BREAKING NEWS – VICTORY TO PROTECT WILD RICE AND CLEAN WATER

After long years of work in collaboration with Chippewa/Ojibwe Bands, the 1854 Treaty Authority, scientific and medical experts and many dedicated citizens who spoke up to defend water quality, health and tribal rights, we’ve won a significant victory!

The Chief Administrative Law Judge Concurred with Recommendations of the ALJ in the Wild Rice Sulfate Rulemaking:

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

DISAPPROVED restricting the list of wild rice waters to 1300 waters, but allowed that the MPCA could proceed to list the identified waters as long as other waters where wild rice has been an existing use since November 1975 were also included.

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

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.

READ the complete ALJ Report here

Here are some 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).

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.

For the reasons set forth in the following section regarding the equation-based standard, the Administrative Law Judge further concludes that the MPCA has not presented facts adequate to support the reasonableness of the proposed repeal of the 10 mg/L sulfate standard without a replacement standard that is equally or more protective of wild rice waters.  Therefore, the proposed rule repealing the 10 mg/L sulfate standard is defective because it violates Minn. R. 1400.2100.B.

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.  

With one notable exception, the MPCA responded to each of the arguments raised by the commenters with arguments that were supported by peer-reviewed research.  

The exception, for which the MPCA did not offer a convincing response, was raised by several parties, most notably Dr. John Pastor, one of the scientists on whose foundational research the MPCA relied for its conclusions that sulfide, rather than sulfate, is the direct cause of damage to naturally-occurring wild rice. Dr. Pastor’s continuing mesocosm research has indicated that, while increased iron may counter the toxicity of sulfide to wild rice seedlings in the springtime, iron sulfide plaques form and precipitate on the plants’ roots during the flowering and seed production phases of the wild rice life cycle.  These plaques result in fewer and smaller seeds, with reduced nitrogen content, leading to extinction of the wild rice plant within 4 or 5 years at about 300 mg/L of sulfate, and greatly reducing wild rice plant population viability at lower concentrations of sulfate.  Dr. Pastor hypothesizes that this occurs because the increased plaque appears to block uptake by the plant of nitrogen during the critical flowering and seed production portion of its life cycle.

[B]ecause the MPCA failed to make an affirmative presentation of facts that implementation of the equation-based standard, or the alternate standard, would provide “for the attainment and maintenance of the water quality standards of downstream waters,” the new proposed sulfate standards, even if based on science that a rational decision-maker could conclude is protective of wild rice, must be disapproved.

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.

Minnesota Pollution Control Agency (MPCA) Proposed Rule To Eliminate Existing Limit on Sulfates in Wild Rice Waters  & Arbitrarily Restrict Wild Rice Waters Given Protection.

• Despite comments from WaterLegacy, research scientists, tribal experts and thousands of citizens, the MPCA has proposed to change Minnesota rules to eliminate Minnesota’s existing limit on sulfate of 10 parts per million (10 mg/L) and replace the wild rice sulfate rule with an equation that would allow high levels of sulfate pollution where there are also high levels of iron. Read MPCA Proposal HERE. 

• Sulfate “limits” in 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 also arbitrarily restrict the number of wild rice waters, effectively delisting thousands of lakes and stream,  including approximately 1,000 waters identified by the Minnesota Department of Natural Resources 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 provide various loopholes to prevent enforcement of its equation that already fails to protect wild rice from extinction. 

• Hearings on the MPCA’s proposed rule ended on November 2, 2017, the comment period closed on November 22, and the time for rebuttal ended on December 1, 2017.

WaterLegacy Submitted Comments, Expert Opinions, Exhibits, Rebuttal Comments and Citizen Letters and Petitions opposing the MPCA’s proposed changes to the wild rice sulfate standard.

READ WaterLegacy’s November 22, 2017 Comments opposing the MPCA’s proposed rule change. Selected text

“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 Expert Opinions of John Pastor, Ph.D. and Joel Roberts, Ph.D. filed by WaterLegacy opposing the MPCA’s proposed wild rice rule change. Selected opinions of Dr. Pastor:

“[B]ased on my training and experience, it is my opinion that the weight of the scientific evidence supports retaining Minnesota’s existing sulfate standard of 10 mg/L to protect wild rice.”

“Based on current scientific evidence, an equation determining “protective” sulfate levels based on iron in sediments and available carbon is not a defensible strategy to protect wild rice.”

“[S]ulfate concentrations an order of magnitude or more above 10 mg/L, as would be allowed in some water bodies by MPCA’s proposed flexible standard, are likely to result in decline and extinction of wild rice over time.” 

READ WaterLegacy’s December 1, 2017 Rebuttal Comments opposing the MPCA’s proposed rule change. Selected text:

“In many of these waters, the ones where wild rice is most likely to need regulatory protection, MPCA’s equation would also result in a standard exceeding actual sulfate levels by more than an order of magnitude; sulfate levels where wild rice has long been observed to decline. Supporting a standard because sulfate pollution has not yet resulted in the death of every plant in a wild rice population would be inconsistent with the Clean Water Act and brutally unprotective of wild rice.”

WaterLegacy submitted 1,341 pages of Exhibits opposing the MPCA’s proposed rule change, which can be found on the Office of Administrative Hearings website.

 WaterLegacy also submitted a total of 2,406 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.

READ BASIC FACTS ABOUT WILD RICE AND SULFATE POLLUTION

  • Minnesota’s wild rice sulfate limit was enacted in 1973 and approved by the U.S. Environmental Protection Agency in compliance with the Clean Water Act.

  • Lobbying by corporate polluters led by mining interests and political pressure has blocked enforcement of Minnesota’s existing wild rice sulfate standard. The Minnesota Legislature passed a law in 2011 spending $1.5 million to study the wild rice rule and passed laws since then preventing any enforcement of sulfate limits until the rule was changed.  

  • After the scientific studies of wild rice and sulfate were completed, in February 2014, the MPCA concluded: “The [existing] 10 mg/L sulfate standard is needed and reasonable to protect wild rice production from sulfate - driven sulfide toxicity.” The next day, an MPCA meeting with Iron Range legislators “went poorly” and the MPCA withdrew its own findings and support for Minnesota’s existing wild rice sulfate standard. READ the MPCA’s original position in February 2014.

  • Minnesota’s existing limit on sulfate pollution is needed to protect wild rice and prevent disproportionate harm to tribes and low-income families that rely on wild rice for food.

  • In addition to destroying wild rice, sulfate increases mercury methylation and toxic methylmercury contamination of fish. Methylmercury is a potent neurotoxic, harming the developing brains of fetuses, infants and children in Minnesota.

  • Sulfate pollution can also release phosphorus from sediments, leading to eutrophication (algae blooms) in once-clear lakes. 

  • To protect wild rice, reduce mercury contamination of fish and prevent additional eutrophication of lakes, the MPCA should keep and enforce Minnesota’s existing (10 mg/L) wild rice sulfate limit year-round in all wild rice waters.

 

READ MORE HERE

 

READ HERE FOR ADDITIONAL INFORMATION about the science of wild rice and sulfate pollution and about WaterLegacy’s years of advocacy to protect wild rice. 

 

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