Minnesota Pollution Control Agency Continues to Promote Elimination of the Wild Rice Sulfate Standard!
WaterLegacy Opposes State Plan to Eliminate Wild Rice Sulfate Rule Protection and Plan to Limits on “Wild Rice Waters” where Standard should Apply
On December 18, 2015, WaterLegacy submitted detailed comments, expert opinions and exhibits to the Minnesota Pollution Control Agency (MPCA) and the U.S. Environmental Protection Agency (EPA) in response to the MPCA’s proposal to change Minnesota rules.
The MPCA’s plan would do the following:
- Eliminate Minnesota’s existing water quality standard limiting sulfate in wild rice waters to 10 milligrams per liter (mg/L) of sulfate and replace this standard with an equation based on the theory that iron in lake and stream would protect wild rice from toxic sulfide formation.
- Provide a new definition of “wild rice waters” using a minimum threshold based on the number of wild rice stems in a given water and list specific lakes, wetlands, streams and rivers that appear to meet the minimum stem count threshold proposed.
WaterLegacy’s comments, summarized here, oppose this plan:
WaterLegacy objected to the elimination of Minnesota’s wild rice sulfate standard in favor of the MPCA equation because the equation has very poor predictive power and would fail to protect wild rice. The equation also lacks scientific validity since it assumes that iron would have an ameliorative effect on porewater sulfide, when there is no experimental evidence supporting this theory.
WaterLegacy also criticized the MPCA plan for failing to consider other ecological implications of increased sulfate in water bodies, including increased mercury methylation and eutrophication. WaterLegacy argued that the MPCA could not enact and the EPA could not approve the proposed rule under the Clean Water Act, federal regulations and applicable case law.
WaterLegacy emphasized that scientific data confirms that retaining Minnesota’s sulfate standard of 10 mg/L in wild rice waters is needed and reasonable to protect wild rice.
WaterLegacy supported the MPCA’s plant to list “wild rice waters.” However, we objected to the proposed threshold for designation of wild rice waters and the effective de-listing of wild rice waters previously identified by the Minnesota Department of Natural Resources in collaboration with the 1854 Treaty Authority. We argued that placing this limit on wild rice waters would not be consistent with how Minnesota classifies other waters or with the Clean Water Act.
Finally, WaterLegacy argued that the State of Minnesota’s recent wild rice research demonstrated that sulfate limits should apply year-round because sulfate can be converted to toxic sulfide in lake and stream sediments even during cold weather and sulfide can harm wild rice at any point in its life cycle.
- WaterLegacy’s Comments Opposing State Plan to Eliminate Wild Rice Sulfate Rule (December 18, 2015)
- Bill Shipley Opinion – MPCA Wild Rice Proposal – prepared for WaterLegacy
- Joel Roberts Opinion – MPCA Wild Rice Proposal – prepared for WaterLegacy
- David Schimpf Comments – Submitted directly to MPCA on Wild Rice Proposal
- Exhibits (Exhibit 1 MPCA Policy on Sulfate; Exhibit 2 MPCA Wild Rice Summary February 2014; Exhibit 3 MPCA Emails to Withdraw Summary; Exhibit 4 WaterLegacy Charge Questions Comment; Exhibit 5 MPCA Draft for Wild Rice Waters Threshold; Exhibit 6 WaterLegacy Postcards Cover Letter)
WaterLegacy Commentary in Star Tribune (December 2015)
READ WaterLegacy Advocacy Director and Counsel, Paula Maccabee's commentary in the Star Tribune, Counterpoint: Yes, it's time — to uphold, not raise, sulfate limits
"Pollution already has decimated wild rice, degraded some northern Minnesota streams and lakes so they can’t support fish, and harmed Minnesota’s children. It is bad policy and just plain wrong to let the mining industry decide what limits should be placed on sulfate and other pollutants."
Would you like to learn more?
- Read the MPCA's March 24, 2015 summary and complete proposal for rule change.
- Read the MPCA's proposed designation of wild rice waters.
