The federal Environmental Protection Agency this week approved dramatic changes in Minnesota’s water quality rules. The Minnesota Pollution Control Agency worked on the revisions for ten years and formally proposed the changes last winter. The federal approval leaves environmental activists reeling and at least one tribal water quality expert “speechless.”
Water Legacy, a nonprofit watchdog that follows environmental issues, sent detailed comments both to the MPCA as it was developing the rules and to the EPA as it was considering approval. The group also arranged a listening session between a dozen of the state’s top environmental leaders and EPA officials. Water Legacy’s advocacy director, Paula Maccabee, says she can’t understand the approval. “I simply believe it is not only dangerous for Minnesota but a violation of the Clean Water Act. And why neither of those facts were salient to the EPA, I can’t fathom,” she says.
Minnesota has a set of rules that apply to industries, wastewater treatment plants, anyone who discharges significant quantities of wastewater into a stream or lake. The rules are designed to protect water quality, and they typically set numeric limits on such things as salts, pH, calcium, magnesium, chloride, and other elements. But the new rules eliminate many of the numeric limits and instead call for a narrative description, which typically describes the general conditions desired in the water body.
The new rules are so dramatically different that within weeks of their posting in the State Register, U.S. Steel applied for a revised permit for its mammoth taconite mine, Minntac. It wants the MPCA not only to cut numeric limits, but even to eliminate monitoring requirements for many pollutants. These chemicals move from Minntac’s overflowing wastewater pond into the Dark River, Timber Creek, Little Sandy Lake, and Admiral Lake, ultimately splashing into Lake Superior.
Maccabee and others were expecting the EPA to disapprove the state’s new approach, which would make the permit application moot. But for now, the rules stand. “Minnesotans count on the state having rules, enforcing them, and the courts backing them up,” says Maccabee. “But in the case of U.S. Steel what we’re learning is you can easily break that chain: just get rid of the numbers. Without the limits, there’s no law, no protection, no enforcement. That’s a pretty dark day for Minnesota.”
The MPCA says it needed to eliminate the numeric standards because they were “not appropriate” for the designated uses and were based on “outdated” science. Industries have a wide range of requirements for intake water: gravel washing and chip manufacturing obviously have different needs. Similarly, the quality of water preferred for irrigation varies according to crop, soil, and other factors. The MPCA says the nation as a whole is moving toward more tailored and site-specific limits as new research shows the complexities of biochemical interactions.
The EPA took two months to review the state’s plan, eventually determining that the state followed all the applicable rules. Using the same language and reasoning as Minnesota used in its explanation of the new approach, the EPA concluded that the new rules would adequately protect the various uses of Minnesota’s lakes and rivers.
Not only environmentalists but tribal governments forcefully critiqued the plan as it was being drafted. In an unprecedented joint statement, 11 tribal governments charged that the new rules “have the potential to significantly impair the health of Minnesota waters. That damage will be all the more severe for the state’s tribal citizens, who rely on wild rice, fish, and other treaty-protected resources for subsistence at rates higher than the rest of the population, and who are already subject to disparate impacts because of widespread water pollution.”
In designing the new rules, the MPCA concentrated its attention on industrial and agricultural uses of water. Failing to find research on safe levels of many pollutants for wildlife, the agency picked cattle as a surrogate for wildlife to set a sulfate standard, for example. The limit of 600 milligrams/liter would protect cows, but would not protect wild rice or aquatic insects, “which [would] also kill the fish that eat those insects in downstream waters,” points out the tribal comment document. “The almost total lack of wildlife-specific data in MPCA’s record precludes any confidence in the agency’s assumption.”
Citizen commenter and biologist Stephanie Digby called on the MPCA to focus on wildlife and ecosystem health. “Standards that are based upon whether cattle can survive cannot, if any science is followed, be applied to the entire food chain. It is the antithesis of any science,” she writes.
Responding to these and other critiques, the EPA replied that Minnesota’s narrative standards will protect aquatic life. And it promises that research will help agencies set future standards. “EPA anticipates that using narrative standards will result in permits with more stringent limitations than those based on now-removed numeric criteria, to the extent that evolving science indicates much more stringent limits would protect aquatic life.”
Both the tribes and environmental groups complain that the rules revisions ignore the long-standing problem of mercury pollution. Sulfate in water helps release mercury in sediments and helps convert it to methylmercury, the neurotoxic form that accumulates in fish and in people who eat the fish. In a recent study, ten percent of newborns living along Minnesota’s north shore of Lake Superior had excess mercury in their blood. Responding to comments, EPA explained that mercury is a separate pollutant and the rules for sulfate should not incorporate concerns about mercury.
Another major change is that the standards apply not at the point of discharge, as currently, but at the point downstream where someone else withdraws water for large-scale irrigation or industrial use. The tribal groups commented vigorously on this idea: “The idea that compliance monitoring would or should occur at an industrial or agricultural intake that may be miles downstream of a discharge that is violating Minnesota water quality standards … does not provide protection of the existing uses of the water between one major industrial or agricultural discharge” and the next one downstream. What about all the miles of river between the two industries?, critics ask.
In addition to many specific concerns about the revisions, the 11 tribes complain that the state and federal agencies have not considered their views. The tribal comments show a holistic, inclusive world view that government agencies have a hard time accommodating. Through the years of work on this project, tribes have regularly provided comments that rarely result in a change. In the end, MPCA says, its “choices, which may differ from Tribal comments, remain based in science and are reasonable. The rule as proposed is a reasonable path to achieving the goal of protecting water quality for industrial and agricultural/wildlife uses.”
The 11 tribal governments respond: “MPCA appears to have confused quantity of contacts with quality. This is not meaningful consultation.” And they urge that in the interests of environmental justice, “No change to any water quality standards should happen without analysis of impacts on treaty resources.”
These rules apply now to all the waters of Minnesota. It is too early to know what will happen next, but given the importance of water to all Minnesotans, thousands of whom wrote to the MPCA to express their concerns about the new rules, action in court seems likely.
Meanwhile, the agency announced Tuesday that it is beginning work on another set of water quality rules revisions.