Rulemaking and Administrative Law Judge (ALJ) Ruling: Protecting Wild Rice

Current Developments

In 2011, the U.S. Environmental Protection Agency (EPA) told Minnesota regulators that the State’s wild rice sulfate standard limiting sulfate pollution in wild rice waters to 10 parts per million (ppm or mg/L) must be enforced under the federal Clean Water Act. The Minnesota Legislature then passed a session law designed to provide the basis for a new rule weakening or eliminating the wild rice sulfate standard. This session law allocated money for research and set up an advisory task force overseen by the Minnesota Pollution Control Agency (MPCA).

From 2011 through 2017, the Wild Rice Sulfate Standards Study Advisory Committee met, and WaterLegacy was its most active environmental participant. After initially (in February 2014) finding that the wild rice sulfate standard was “needed and reasonable” based on the science, the MPCA responded to political pressure and came up with a rule proposal for an “equation” that would allow more sulfate pollution if there were high levels of iron (such as those resulting from mining) and proposed an artificial threshold to protect only wild rice waters with an unspecified “density” of wild rice.

Despite opposition by WaterLegacy, tribes and independent scientists, the MPCA proposed in 2017 a rule to repeal Minnesota’s water quality standard and to restrict the wild rice waters to which any sulfate limit applied.

WaterLegacy vigorously advocated against the MPCA’s proposed rule, and a Minnesota Administrative Law Judge (ALJ) and the Chief ALJ disapproved the proposed rule, in a major victory preserving the wild rice sulfate standard. The current status and history of Minnesota’s wild rice rulemaking process is described below. Additional information on scientific basis for preserving Minnesota’s wild rice sulfate standard is provided on the page Science – Effects of Sulfate Pollution.

Victory! Administrative Law Judge Disapproves MPCA’s Proposed Repeal of Wild Rice Sulfate Standard – Agrees with WaterLegacy and Tribes (2018)

In January 2018, news media reported that an Administrative Law Judge with Minnesota’s Office of Administrative Hearings had rejected repeal of Minnesota’s wild rice sulfate water quality standard:

READ Judge invalidates MPCA sulfate proposal, Timberjay, Jan. 14, 2018

“This is a really strong victory for clean water and the rule of law,” said attorney Paula Maccabee of Duluth-based Water Legacy, who had submitted over 1,400 pages of expert testimony and comments in the case, some of which proved critical to the judge’s decision.

Water Legacy’s Maccabee said that’s the best part about the latest decision. “The existing standard is a whole lot more protective of wild rice in the case of mining pollution than what the MPCA would have given to them [the industry],” she said.

While the Legislature could opt to change the standard or eliminate it altogether, such an effort would likely face a strong legal challenge, said Water Legacy’s Maccabee. “If the Legislature decides to get rid of the [existing] standard, we now have a detailed hearing record and an 82-page decision saying that the standard is needed to protect wild rice,” she said. “We’d have a pretty decent record to challenge such an action by the Legislature. What this careful and rigorous opinion says above all is that the law matters.”

READ Judge throws out proposed Minnesota rule to protect wild rice, Star Tribune, Jan. 11, 2018

“It has been a long and difficult road,” said Paula Maccabee, head of Water Legacy, an environmental group that has fought the proposed rule since the beginning. “For the first time in a long time, it feels as if the rule of law matters.”

WaterLegacy Advocacy to Protect Wild Rice

WaterLegacy submitted a total of 2,406 citizen petitions, letters and postcards opposing the MPCA’s proposal to eliminate the 10 mg/L wild rice sulfate standard and arbitrarily restrict wild rice waters.

WaterLegacy also submitted 1400 pages of comments, exhibits, expert opinions and testified opposing the MPCA’s 2017 proposed rule changing Minnesota’s wild rice sulfate rule as unreasonable, arbitrary, inconsistent with science, unprotective of wild rice, and a violation of the Clean Water Act. Main points:

  • Sulfate “limits” proposed by the MPCA for most wild rice waters impacted by mining pollution would be more than 10 times weaker and, for proposed PolyMet tailings basin pollution, more than 100 times less stringent than Minnesota’s existing (10 mg/L) wild rice sulfate standard.
  • The MPCA’s proposed rule would arbitrarily restrict the number of wild rice waters, effectively delisting thousands of lakes and streams known to contain wild rice.
  • Critical wild rice waters downstream of existing and proposed mining pollution would be excluded by MPCA – no sulfate limit would apply to protect wild rice in these waters.
  • The MPCA’s proposed rule would create loopholes to prevent enforcement of its equation that already fails to protect wild rice from extinction.