- Read news coverage from when the MPCA’s proposal was first announced, where WaterLegacy explains how MPCA proposal would be open to inaccuracy and mischief.
- Listen to Brief Audiotape of Paula Maccabee emphasizing the need to enforce the existing wild rice sulfate standard:
"The law is clear," she said. "We have a 10-milligrams-per-liter sulfate standard. What's going to happen in rulemaking - hard to predict. But what shouldn't be hard to predict is that what happens now is enforcing our existing rule."
WaterLegacy Advocates to Preserve and Enforce Minnesota’s Wild Rice Sulfate Standard
Paula Maccabee, Advocacy Director/Counsel for WaterLegacy testified at the Minnesota Legislature against proposals to block enforcement of the wild rice standard. WaterLegacy testified that enforcement of Minnesota’s existing wild rice sulfate standard is required by sound science and by the federal Clean Water Act.
View WaterLegacy’s testimony opposing Minnesota legislation to weaken the wild rice standard:
WaterLegacy summarized the grounds for our concerns about the legislative proposal:
First, the scientific evidence gathered as a result of taxpayer-funded research demonstrates clearly that interference with enforcement of the existing Minnesota wild rice sulfate standard would be unreasonable and unscientific. Second, legislation preventing the Minnesota Pollution Control Agency (MPCA) from fulfilling its obligations to control sulfate pollution and list wild rice impaired waters would conflict with the Clean Water Act, which is governing federal law. As the U. S. Environmental Protection Agency (EPA) advised in 2011, failure of our State to comply with the Clean Water Act and enforce the wild rice sulfate standard could result in Minnesota’s loss of state authority to control water pollution.
WaterLegacy also testified at the Minnesota Senate Energy and Environment Committee on March 27, 2015. This testimony also emphasized, "Wild rice researchers and independent scientific experts believe the MPCA's new formula is scientifically indefensible."
Read WaterLegacy's complete testimony and materials provided to Minnesota Senate Committee Members.
Despite testimony by WaterLegacy, Honor the Earth, and citizens across the state, more than 720 emails to Minnesota legislators from constituents in response to WaterLegacy’s Action Alerts and a veto of the Omnibus Environmental bill by Governor Mark Dayton, the final version of overall environmental legislation in 2015 included provisions that block enforcement of the wild rice sulfate standard and block listing of wild rice waters until new rules are written.
This legislation, along with the undue influence of mining special interests in the regulation of mining pollution, prompted WaterLegacy to file a petition with the U.S. Environmental Protection Agency to strip the State of authority to regulate mining pollution under the Clean Water Act.
Outreach and Education to Protect Wild Rice
- Read WaterLegacy's February 2014 Star Tribune Counterpoint: The science is clear: Protect our wild rice, a Star Tribune article by WaterLegacy Advocacy Director and Counsel, Paula Maccabee. "The Earth is not flat, there is no tooth fairy and sulfate limits are required to protect natural stands of wild rice."
- Read WaterLegacy's October 2014 update in the Wedge Community Coop Newsletter on the fight to protect Minnesota's wild rice from mining.
Scientific Analysis of Wild Rice Sulfate Standard
Since 2011, WaterLegacy has actively participated in the Wild Rice Advisory Committee appointed by the Minnesota Pollution Control Agency (MPCA) as a result of Minnesota legislation requiring study of the wild rice sulfate standard. WaterLegacy has advocated for a fair and unbiased research process during the past several years of committee work, providing detailed comments on the MPCA’s preliminary interpretations of the wild rice sulfate standard research and participating in the Peer Review Panel process, where independent scientists reviewed the research and the preliminary conclusions reached by the MPCA.
WaterLegacy believes that the wild rice sulfate standard studies conducted under the MPCA’s auspices with input from the Wild Rice Advisory Committee should be interpreted as follows:
- As suspected by many scientists, sulfate in surface water is not directly toxic to wild rice. When sulfate is converted to sulfide by bacteria in the sediments, that sulfide is toxic to wild rice. Field surveys suggest that sulfide in sediment porewater may reduce wild rice abundance at very low levels, 75 micrograms per liter (ug/L) or less.
