State’s new ‘Water Plan’ looks good on paper, critics say it lacks accountability

And what about the ‘Winters Doctrine’?

Members of the public hope and expect that when they take time to attend public hearings to testify on policies that affect their lives, such as protecting clean water, their questions will get answered and their comments will make a difference.

Yet too often it feels like a futile exercise. People get two or three minutes to speak. There’s no give and take. Leaders don’t answer the tough questions speakers pose. The committee chair will simply say, “thank you, next speaker.”

Such was the case at the Sept. 9 meeting of the Minnesota Environmental Quality Board (EQB), where a group of citizens asked really good questions about the 2020 Water Plan and were treated as an annoyance.The EQB consists of nine state agency heads and eight citizen members. It coordinates environmental policies and problems that cross department boundaries. Laura Bishop, commissioner of the Minnesota Pollution Control Agency (MCPA) is the current EQB chair.

EQB Chair Laura Bishop, Commissioner of the MPCA.

The EQB developed the 2020 Water Plan to address the “stubborn and complex water problems that climate change will intensify for Minnesotans.”

For instance, the plan states:

Climate change threatens the waters and ecosystems tribes depend on. Species with aquatic habitats such as wild rice, black ash and walleye are important for health, sustainability and cultural well-being. These species are also highly sensitive to climate change.

According to its website, the EQB provides “opportunities for public access and engagement.” Here’s what “public access and engagement” looked like at the Sept. 9 meeting.

The first three speakers — Charleigh, Kristin Anton, and Mikayla Biggers — all raised concerns that the 2020 Water Plan was silent on the Enbridge Line 3 tar sands pipeline and its environmental impacts. (Video of meeting here.)

Line 3 would trench through 355 miles of northern Minnesota, crossing more than 200 water bodies and 78 miles of wetlands. It will have disproportionate harm to Indigenous peoples. Line 3’s environmental impact statement said the oil in the pipeline would add $287 billion in climate damage over three decades.

“Fun fact, the comprehensive 2020 Water Plan that the EQB is approving today doesn’t mention the Line 3 pipeline a single time,” Biggers said. “As citizens of Minnesota, we think it’s a pretty big deal for our environment.”

Each speaker spoke directly to Bishop, as her agency is currently reviewing a key Line 3 permit. “Laura Bishop, the ball is in your court now,” Anton said. “It is your responsibility to … stand by what you claim to believe in and deny Line 3’s water crossing permits.”

EQB member Margaret Anderson Kelliher, Commissioner of the MN Dept. of Transportation

EQB Board member Margaret Anderson Kelliher, commissioner of the Minnesota Department of Transportation, rebuked the speakers. She found the “personal attacks” towards Commissioner Bishop “not fitting of your good words,” she said, asking speakers to consider more “decorum.”

Perhaps the youthful speakers were too direct for Anderson Kelliher’s taste, but nowhere in their comments did they criticize Bishop personally.

Subsequent speakers felt compelled to address the “personal attack” issue. Gearhardt Robinson reassured the EQB that neither his comments or those by other speakers were meant as personal attacks, or in any way to be violent.

“What we are trying to do is help you make the right decision that will prevent violence against Indigenous people, against land, and against all future generations,” he said.

Speakers criticized the 2020 Water Plan saying it lacked measurable goals and was disconnected from any specific actions.

Another pretty plan, but critics say it has no teeth.

Melissa Burell said: “To pass the 2020 Water Plan with a clear conscience, all members of the board should be taking a stand against Line 3 pipeline out of respect for the indigenous communities you claim to support, and the protection of drinking water.”

Sabine Peterka, a student in St. Paul, said the 2020 Water Plan points out how climate change will bring worse floods, droughts, and heat waves.

“It upsets me that the Plan fails to address fossil fuel infrastructure as a root cause of the issue,” she said.

After nine speakers and roughly 20 minutes testimony, Bishop cut off additional Line 3 comments. “We should stick to the Water Plan and not the individual actions and projects,” she said. Comments on Line 3 “seem to be a bit beyond the Water Plan itself.”

Which is the problem in a nutshell. The EQB apparently doesn’t see a connection between the Water Plan and project-specific decisions state agencies have to make, on such things as permits for Line 3 or large feed lots.

Bishop started to move towards a vote, when Nookomis (Deb Topping), an enrolled member at Fond du Lac, asked to speak. She wanted to know if the EQB had consulted with any of the state’s Native Nations in developing the Water Plan and if anyone on the board was familiar with the Winters Doctrine.

No one knew about the Winters Doctrine.

It refers to the water rights established for reservations in the 1908 U.S. Supreme Court case Winters v. United States. “Under the Winters doctrine, when Congress reserves land (i.e., for an Indian reservation), Congress also reserves water sufficient to fulfill the purpose of the reservation,” according to the Congressional Research Service.

DNR wild rice map. Climate change will harm wild rice.

Nookomis said she depends on clean water and the wild rice, and they should be protected under the Winters Doctrine. If somebody on the board knew about the Doctrine, “you would realize exactly where you stand with my reservation and my water.”

The EQB had no discussion about following up on Nookomis’ Winters Doctrine comment.

Bishop again tried to move to vote on the 2020 Water Plan when Willis Mattison asked to be recognized to file an objection. He was still on the list of people who wanted to testify.

It was clear the EQB hadn’t allocated sufficient time for the public to participate, he said. The process was “a railroad job and disrespectful of public comment.”

Bishop allowed Mattison to testify as long as he didn’t focus on Line 3.

As a former long-time MPCA employee, Mattison said he recalled the great expectations of previous water plans during his time at the agency, and the lofty objectives they planned to achieve. “Unfortunately almost none of them have,” he said.

The current version of the Water Plan failed to put its vision into practice in a way that allowed citizens to hold agencies accountable for their decisions, Mattison said. “Is there a willingness on the part of the EQB to expand this plan to specific measurable outcomes over a specific period of time?”

In a not-so-reassuring answer, Bishop said the Water Plan was a starting point and the EQB would consider adding measurable outcomes.

“May I respond?,” Mattison asked.

“Your three minutes is up,” Bishop said.

The EQB approved the Water Plan on a vote of 11-1.