Lawmakers want final say on water quality rules

Environmental groups are alarmed about an effort at the Minnesota Legislature to put the brakes on new rules designed to keep the state's lakes and rivers clean.

Unlike past attempts to give the Legislature more power over water protection, the latest effort involves a broad coalition: Democrats from the Iron Range and greater Minnesota and Republicans from both rural and metro areas. Their constituents include mining operations and cities that treat and release wastewater.

"The reason we're concerned now is these are not partisan issues," said Steve Morse, executive director of the Minnesota Environmental Partnership. "There's this general push from the rural areas saying, 'we don't want to protect our water the way the science says we should.'"

That coalition, including the Minnesota League of Cities and the Coalition of Greater Minnesota Cities, wants the Legislature — not the Minnesota Pollution Control Agency and its Citizens Board — to have the ultimate say over whether a new water quality standard takes effect.

The bills proposed at the Capitol would require an analysis of the costs and benefits of any new water quality rule. If meeting the rule would cost a city or business more than $5 million, legislative approval would be required. If implementing the rule is found to be expensive or merely controversial, an independent peer review panel would be called to evaluate the science.

"Everybody wants clean air, clean water and clean land. There's no doubt about that. But let's make sure what we're doing is based on good science," said Rep. Dan Fabian, R-Roseau, who is sponsoring the legislation with Sen. Kent Eken, DFL-Twin Valley.

But peer-reviewed science is exactly what the MPCA already uses to come up with the standards in the first place, MPCA Assistant Commissioner Rebecca Flood said.

"So when these bills come out and talk about using peer-reviewed science, it is a little confusing to us, because we do," she said.

Flood added that the agency's own water quality scientists gather research that has been published in scientific journals and evaluate which studies are applicable to Minnesota.

In addition, Flood said, new water quality proposals already receive a lot of scrutiny.

"There's an extensive process of inviting preliminary comment, doing a second round of inviting comment — here's where we're going, here's what we're thinking about, here's a draft," she said.

The process can take years and often involves hearings before an administrative law judge. Then the Citizens Board — a group appointed by the governor — must give its approval.

Even after all that, groups can still try to fight water quality rules in court or get the Legislature to block them. That's what's happening now with new phosphorus standards aimed at preventing excessive algae growth in rivers and streams.

Proponents of the Fabian-Eken bills argue the process is flawed and could cost cities and businesses millions of dollars to comply. The effort started with the phosphorus rules, but the legislation is broad enough that it also could quell worries from other industries, such as mining, and apply to a range of pollutants that threaten water.

In the case of phosphorus, which can be traced to everything from agricultural practices to stormwater runoff to wastewater discharge, a coalition of cities already sued over the rules.

"This is something that is absolutely paramount to our residents, to our businesses," said Michael Redlinger, city manager in Moorhead, which is part of the coalition.

City officials estimate it will cost Moorhead at least $10 million in facility upgrades to comply. Moorhead treats its wastewater and releases it into the Red River, which flows north to Lake Winnipeg. Even if the city releases less phosphorus, Redlinger doubts it will make much difference because North Dakota cities aren't held to the same high standard.

"All we're asking for is a bit of time to understand fully what we're doing before jumping into millions and millions of dollars of cost for a question mark on benefit," he said.

MPCA officials say they're listening to the cities' concerns while also working on addressing the other phosphorus sources. They also note that even under a given water quality standard, they can be flexible when issuing individual permits.

Even if lawmakers successfully limit the MPCA's authority, the Legislature would still be required to ensure Minnesota is complying with the federal Clean Water Act.

When it passed the law in 1972, Congress directed federal and state agencies — not lawmakers — to come up with water quality standards, and for good reason, said Deb Swackhamer, a professor at the University of Minnesota's Humphrey School and an expert on the intersection between science and policy.

"Most of the people who serve in the Legislature are not scientists," she said. "Certainly they represent their constituents. They're also representing the specific interests in their districts, and they're not necessarily representing science."