- Under experimental conditions with sediments taken from wild rice beds, adding sulfate to surface water affected many aspects of the wild rice growth cycle, including wild rice seedling emergence, seedling survival, seed viability (ability to germinate) and seed weight (which contributes to survival of the next generation of seedlings). Both MPCA and peer review scientists interpret this toxicity to wild rice from sulfate treatments to result from sulfide forming in the sediments.
- Minnesota’s existing 10 milligrams per liter (mg/L) standard is needed to protect wild rice; a less stringent standard is not supported by the research. However, there is some evidence that in order to protect 95 percent of the resource, as is customary with federal guidance on aquatic toxicity, limits on sulfate would need to be more stringent than Minnesota’s existing wild rice sulfate standard.
- There is no support in this research for MPCA’s interpretation (see, for example, the Mesabi Nugget wastewater discharge permit) that Minnesota’s wild rice standard need only be applied on a “seasonal” basis to protect wild rice. Incubation studies found that, even in cold temperatures, after approximately 80 days, the vast majority of sulfate had been converted to sulfide.
- There are important relationships between sulfate in surface water, iron in sediments, phosphorus and the eutrophication cycle which may impact wild rice growth either directly or indirectly. There are also questions about possible effects on wild rice when iron sulfide precipitates on wild rice roots. Although the mining industry has advocated for relaxation of sulfate limits in areas where iron is high, the wild rice sulfate standard studies do not provide sufficient scientific support for “site specific” exceptions to the existing 10 mg/L wild rice sulfate standard.
Final Peer Review Report on the Wild Rice Sulfate Standard Study
The Scientific Peer Review panel on the MPCA’s Preliminary Analysis of the Wild Rice Sulfate Standard Study just released their Final Report in September 2014. It is highly technical, but the scientific peer reviewers concluded that the various studies done “were appropriate” and “their findings potentially support one another regarding the toxicity of sulfide to wild rice.”
Read the September 25, 2014 Final Report of the Peer Review panel.
Additional Background & Analysis
In June 2014, the MPCA prepared its Preliminary Analysis of the Wild Rice Sulfate Standard Study. In presenting this Preliminary Analysis for review by an independent group of scientists, what is called a “Scientific Peer Review,” the MPCA also provided a list of “Charge Questions” for the scientists to answer.
WaterLegacy provided a detailed set of comments on the MPCA’s Preliminary Analysis of the Wild Rice Sulfate Standard Study, a written comment on MPCA’s suggested Charge Questions for the Peer Review Panel and a presentation to the Peer Review Panel, which met on August 13-14, 2014. Read WaterLegacy’s comments here:
Rulemaking - Next Steps
Based on reading all of the research reports and all of the materials prepared by the scientific peer review panel, as well as our years of active participation in the study process, WaterLegacy believes that there is no scientific basis for making Minnesota’s existing 10 mg/L any less stringent and no basis for allowing site-specific standards to weaken the standard. However, changes in Minnesota’s wild rice sulfate standard may be warranted, including the following:
- Place the wild rice sulfate standard in the rule section pertaining to aquatic ecosystems, rather than in its current location among “irrigation” standards.
- Apply the wild rice sulfate standard to “wild rice waters” rather than “waters used for the production of wild rice” to reduce the confusion between natural wild rice and cultivated paddy rice, and define “wild rice waters” broadly to protect all wild rice uses that have existed at any time protected under the federal Clean Water Act.
- Remove any language suggesting that there might be times of the year during when the wild rice standard would not apply.
WaterLegacy also shares Congresswoman Betty McCollum’s conviction that tribal consultation must take place before any changes in the wild rice rule are proposed or approved.
Read Congresswoman McCollum’s February 26, 2015 statement to the Administrator of the U.S. Environmental Protection Agency
"Let me be clear, without full consultation and consent with impacted tribal nations, the EPA should not even consider lowering water quality standards for wild rice. EPA should be promulgating a wild rice water quality rule across the Great Lakes basin."
