State pollution control agency criticized for list of impaired waters
In spite of years of requests from the state’s 11 Indian tribes, the Minnesota Pollution Control Agency (MPCA) failed to include impaired wild rice waters in its 2020 list of impaired waters, which it is required by the federal Clean Water Act (CWA) to send to the Environmental Protection Agency (EPA).
After the tribes pressed both agencies on the issue, the EPA sent letters last month partially disapproving the MPCA's list because it did not include wild rice waters.
The tribes have been at odds with the MPCA on the issue for years. In an April 2020 letter to MPCA Commissioner Laura Bishop, the tribes said, “Since at least 2005, we have called attention to the MPCA’s failure to implement and enforce the wild rice sulfate standard in water quality permits.“
The letter concluded, “MPCA must enforce the law now... If MPCA excludes these waters from the final version of the list, the undersigned Minnesota tribes will urge the EPA to disapprove and take appropriate steps under CWA regulations, and will consider other legal options to protect Minnesota’s wild rice waters.“
When it came time to submit the list, MPCA did not comply with the tribes’ request. On February 8 of this year, Minnesota Governor Tim Walz informed tribal leaders that MPCA would not include impaired wild rice waters on the 2020 list.
The state’s 11 tribal leaders sent a strongly worded letter to the EPA on March 3. “We are beyond disappointed in this decision. The impaired waters list is a key tool for protecting water quality, one that MPCA holds under the federal Clean Water Act. The state is required to list all known, impaired waters. MPCA has years of data confirming the list of wild rice waters known to be impaired for sulfate, meaning they significantly and persistently exceed the state’s wild rice sulfate standard of 10 mg/L and wild rice growth is impaired.“
Among the reasons Governor Walz gave tribal leaders was a supposed “conflict“ between state and federal law, the letter continued. “We assume this is a reference to a 2015 Minnesota session law that purported to forbid the MPCA from listing impaired wild rice waters until after new rulemaking — a session law that was illegal in the first place, that directed rulemaking that failed upon legal review, and that has by its own terms expired and not been renewed. Moreover, no ’conflict’ is possible as between state and federal law in matters of Clean Water Act interpretation — federal law controls and any contrary state law is void.“
Tera L. Fong, Water Division Director for EPA Region 5, wrote to Assistant MPCA Commissioner Katrina Kessler on March 21, saying, “EPA reviewed Minnesota’s decision not to list water quality limited segments (WQLSs)... EPA disapproves Minnesota’s decision not to identify certain WQLSs for sulfate impairment because the existing and readily available data and information for those WQLSs indicate impairments for the numeric water quality criterion for sulfate. Minnesota’s decision to exclude these waters is inconsistent with CWA Section 303(d) and the implementing regulations.“
Chief’s words have impact
On March 26, the EPA invited the Mille Lacs Band and the other 10 Minnesota bands to an April 9 online consultation regarding EPA’s addition of sulfate-impaired waters to Minnesota’s CWA Section 303(d) List.
Perry Bunting, the Director of Environmental Programs for the Band, participated in the consultation. He said the EPA’s partial disapproval of Minnesota’s impaired waters list, which came as a result of tribal action, was a new precedent. “It also shows how consultation can and should work,“ said Perry.
Perry also noted that other Tribal environmental staff as well as EPA representatives stated that Chief Executive Melanie Benjamin’s statements during the consultation call had a strong impact on the EPA’s decision.
Melanie pointed out that discrimination against wild rice waters is really discrimination against Anishinaabe people, making it an environmental justice issue. “The EPA tribal liaison for Minnesota said Melanie’s statements really made an impression on EPA,“ said Perry. “Tribal staff who were on the call said they wanted to cheer when Melanie made that point.“