tribal governments;
(12) one member representing statewide hunting organizations;
(13) one member representing the University of Minnesota or a Minnesota state university;
and
(14) one member representing statewide fishing organizations.
Members appointed under clauses (1) to (14) must not be registered lobbyists. In making
appointments, the governor must attempt to provide for geographic balance. The members of the
council appointed by the governor are subject to the advice and consent of the senate.
    Subd. 3. Conflict of interest. A Clean Water Council member may not participate in or vote
on a decision of the council relating to an organization in which the member has either a direct
or indirect personal financial interest. While serving on the Clean Water Council, a member
shall avoid any potential conflict of interest.
    Subd. 4. Terms; compensation; removal. The initial terms of members representing state
agencies and the Metropolitan Council expire on the first Monday in January 2007. Thereafter,
the terms of members representing the state agencies and the Metropolitan Council are four
years and are coterminous with the governor. The terms of other members of the council shall
be as provided in section 15.059, subdivision 2. Members may serve until their successors are
appointed and qualify. Compensation and removal of council members is as provided in section
15.059, subdivisions 3 and 4. A vacancy on the council may be filled by the appointing authority
provided in subdivision 1 for the remainder of the unexpired term.
    Subd. 5. Implementation plan. The Clean Water Council shall recommend a plan for
implementation of this chapter. The recommended plan shall address general procedures and
time frames for implementing this chapter, and shall include a more specific implementation
work plan for the next fiscal biennium and a framework for setting priorities to address impaired
waters consistent with section 114D.20, subdivisions 2 to 7. The council shall issue the first
recommended plan under this subdivision by December 1, 2005, and shall issue a revised plan by
December 1 of each even-numbered year thereafter.
    Subd. 6. Recommendations on appropriation of funds. The Clean Water Council shall
recommend to the governor the manner in which money from the clean water legacy account
should be appropriated for the purposes identified in section 114D.45, subdivision 3. The council's
recommendations must be consistent with the purposes, policies, goals, and priorities in sections
114D.05 to 114D.35, and shall allocate adequate support and resources to identify impaired waters,
develop TMDL's, implement restoration of impaired waters, and provide assistance and incentives
to prevent waters from becoming impaired and improve the quality of waters which are listed as
impaired but have no approved TMDL. The council must recommend methods of ensuring that
awards of grants, loans, or other funds from the clean water legacy account specify the outcomes
to be achieved as a result of the funding and specify standards to hold the recipient accountable
for achieving the desired outcomes. Expenditures from the account must be appropriated by law.
    Subd. 7. Biennial report to legislature. By December 1 of each even-numbered year, the
council shall submit a report to the legislature on the activities for which money has been or will
be spent for the current biennium, the activities for which money is recommended to be spent
in the next biennium, and the impact on economic development of the implementation of the
impaired waters program. The report due on December 1, 2014, must include an evaluation of the
progress made through June 30, 2014, in implementing this chapter, the need for funding of future
implementation of those sections, and recommendations for the sources of funding.
History: 2006 c 251 s 7; 2006 c 282 art 10 s 7

114D.35 PUBLIC AND STAKEHOLDER PARTICIPATION; SCIENTIFIC REVIEW;
EDUCATION.
    Subdivision 1. Public and stakeholder participation. Public agencies and private entities
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,
priority setting, 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 pursuant to section 114D.15, subdivision 7.
    Subd. 2. Expert scientific advice. The Clean Water Council and public agencies and
private entities shall make use of available public and private 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.
    Subd. 3. Education. The Clean Water Council 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, development of TMDL
implementation plans, and implementation of restoration for impaired waters. Public agencies
shall be responsible for implementing the strategies.
History: 2006 c 251 s 8

114D.45 CLEAN WATER LEGACY ACCOUNT.
    Subdivision 1. Creation. The clean water legacy account is created as an account in the
environmental fund. Money in the account must be made available for the implementation of this
chapter and sections 446A.073, 446A.074, and 446A.075, without supplanting or taking the place
of any other funds which are currently available or may become available from any other source,
whether federal, state, local, or private, for implementation of those sections.
    Subd. 2. Sources of revenue. The following revenues must be deposited in the clean water
legacy account:
    (1) money transferred to the account; and
    (2) interest accrued on the account.
    Subd. 3. Purposes. Subject to appropriation by the legislature, the clean water legacy
account may be spent for the following purposes:
    (1) to provide grants, loans, and technical assistance to public agencies and others who are
participating in the process of identifying impaired waters, developing TMDL's, implementing
restoration plans for impaired waters, and monitoring the effectiveness of restoration;
    (2) to support measures to prevent waters from becoming impaired and to improve the
quality of waters that are listed as impaired but do not have an approved TMDL addressing
the impairment;
    (3) to provide grants and loans for wastewater and storm water treatment projects through
the Public Facilities Authority;
    (4) to support the efforts of public agencies associated with individual sewage treatment
systems and financial assistance for upgrading and replacing the systems; and
    (5) to provide funds to state agencies to carry out their responsibilities under this chapter.
History: 2006 c 251 s 9