by Steve Timmer

Jun 29, 2021, 3:00 PM

In re: wild rice

The Environmental Protection Agency published a notice soliciting comments on its intention to add a number of water bodies in Minnesota as wild rice waters impaired by sulfate pollution to the 2020 Minnesota Impaired Waters List (the “303(d) list”).

Why is this action by the EPA necessary? Because for at least a decade Minnesota regulators, the Minnesota Pollution Control Agency, and yes, the Minnesota Department of Natural Resources, and our legislature have done their level best to shank the Wild Rice Rule, which limits sulfate to 10 mg/L in wild rice designated waters.

The EPA issued an extensive decision document, approved April 27, 2021, explaining why its action was necessary. But from the EPA notice soliciting comments, here’s the executive summary:

Additionally, Minnesota [the MPCA] concluded that state law bars MPCA from assessing or listing waters against Minnesota’s federally-approved 10 mg/L standard applicable to “waters used for production of wild rice during periods when the rice may be susceptible to damage by high sulfate levels.”

The EPA responded, in effect, we’ll add the sulfate impaired water bodies to your list, Minnesota, and then we’ll expect you to start taking steps to remediate the impairment.

I prepared a short comment, mostly giving the EPA props for its action. Here it is.

– o O o –

The Decision Document Regarding the Sulfate Impaired Waters, dated April 27, 2021, is a plenary recitation of the history of Minnesota’s malign neglect of its Wild Rice Rule. There is one especially pithy remark on page 16 of the Decision Document regarding Tribal Consultation:

EPA notes that the concerns of Tribal leaders have unfortunately, with respect to the assessment and listing of wild rice waters, gone virtually unaddressed by MPCA specifically and by Minnesota generally.

If anything, that’s charitable.

The wild rice sulfate standard, 10 mg/L, adopted by the MPCA in 1973 (when the MPCA was a quite different institution), and approved by the EPA, has been under frontal assault for at least a decade. And not only by private industry polluters, including of course the mining industry and the electric generators who provide their power, but also by the executive and legislative branches of government in Minnesota – the people who are supposed to be responsible for protecting the environment, and things like wild rice, for the benefit of the state’s citizens, including members of the enrolled tribes.

Here’s just a short recital of the performance of organs of Minnesota government regarding wild rice in the last decade:

In 2011, the legislature passes a law to start the process of weakening or eliminating the Wild Rice Rule through rulemaking.

In 2014, the MPCA stops enforcing the Rule and proposes to replace it with a weaker standard.

In 2015, as part of an end-of-session logrolling bacchanal, the legislature prohibits the MPCA from enforcing the Wild Rice Rule.

In 2016 – and astonishing to me – the legislature prohibits the MPCA from enforcing sulfate limits in an issued permit to the Keetac taconite mine.

In 2017, the MPCA proposes a new rule to weaken the Wild Rice Rule.

In 2018, the Minnesota Office of Administrative Hearings rejects the rule change, finding that the science did not support weakening the rule, and that adopting a weaker rule would be “backsliding.” The MPCA withdraws the rule. The legislature tries to repeal the Rule (which also would have been backsliding, but never mind), but the governor vetoes the effort.

Also in 2018, after prodding by, inter alia, the EPA, the MPCA issues a new permit for the Minntac taconite mine, after its earlier permit expired a quarter of a century earlier.

In 2019, the Minnesota Court of Appeals strikes down the new permit because, among other things, it lacked WQBELs, including for sulfate.

Minntac and Keetac are both owned by U.S. Steel.

[With thanks to Water Legacy for helping me jog my memory on the chronology.]

Even a casual observer would readily conclude that wild rice, and the Tribes for whom it has such cultural, subsistence, and economic value, need the intervention of the EPA against a clearly stacked deck in Minnesota.

It is against this background that the EPA issued the Decision Document of April 27^th, and I applaud it. Stick to it, please, and be on the lookout for additional waters that should be added to the impaired waters list for sulfate because we cannot rely on the MPCA to do its job.

It pains me to say that, but it is regrettably true.

Respectfully submitted,

Steven J. Timmer
June 29, 2021