Our letter on the Senate's controversial environment omnibus bill

Our coalition recently weighed in on the Minnesota Senate's controversial Omnibus Environment Bill. (Photo: Wikimedia Commons)

April 2021, FMR joined our colleagues in the Minnesota Environmental Partnership to send a letter to the Minnesota Senate on its Environment and Natural Resources Finance and Policy Omnibus Bill.

The bill (SF 959) includes some helpful provisions, but also includes cuts to state environmental agencies, a package of policy rollbacks, and a raid on a constitutionally dedicated environmental fund.  

Here’s our letter.

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April 18, 2021

To: Members of the Minnesota Senate

Re: SF 959 – Environment and Natural Resources Finance and Policy Omnibus Bill

Dear Senators,

On behalf of our coalition of more than 70 environmental and conservation organizations and the Minnesota residents we represent, thank you for the hard work and attention to our natural environment and the current and future generations who depend on it.

The recent UN Report Making Peace with Nature outlines how three interwoven crises: the climate crisis, ecosystem destruction and pollution, put our collective future in peril. Already in serious jeopardy is a stable climate for our people and agricultural economy, clean and safe drinking water for people across Minnesota, and the health of pollinator populations that bring us food – to name but a few.

To avoid catastrophic warming, extinction of species that are part of the natural web of life on which we rely, and the collapse of ecosystems that invisibly serve us every day, we must not only stop furthering these environmental harms but work to repair what has already been damaged.

We appreciate the opportunity to share our perspectives on several facets of this bill.

Article I: Environment & Natural Resources Finance

There are many positive budget items in this bill. We are especially pleased to see funding to: 

• increase composting and recycling, including the creation of a mattress recycling program
• reduce greenhouse gas emissions through the Clean Air Minnesota program
• address knowledge gaps regarding mercury levels in the St. Louis River
• address PFAs contamination across our communities.

However, we are concerned about the Senate’s significant operating cuts to the agencies funded through this budget. These cuts are short-sighted during a time when environmental degradation has reached a tipping point and new investments are needed for the health of our people, land, air and water. Our state’s agencies could and should lead our way down a cleaner, more equitable path to a brighter future. We must prioritize ensuring that they have the budgets and authority needed to do so.

Article 2: Environment & Natural Resources Policy

We SUPPORT the following provisions:

• Section 84: Ban on bulk sale of water for export from MN.
• Section 112: Establishing a council to develop a mattress recycling program.
• Section 113: Opening recycling and composting grants to federally recognized tribes.

The following provisions in the current Senate Environment Omnibus bill are detrimental to the short and long-term health of our state and we ask you to oppose them.

We OPPOSE the following provisions:

