Federal government requires MPCA to enforce wild rice protections, overriding state laws

The environmental group WaterLegacy and the Fond du Lac and Grand Portage Bands of Lake Superior Chippewa scored a major victory to enforce state water quality rules that protect wild rice.

It’s a huge ruling. It should affect the MPCA’s oversight of existing projects, such as the MinnTac Mine (which has never complied with wild rice water quality standards). It should affect the MPCA’s review of projects in the queue, such as the proposed PolyMet copper-nickel mine.

Wild Rice is particularly sensitive to sulfate and sulfite pollution. In 1973, the Minnesota Pollution Control Agency (MPCA) adopted sulfate water pollution limits to protect wild rice. It’s simply called the “Wild Rice Rule.”

The U.S. Environmental Protection Agency (EPA) approved it under the federal Clean Water Act, bringing it under federal jurisdiction.

For a number of reasons, the MPCA wasn’t enforcing its own Wild Rice Rule.

Water Legacy and others pressured the EPA to take action.

On Feb. 16, the EPA sent a letter to the MPCA, saying the agency had to enforce the Wild Rule.

The backstory

The Fond du Lac, Grand Portage, and other Anishinaabeg Bands see manoomin (wild rice) as their sacred food. (For more on manoomin, see the 18-minute documentary: Food that grows on water.)

The Bands and WaterLegacy pushed for years to get the MPCA to enforce the Wild Rice Rule to protect wild rice from industrial pollution.

In 2010, the EPA told the agency it had to enforce the Wild Rice Rule as required by the Clean Water Act, WaterLegacy said: That enforcement “would require existing taconite mining and proposed sulfide mining facilities to collect and treat their polluted wastewater before discharging it to Minnesota wetlands, streams, and rivers — at the expense of the polluters.”

In 2015 and 2016, corporate polluters and their political allies worked to weaken the MPCA’s authority over water quality. The Minnesota State Legislature passed laws that for all practical purposes prohibited the agency from enforcing the Wild Rice Rule.

Even the number and location of wild rice water bodies is a matter of dispute. Here’s the DNR’s wild rice map. It’s not broadly accepted.

A law prohibited the MPCA from enforcing its Wild Rice Rule until it had reviewed an “updated” its water quality standards.

That “update” was extremely controversial and created long delays. (Minnesota still doesn’t have an updated Wild Rice Rule and there’s not one on the horizon.)

The agency proposed a new Wild Rice Rule, which triggered procedural and legal roadblocks. By outside appearances, the MPCA has given up trying to update the Wild Rice Rule.

The win: The EPA ruled that the state law prohibiting the MPCA from enforcing the Wild Rice Rule impaired the agency’s authority to protect water. That law was an “improper modification” of its agreement with the federal government. Federal Clean Water Act agreements trump state law, so the MPCA has to enforce the rule.

Here’s one possible immediate impact. The MPCA has approved pollution discharge permits to PolyMet’s proposed copper-nickel mine in Northeastern Minnesota. That permit does not require PolyMet “to meet federally-approved water quality standards for sulfate, mercury, or other toxic metals,” WaterLegacy said.

WaterLegacy, the Fond du Lac Band, and other allies have petitioned the Minnesota Supreme Court to review the PolyMet permit.

Action Item: Call MPCA Commissioner Katrina Kessler (651-757-2303) and request the MPCA set and enforce pollution limits in permits to meet the Wild Rice Standard.

The MPCA is supposed to be the state’s leading environmental watchdog. The agency’s mission is: “Working to protect and improve our environment and human health.”

Yet the MPCA has been failing to live up to its mission, either through weak leadership, political interference, or both.

It’s been nearly 50 years since the MPCA issued the Wild Rice Rule and only now, hopefully, will it be enforced.

For more examples of the MPCA weak enforcement of environmental protections, see:

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