Native Nations take EPA to court over new and complicated water quality standards

The Grand Portage and Fond du Lac bands of Lake Superior Chippewa are suing the U.S. Environmental Agency (EPA) in the Minnesota Court of Appeals, trying to overturn EPA’s approval of Minnesota’s new water quality standards.

The Bands say the new system “is likely to result in increased pollution in downstream waters that flow around and through the Bands’ reservations, and waters that are important to the Bands’ treaty-reserved rights to hunt, fish, and gather throughout their ceded territories,” the complaint said.

The Bands are particularly concerned about water pollution from mining.

The Minnesota Pollution Control Agency (MPCA) proposed the new water quality standards and the EPA approved them last fall under the federal Clean Water Act.

Minntac viewed from Mountain Iron

New ‘narrative’ water quality standards add complexity

Under the old system, the MPCA used “numeric” water pollution standards. For instance, if a water sample exceeded the concentration limit for a certain chemical such as sulfate, it was a violation.

The new system adds multiple layers of complexity. To be honest, I’m still trying to understand it.

The MPCA is now using what it calls “narrative” standards. They are supposed to protect water quality based on the water’s “beneficial uses.” The state categorizes waters by seven beneficial uses. They are:

  • Class 1: Domestic consumption
  • Class 2: Aquatic life and recreation
  • Class 3: Industrial consumption
  • Class 4: Agricultural and wildlife
  • Class 5: Aesthetics and navigation
  • Class 6: Other uses
  • Class 7: Limited Resource Value Water (LRVW)

For instance, Class 4A (irrigation) narrative water quality standards are supposed to ensure “water is able to be used for agricultural purposes without harming crops and soils … or livestock and wildlife,” the MPCA said.

MPCA staff use a “narrative translator” to convert such written goals into enforceable numeric pollution limits to protect those specific waters, the agency said.

The MPCA has developed a flowchart for how the translator would work, prompting staff “to sequentially consider all relevant factors.”

Here’s an MPCA flow chart showing how water quality monitoring works for Class 4A waters (irrigation).

MPCA’s Irrigation Narrative Standards flow chart.

Here are some of the calculations MPCA staff will use as part of the process.

Fond du Lac and Grand Portage’s lawsuit calls the translator scheme “unworkable.”

New isn’t always better

The MPCA’s new system also relies on biological monitoring that “can often detect water quality problems that water chemistry analysis misses or underestimates,” it says The agency then applies a “Tiered aquatic life uses” (TALU) framework that uses “a combination of biological, physical, and chemical monitoring” to measure the health of lakes and rivers.

On paper, that sounds great. But there’s no indication that these new processes are more protective of state waters than the old ones. And there’s good reason to believe the new system is less protective.

Exhibit #1 is the fact that industry groups supported the new narrative water quality standards, while Native Nations and environmental groups opposed it, according to a February 2021 MinnPost article.

According to a later MinnPost article:

In late August [2021], just weeks after the posting of the new rules in the State Register, U.S. Steel applied for a revised permit for its mammoth taconite mine, Minntac. The company wants the MPCA not only to cut numeric limits, but also to eliminate monitoring requirements for many pollutants.

MinnPost

Minnesota again failed at ‘meaningful consultation’ with Tribes

Tribal Nations opposed MPCA’s proposed new water quality rules at both the state and federal level to no avail. Their last resort was to take it to court.

On Feb. 24, 2021, 10 of the 11 Tribes located in Minnesota, and the Minnesota Chippewa Tribe, co-signed a letter to Administrative Law Judge Eric Lipman asking him to reject MPCA’s rule changes:

“MPCA has misrepresented consultation with Minnesota tribes … and the tribal issues with these proposed rules. Instead of meaningful consultation to develop scientifically-defensible and Clean Water Act-compliant regulations, MPCA simply informed and updated tribes as the agency progressed down a bad path.

This is about deregulation, not protecting water quality. While we agree that MPCA’s water quality standards should be updated periodically to better support aquatic life, the environment, and human health, these revisions will do just the opposite.

On March 3, 2021, the MPCA wrote a seven-page rebuttal to public comments critical of the rule changes. It devoted nearly three pages to responding to Tribal criticism.

“The MPCA considered tribal comments gained through multiple in-person discussions and written comments submitted by Tribes; particularly those comments directed at managing natural resources,” the agency wrote.

However, it continued, “consideration does not always result in the MPCA agreeing with comments whether those comments are from Tribal Nations or interested persons. The MPCA’s choices, which may differ from Tribal comments, remain based in science and are reasonable.”

Red flag #1: The MPCA is treating the Tribes as just more “interested persons.’” They aren’t. Tribes have a government-to-government relationship with Minnesota; their comments should carry significant and unique weight.

Red Flag #2: The agency argues its decisions “remain based in science and are reasonable.” The MPCA seems to misunderstand the concept of consultation. There can be give and take and compromise that still results in decisions that are based in science and are reasonable.

Is it really consultation if nothing changes from what the agency wanted to do anyway?

Questions, concerns remain

It seems this new system would be more staff intensive, given its added complexity. I asked the MPCA if it would require more staff. The MPCA didn’t answer.

My concerns are: 1) inadequate staffing for this more complicated system will mean less enforcement; and 2) industry lawyers will have a field day challenging the agency’s calculations.

As Grand Portage and Fond du Lac state in their complaint, the MPCA has a track record of not enforcing the old water quality standards, “including the wild rice sulfate standard.”

Given the agency’s track record of lax pollution enforcement, notably at the MinnTac Mine, Grand Portage and Fond du Lac are right to sue for better safeguards of state waters.

Here’s wishing them success.

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