WaterLegacy’s comments opposing the MPCA rule summarized:

MPCA’s proposal to use a formula to allow elevated sulfate concentrations in the presence of iron would not protect the designated use of waters for wild rice. This proposed rule would violate the Clean Water Act and its implementing regulations, would relieve the obligation of mining industry dischargers to control sulfate pollution, and would impair wild rice.

Elevated sulfate discharge threatens wild rice, increases eutrophication of lakes, impairs aquatic life, increases methylmercury contamination of fish – affecting human health, and disproportionately impacts low-income people and tribal communities. To protect all of these important values and designated uses of waters, it is time for Minnesota regulators not only to enforce Minnesota’s existing wild rice sulfate standard but to determine what other water quality criteria for sulfate and other salts and ions are needed to more broadly protect aquatic life, fish and human health.

READ WaterLegacy’s Comments Opposing the MPCA’s Proposed Rule to repeal Minnesota’s wild rice sulfate standard, Nov. 22, 2017.

READ WaterLegacy’s Rebuttal Comments Opposing the MPCA’s Rule to repeal Minnesota’s wild rice sulfate standard, Dec. 1, 2017.

Exhibits to WaterLegacy comments available on request to info@waterlegacy.org.

Minnesota Administrative Law Judge Decision Protecting Wild Rice

The Minnesota Administrative Law Judge (ALJ) and the Chief ALJ agreed with WaterLegacy and with Minnesota tribes that the MPCA’s proposed rule would fail to protect wild rice and improperly restrict wild rice waters, in violation of the Clean Water Act. Primary Administrative rulings:

DISAPPROVED repeal of Minnesota’s existing wild rice sulfate standard of 10 mg/L.

DISAPPROVED restricting the list of wild rice waters. The MPCA could list 1300 wild rice waters only if other waters where wild rice has been an existing use since November 1975 were also protected.

DISAPPROVED changing the narrative standard that protects wild rice from harm due to changes in human-made conditions, such as flooding.

The ALJ cited concerns about preventing increased mercury methylation as well as further harm to wild rice and recognized the burdens that would be placed on Native American communities if the wild rice sulfate rule were changed.

Important Excerpts from the ALJ’s Report:

The Administrative Law Judge DISAPPROVES the proposed repeal of the 10 mg/L sulfate standard at Minn. R. 7050.0220, subps. 3a, 4a, 5a, 6a and Minn. R. 7050.0224, subp. 2, due to the Agency’s failure to establish the reasonableness of the repeal, and because the repeal conflicts with the requirements 33 U.S.C. § 1313(c), 40 C.F.R. § 131.10(b) (2015) and Minn. R. 7050.0155 (2017).

‘Harvesting Wild Rice’-Glen Jackson Sr. and Jr. ‘The Sacred Harvest’ – – Dale Kakkak

The Administrative Law Judge DISAPPROVES the proposed equation-based sulfate standard at Minn. R. 7050.0224, subp. 5, B (1) because the proposed rule fails to meet the definition of a rule under Minn. Stat. § 14.38 (2016) and Minn. R. 1400.2100.G (2017).  In addition, the proposed equation-based sulfate standard is not rationally related to the Agency’s objective in this proceeding, and is unconstitutionally void for vagueness.

The Administrative Law Judge concludes that the Agency failed to recognize the proposed rule’s burden on the Native American community in its discussion of classes of people who will be burdened by adoption of the proposed rule.

In the face of challenges raised by the public concerning increased mercury methylation, further harm to wild rice, and degradation of waters due to algae blooms as a result of elevated sulfate standards, the MPCA has failed to make an affirmative presentation of facts which demonstrate that, in establishing standards which would allow increased levels of sulfate in wild rice waters, it is protecting the public health or welfare, enhancing the quality of water, and ensuring that the proposed water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters, as required by federal and state law. Therefore, the Administrative Law Judge concludes that the proposed repeal of the 10 mg/L wild rice sulfate standard violates Minn. R. 1400.2100.D, prohibiting a rule that conflicts with other applicable law.