• Sections 17, 121: Prohibiting Unadopted Rules. These provisions upend current permitting stating that the PCA or DNR may not enforce any unadopted rule and may not incorporate into a permit any “guidance” or interpretation unless it has undergone rulemaking. Relying on rulemaking alone would significantly undermine the protection of people and our natural resources. How? Such a process would operate from the incorrect assumption that all environmentally harmful activities must be explicitly defined by administrative rule before those activities may be guided or regulated by agencies. This assumption and approach would be contrary to the specific duties and responsibilities the legislature assigned to all state agencies under the Environmental Policy Act. Science-based decision-making and guidance relies on peer reviewed literature. Agency permitting decisions must be responsive to new and evolving science. Relying on rulemaking is counter-productive to creating workable permits. These proposed provisions would prevent agencies from producing documents that would help regulated parties understand and comply with complicated statutes and rules. They would also prevent the regulated parties and agencies from being able to enter into agreements that reference documents that outline terms that both parties would have otherwise agreed to include. Flexibility of the agency on what is allowed according to the permit would be restricted.
• Section 82: Calcareous Fens ecosystem protections reduced by burdening DNR with proof standard. Calcareous Fens are one of the rarest and most sensitive ecosystems in Minnesota. They support an unusually large number of rare and threatened plant species including several that live only in calcareous fens. Groundwater is their lifeblood. They are very susceptible to disruptions in their groundwater supply. When the native plants are stressed, aggressive invasive species move in to push them out. Once the invasive species have a foothold, they may not leave even if natural levels are returned. A reduced supply of groundwater will lead to an irreparable loss of many calcareous fens. This provision tells the DNR that if it does not approve or renew a groundwater permit because of its impact on a calcareous fens, the DNR must, at taxpayer cost, demonstrate by a preponderance of the evidence the basis for this conclusion within one year. This is unnecessary and asks the DNR to inappropriately employ a new standard for protecting these sensitive ecosystems.
• Section 85: Prohibits common sense review of transferred water permits. This section prevents DNR from requiring testing or putting new conditions in a water appropriation permit that is being transferred. DNR should be able to review the adequacy of a permit at any time, including when it is transferred, in order to protect groundwater resources. The transfer of a permit should result in administrative review of the terms of the permit, and modification as necessary to prevent depletion of water supplies.
• Section 86: Requiring analysis of the impact on land values of any potential groundwater management plans -- before the plan has been prepared. Section 86 says “Before a management plan for appropriating water is prepared, the commissioner must provide estimates of the impact of any new restriction or policy on land values in the affected area. Strategies to address adverse impacts to land values must be included in the plan.” This inappropriately prioritizes a potential economic impact rather than on the needs of the area for sustainable groundwater. Water management plans should be about the protection of Minnesotans’ water resources. The DNR should not be required to evaluate economic interests before drafting a science-based plan.
• Section 87: Groundwater Management “gag rule”. Section 87 is a gag rule that prevents DNR from providing public information about a water management plan under development by limiting the information that DNR can provide to “direct factual responses.” This provision is in direct conflict with the Data Practices Act, which requires public data to be provided upon request, including drafts, and also requires state staff to explain the meaning of data. Preventing a state agency from open communication with the public about its activities is poor public policy. State policy should be to support greater transparency, not less transparency.
• Section 88: Unsustainable water use allowed without scientific basis. Section 88 defines “sustainable” to mean a change of 20 percent or less with regard to the “August median stream flow” which is apparently unrelated to what is actually sustainable in regard to long-term Minnesota water supplies. This arbitrary figure will prevent real preservation of sustainable water resources, which must be based on actual data from a particular water source and scientific evidence.
• Section 89: Unfairly limits options, compensation for well owners damaged by interference. Section 89 harms those hurt by well interference by compelling the DNR to consider the “condition of the impacted well,” which will encourage the DNR to reduce awards to individuals harmed if their wells are older. This provision may harm people who have lower incomes and cannot easily afford new wells in favor of irrigators who want additional water. Similarly, the legislation favors parties who are interfering with existing wells by limiting the ability to contest the commissioner’s award to parties ordered to pay an affected well owner.
• Sections 92, 94-96, 119: Requiring legislative approval to increase user-fees that fund agency services. User fees are a necessary component of funding state permit programs. The MPCA has not increased most water permit fees for more than two dozen years. These fees cover the cost of reviewing applications, certifying personnel for wastewater treatment and water supply systems, and certifying laboratories. There is no need for an additional layer of approval.
• Section 93: 16-Year Pass for Industry to comply with improved water quality standards. This provision allows a business, that has already constructed or made improvements to a water treatment facility, a 16-year pass for meeting any other water quality standards that may be developed. Water quality standards are developed to protect human health and the viability of our waters for important uses. If new water quality standards are established, polluters should not be granted long term blanket waivers from compliance.
• Sections 97- 111, 117: Creation of new “Advanced Recycling” category in statute which circumvents other waste management laws. The process in play here converts plastic waste into combustible fuel, calling it “advanced recycling.” But this is not recycling. Rather the industry increases the toxic environmental consequences of plastic production. The proposed sections in this bill would establish “advanced recycling facility” in statute with corresponding definitions, then exempt these facilities from other laws related to waste management, including the federal Resource Conservation and Recovery Act, which gives the EPA authority over hazardous waste. These provisions create loopholes through which this emerging industry can avoid measures to protect human health and the environment.
• Section 116: Adding requirements to micromanage agency permitting. There is no evidence that MPCA’s permitting is inefficient now, nor that simply adding more reporting burdens on the agency will change outcomes. According to a 2018 MPCA report, 97% of “priority” permits and 93% of all permits were issued within stated goals.
• Section 118: Elimination of MPCA Authority to Regulate Air Quality Standards for Emissions from Motor Vehicles. By inserting the word “not,” this provision would repeal the statutory authority of the MPCA to set standards for air quality, including the Clean Cars Minnesota rulemaking underway currently, as well as any future state regulations on air pollution from motor vehicles. This authority to regulate contaminants that impact air quality has existed since the MPCA was formed in 1967.
• Section 120: Rollbacks for Factory-Farm Manure Application. This is a harmful practice that threatens clean water, while serving just a handful of large operations and their wealthy investors. Instead of protecting small to mid-sized operators and the rural communities that depend on them, this provision eliminates and limits restrictions for spreading factory-farmed manure. These large operations financially squeeze small and mid-sized farms and leave rural communities to foot the bill to clean up their detrimental impacts on human health, drinking water and our environment.
• Section 124: Limiting citizen petitions for environmental review. Air and water pollution do not respect county boundaries. Projects undertaken in one county can significantly impact downstream or downwind communities across the state. This provision would limit the rights of affected persons to petition for environmental review under Minnesota law.
• Section 158: Regulated parties granted illusory authority not to comply with federal laws. This section would allow existing air pollution sources to elude ambient air quality standards protecting public health. These provisions contravene the federal Clean Water and Clean Air Acts and will only result in regulatory uncertainty.

