A federal proposal to streamline water-quality laws would “kneecap” Minnesota regulators and effectively remove their authority to protect drinking water, rivers, streams and wildlife from dozens of new projects each year, state officials have warned in a letter to the U.S. Environmental Protection Agency.
The proposal, issued by the EPA this fall, is part of a broader effort by the Trump administration to roll back the reach of the Clean Water Act and speed up the approval of federal water-quality permits.
The rule change targets Section 401 of the law, which has granted broad authority to states and tribes over the last 48 years to make sure any federally approved project meets local water-quality laws.
Minnesota has used the provision a few dozen times a year, generally on large projects such as oil pipelines or PolyMet Mining’s proposed copper-nickel mine in northeast Minnesota.
The proposed changes are “akin to tearing up Section 401 and throwing it in the trash,” wrote Katrina Kessler, assistant commissioner for water policy and agriculture at the Minnesota Pollution Control Agency (MPCA). The changes will “directly harm state and tribal water quality,” Kessler wrote.
Local authorities have also raised concerns over a strict deadline the new rules would impose. From the date a developer proposes a new project, state regulators would have exactly one year to approve it, deny it or impose conditions. No extensions would be allowed, even if developers leave proposals incomplete or fail to respond to requests for information, leaving Minnesota officials worried that developers could simply run out the clock with delays.
Minnesota’s business community, however, welcomes the changes, according to Tony Kwilas, director of environmental policy for the Minnesota Chamber of Commerce.
Minnesota’s use of Section 401 authority is “often extremely broad, and procedures are inconsistent,” Kwilas said. He pointed to a set of state air-emission conditions for the PolyMet mine, as well as the state’s review of potential effects on water of rail car spillage at the mine. These reviews are unrelated to direct pollution discharges from the site and should not be a condition for certification, he said.
State certification has been “a significant source of uncertainty and delay in the permitting process,” Kwilas said.
Under Section 401, states are allowed to set their own conditions, conduct reviews and ultimately approve or deny projects that have the potential to pollute their waterways. Any conditions imposed by a state become a part of the federal permit and its requirements.
‘Neuters the whole program’
The EPA proposal would give federal authorities the right to dismiss conditions set by a state or tribal water authority and allow the EPA to overrule a state’s project denial. It would also prevent states from studying air emissions or other indirect sources of water pollution, such as runoff, and instead limit local review to direct “point source” discharges.
States would also be prevented from studying potential pollution to seasonal streams, wetlands or any waters other than those that have been designated as “Waters of the United States.”
The EPA says the changes are needed to clarify rules that were left vague by Congress when the Clean Water Act passed in 1972. States have used their 401 authority to impose conditions that have “nothing to do” with water quality, including adding hiking paths or other public access projects, the EPA wrote.
The agency argued that a tight deadline is needed to prevent states and other certifying authorities from stalling projects by seeking more and more information from developers without ever issuing a ruling.
The changes will “increase the predictability and timeliness of section 401 certifications,” the EPA wrote.
But taken as a whole, the rule changes would essentially limit state reviews to match the federal process, said Melissa Kuskie, MPCA environmental review manager.
“It neuters the whole program,” Kuskie said.
The state would be limited to reviewing the same discharges that the EPA reviews, she said. There would be no checks or balances on EPA decisions, since the agency could simply veto any condition or finding of the state.
In the case of PolyMet, for example, Minnesota required the company to monitor and remediate air pollution as a condition of its water permit, because airborne contaminants can work their way into the wetlands surrounding the mine, Kuskie said.
Cleanup after the fact?
“Right now we can look at a project as a whole,” she said. “So if a factory is built in a wetland, and its air emissions are going to deposit into water bodies … we absolutely want to look at air emissions.”
With the prospect of more copper-nickel mines being proposed in Minnesota, state officials regard that comprehensive review authority as crucial.
The Section 401 changes come just as the Trump administration plans to roll back another set of federal protections, enacted under Barack Obama, for many streams, wetlands and smaller water bodies. Under the Clean Water Act, federal permits are required for projects that could potentially pollute “Waters of the United States,” which are generally defined as navigable waterways. What constitutes “navigable” has been the subject of lawsuits for decades.
In 2015, the Obama administration greatly expanded the umbrella of those waters, to the delight of environmental groups but the ire of many farming organizations and landowners, who argued it took away property rights and created unnecessary regulatory hurdles.
As federal protections for smaller waters are removed, however, state regulations need to be able to pick up the slack, said Jared Mott, conservation director of the Isaak Walton League.
“On the one hand, the EPA is telling us that the states need to be able to exercise their own authority to protect clean water,” Mott said. “That’s the argument for limiting federal protections on [Waters of the U.S.]. But now they’re weakening the rule that gives states the ability to do exactly that. It’s frustrating.”
If the rules are changed, Minnesota will still be able to enforce its water-quality standards on companies such as PolyMet, but only after the fact, Kessler said.
“Under the proposed rule, Minnesota would be expected to watch and wait as a regulated facility deposited heavy metals in its waterways,” Kessler said. “EPA’s rule proposal would have the state throw up its hands and watch these waters be filled, excavated, and drained, with enforcement proceedings after-the-fact as its only recourse.”
The public comment period on the proposed rules closed in October. The EPA will decide whether to finalize the changes in coming months.