Because the Administrative Law Judge has determined that the proposed repeal of the 10 mg/L sulfate standard is not needed or reasonable, the equation-based standard cannot be implemented as part of this rulemaking.  

WaterLegacy claims that the MPCA proposes to delist designated wild rice waters previously identified in consultation with the MDNR and Minnesota tribes. WaterLegacy contends that this delisting violates the CWA’s prohibition on removing existing uses that have been attained at any time since November 28, 1975.  In addition, according to WaterLegacy, the MPCA’s proposed list fails to protect wild rice waters generally, and particularly fails to protect wild rice waters downstream of existing and proposed WWTPs

The Administrative Law Judge concludes that the MPCA’s proposed list of wild rice waters at Minn. R. 7050.0471, subps. 3 through 9 is defective because it fails to include all waters previously identified by the MDNR and federally recognized Indian tribes as waters where wild rice was an existing use since November 28, 1975.  The MPCA’s approach, in using a “weight-of-evidence” standard to identify waters such as those with “lush stands of wild rice” that would meet its criteria for “the beneficial use as a wild rice water” violates federal law, which prohibits removing an existing use for wildlife unless more stringent criteria are applied. Because Minn. R. 7050.0471 violates federal law, it fails to meet the requirements of Minn. R. 1400.2100.D and is defective.

The MPCA attempted to challenge the ALJ’s decision, but the Chief Administrative Law Judge denied the challenge. The MPCA withdrew its proposed rule to repeal the wild rice sulfate standard on May 7, 2018.

READ the complete Report of the Administrative Law Judge and the Chief ALJ, Jan. 9 and Jan. 11, 2018.

READ the Chief ALJ Order that the MPCA rules disapproved in the ALJ’s January 2018 decision remain disapproved, Apr. 12, 2018.

Background – MPCA Rulemaking Process (2011- 2017)

Blue and green areas on the map have less than 10 mg/L sulfate (within the range of the existing standard); yellow-orange, orange and red are above 30 mg/L, 100 mg/L and 250 mg/L of sulfate

The Minnesota Pollution Control Agency (MPCA) began the wild rice sulfate standard rulemaking process by contracting with independent scientists.

As this process began, MPCA and Department of Natural Resources data showed the relationships between sulfate in surface water and the prevalence of stands of natural wild rice.

In February 2014, after the independent scientists had made their reports, the MPCA drafted Findings and Preliminary Recommendations that proposed preserving Minnesota’s wild rice sulfate standard as needed and reasonable, excerpted below:

Findings and Preliminary Recommendations Regarding the Wild Rice Sulfate Standard

Sulfide is toxic to wild rice. The MPCA Study demonstrated that elevated sulfide concentrations were toxic to wild rice seedlings. Hydroponic experiment data showed deleterious effects of sulfide on seedling plant growth when sulfide exceeded the range of 150 to 300 µg/L.

Sulfide in the sediment is affected by the amount of sulfate in the water column, and the amount of iron in the sediment.

The 10 mg/L sulfate standard is needed and reasonable to protect wild rice production from sulfate-­‐ driven sulfide toxicity. The MPCA will also consider including a sediment sulfide concentration as a component of this water quality standard, in the range of 150 to 300 µg/L sulfide.

The 10 mg/L wild rice sulfate standard should continue to apply to both lakes and streams.

MPCA internal emails reveal that MPCA presented these findings and recommendations to a group of Iron Range legislators prior to their planned release. The day before the Findings were set for release, the Governor’s staff wrote, “This is a big deal and it is blowing up this morning.” MPCA’s Commissioner agreed, “the meeting with range legislators went poorly.” According to MPCA staff, the “plug got pulled.”

After February 2014, the MPCA ceased supporting Minnesota’s existing water quality standard limiting sulfate in wild rice waters to 10 mg/L.

In June 2014, the MPCA first proposed an equation that would allow higher levels of sulfate in waters that had high levels of iron in their sediment. Since 2014, WaterLegacy repeatedly challenged the MPCA’s proposed equation as well the MPCA’s proposal to set acreage and “density” limits on the wild rice waters that would be protected from sulfate pollution.

Selected documents from the preliminary rulemaking process and WaterLegacy’s advocacy for protection of wild rice are available below:

READ additional information about the science and effects of sulfate pollution.

READ WaterLegacy Fact Sheet Protecting Minnesota Clean Water and Wild Rice from Sulfate Pollution.