Article 3: 2021 Environment & Natural Resources Trust Fund Appropriations

Every year a panel of Minnesota scientists, legislators and citizens review hundreds of scientific research and project applications, selecting the dozens they think will be most impactful for our environment to receive Environment and Natural Resources Trust Fund (ENRTF) funding. This ENRTF trust fund is supported with earnings from the Minnesota Lottery.

We are happy to see last year’s ENRTF allocations moving forward. At stake is over $61 million in shovel-ready projects that would provide hundreds of jobs and help protect the environment in communities across our state. We support passage of the package of recommendations tentatively approved by the LCCMR. However, the package included in Article 3 cancels many approved projects, including $3.2 million in projects for pollinators, while substituting unconstitutional provisions allocating $2 million in wastewater grants for small communities.

We are highly supportive of addressing wastewater needs across the state. In fact, last year many members of this coalition joined with cities and engineers as part of the Fix the Pipes alliance that publicly advocated for securing an unprecedented $300 million in state general obligation bonding to support water infrastructure. We support further funding of these projects through bonding.

But it is both unnecessary and unconstitutional to fund wastewater projects from the constitutionally dedicated ENRTF funds. Especially at the cost of pollinator projects vetted and approved by the LCCMR in response to tremendous pollinator losses that continue across Minnesota. We ask that these projects, and other environmental projects tentatively selected by the LCCMR, be restored in this package.

Article 4: 2022 Environment & Natural Resources Trust Fund Appropriations

While we would prefer that the ENRTF Appropriations travel as stand-alone bills, we are hopeful that this package of LCCMR-recommended projects will pass in its entirety and without delay.

Thank you for your consideration of the serious concerns and issues raised in this letter. We appreciate your service to Minnesotans.

Sincerely,

Minnesota Environmental Partnership

CURE (Clean Up the River Environment)
Environment Minnesota
Friends of MN Scientific and Natural Areas
Friends of the Boundary Waters Wilderness
Friends of the Mississippi River
Izaak Walton League -- MN Division
Land Stewardship Project
League of Women Voters Minnesota
Lutheran Advocacy Minnesota
Minnesota Center for Environmental Advocacy
Minnesota Interfaith Power & Light
Minnesota Ornithologists Union
Minnesota Trout Unlimited
Minnesota Well Owners Organization
Northern Waters Alliance of Minnesota
Renewing the Countryside
Sierra Club - North Star Chapter
WaterLegacy
Wilderness in the City