If there are any rulemaking changes proposed for the wild rice sulfate standard, there will be an opportunity for public as well as expert comment. Please check this website and WaterLegacy’s Facebook page to stay current on the wild rice sulfate standard rulemaking process.
WaterLegacy Victory Protects Wild Rice Sulfate Standard in Court of Appeals
On December 17, 2012, two years after the Minnesota Chamber of Commerce sued to prevent the Minnesota Pollution Control Agency (MPCA) from enforcing the wild rice sulfate standard to protect natural stands of wild rice, the Minnesota Court of Appeals dismissed the Chamber’s claims in their entirety!
WaterLegacy, the only party to intervene in the litigation to protect the wild rice sulfate standard won our appeal!
More details about litigation to preserve the wild rice sulfate standard can be found on this web page.
In May 2012 a district court judge for the State of Minnesota granted summary judgment motions filed by WaterLegacy and by the MPCA to dismiss the Chamber's claims. The Chamber then filed an appeal.
Court of Appeals Victory
WaterLegacy filed a Brief to the Court of Appeals asking the Court of Appeals to affirm the decision of the district court and to dismiss the claims filed by the Chamber on behalf of the mining industry. Oral argument took place on October 10, 2012.
The Court of Appeals dismissed the Chamber's case on the grounds that there was no jurisdiction for the Chamber's claims, which is what WaterLegacy argued in our motion to dismiss prior to our motion for summary judgment. The Court of Appeals ruled that the Chamber had brought no case properly before it to challenge the wild rice rule. The jurisdiction arguments can be summarized as follows: 1) no mining company had made an appropriate individual appeal of the MPCA's application of the rule, so there was no case or controversy; 2) challenges to rules on their face must be lodged with the Court of Appeals not with a district court; and 3) the 2011 legislation served to moot much of the Chamber's arguments. Read the Court of Appeals Decision Affirming Dismissal of the Lawsuit.
WaterLegacy Counsel noted that the Court of Appeals decision was one more victory for the wild rice sulfate standard. (Read Duluth News Tribune – Minnesota Appeals Court Backs Wild Rice Standard). Maccabee explained, “"Little by little, I think we're reclaiming the idea that Minnesota can protect wild rice and other natural resources through regulation, and that's an important thing.” (Read MPR -- Minn. Court Affirms Wild Rice Protection.)
District Court Victory
On May 10, 2012, Ramsey County District Court Judge Margaret M. Marrinan granted motions for summary judgment made by intervenor WaterLegacy and by the Minnesota Pollution Control Agency (MPCA) and upheld Minnesota’s rule protecting natural stands of wild rice from sulfate pollution in excess of 10 milligrams per liter. The district court denied all claims made by the Minnesota Chamber of Commerce in its lawsuit challenging Minnesota’s wild rice sulfate standard in their entirety.
In her decision, Judge Marrinan ruled, “The Wild Rice Rule does not violate due process. It is not unconstitutionally vague, nor is the application of the rule arbitrary and capricious.” The Court noted, “In approving the wild rice standard, the EPA concluded that the standard is consistent with the federal Clean Water Act. Plaintiff’s [Minnesota Chamber of Commerce’s] assertion that the wild rice sulfate standard is in any way inconsistent with the Clean Water Act lacks merit.” Judge Marrinan ruled that the Minnesota Chamber of Commerce Complaint should be dismissed “in its entirety with prejudice and on the merits.” (See Judge Marrinan’s Decision.)
The Chamber appealed the district court’s decision on June 1, 2012. On August 6, 2012, WaterLegacy filed our Appeals Brief asking the Court of Appeals to affirm the district court and uphold the wild rice standard. A quick summary of our argument: The wild rice standard is constitutional; enforcement of the standard is well within the scope of authority of the Minnesota Pollution Control Agency (MPCA) and, in fact, is among the duties of the MPCA under state and federal clean water laws. The wild rice standard was obviously intended to protect natural stands of wild rice as well as cultivated paddy rice, and the Complaint filed by the Minnesota Chamber of Commerce, representing the mining industry, should be dismissed in its entirety and on the merits.