FMR’s comments on the proposed Groundwater Protection Rule

On August 15, FMR submitted the following comments to Judge Palmer-Denig on the state’s proposed Groundwater Protection Rule. Building off the 1898 Groundwater Protection Act, the new rule is designed to help protect public health by reducing contamination of the state’s aquifers from nitrate pollution.

______

August 15, 2018

To:  Administrative Law Judge Jessica Palmer-Denig
Re:  Proposed Rules Governing Groundwater Protection, Minnesota Rules, 1573; Revisor's ID Number RD4337, OAH Docket No. 71-9024-35205

Your Honor,

Thank you for the opportunity to provide comments on the proposed Groundwater Protection Rule.

While we generally agree with the contours of the rule and the findings of the Statement of Need and Reasonableness [SONAR] produced by the Minnesota Department of Agriculture [MDA], we find that there are several significant flaws in the rule that should be corrected prior to final adoption.

Nitrate contamination in Minnesota’s waters

Nitrate contamination in drinking water in excess of the Health Risk Limit (HRL) poses well-documented health risks, especially to children. Additional research indicates links to birth defects, thyroid problems, cancers and other health concerns.

The public health threat posed by nitrate contamination is real. As you know, Minnesota Department of Health (MDH) data shows that 537 public water supply wells across the state have elevated nitrate levels. Headlines in recent years from Coates, Becker, Cold Spring, Hastings, Mankato, Adrian, Randall, St. Peter, Park Rapids and others are becoming more common. Under the Federal Safe Drinking Water Act, these systems must provide water with nitrate concentrations below the HRL. Including the costs to private water systems, this cost is currently estimated at $6 million per year across Minnesota. Replacement wells can cost communities hundreds of thousands of dollars or more. Nitrate removal systems can cost millions to build and operate, increasing per-household costs by as much as $7,900 annually.

Private wells are also at risk. MDH data shows that 22% percent of tested private wells are above 3 mg/L levels,[1] and nearly 10% of private wells in vulnerable areas are already above the Health Risk Limit (HRL) of 10 mg/L, including some townships with 30-40% of private wells unsafe to drink. For private well-owners with contaminated drinking water, new wells or treatment systems can be prohibitively expensive.

This problem persists. Results from comprehensive state groundwater monitoring from 1985-2010 indicate that the rate of detection of nitrate in groundwater is between 50% - 99% of samples in all groundwater regions. Rates of detection and the share of samples in excess of the HRL have increased in 6 of the 7 tested groundwater regions of the state.[2]

Nitrate contamination in surface waters is also a concern. This is relevant to the proposed rule, as approximately 30% of this nitrate is from agricultural sources leeching into shallow groundwater before migrating into surface waters. Thus, surface water conditions also reflect the relative effectiveness of current efforts to mitigate groundwater contamination.

As demonstrated by the Minnesota Pollution Control Agency’s 2013 report on nitrogen in surface water, approximately 73% of nitrate pollution to Minnesota’s surface waters is from agricultural pollution. Today, approximately 27% of Minnesota streams exceed 10mg/l concentrations for nitrate, and more than 40% exceed 5mg/l. Approximately 211 million pounds of excess nitrate flows downstream through the Mississippi River watershed annually from Minnesota, impacting water quality downstream including in the Gulf of Mexico Hypoxic Zone - which grew to record size in 2017.[1]

Nitrogen fertilizer sales have increased 15% over just the last 5-6 years in Minnesota[2], and new research suggests that changes in precipitation patterns alone will increase nitrate delivery to U.S. surface waters by an average of 19%, and as much as 24% in the corn belt through this century.[3]

The Groundwater Protection Rule is needed and reasonable

The 1989 Groundwater Protection Act established the state goal that "groundwater be maintained in its natural condition, free from any degradation caused by human activities."[4] For agricultural chemicals including nitrogen fertilizer, implementation is directed by the MDA.

The Groundwater Protection Act clearly states that if voluntary adoption of Best Management Practices (BMPS) proves insufficient to achieve the goals of the Act, the MDA has authority to adopt mandatory requirements that include “design criteria, standards, operation and maintenance procedures, practices to prevent releases, spills, leaks, and incidents, restrictions on use and practices, and treatment requirements."[5]

Given the state of Minnesota’s surface waters and groundwater, FMR shares the MDA’s conclusion that voluntary BMP adoption has proven ineffective and rules are needed. According to the SONAR, the average percentage of fields in a corn following corn rotation that exceed fertilization rate guidelines in the past 3 surveys is 37%. For fields growing corn following soybeans, the exceedance rate is 65%.

The MDA conservatively estimates that Minnesota producers use 10-15% more nitrogen fertilizer than necessary to maintain optimum yields, and that nitrogen fertilizer sales should be reduced by approximately 100,000 tons/year to not only improve water quality but also reduce the financial burden on producers.

We find that there is ample evidence that nitrogen fertilizer is being over-applied in Minnesota and that voluntary adoption of BMPs is ineffective. As such, the MDA is justified in promulgating rules to help address this problem.

The proposed rule is reasonable in its approach. Part 1 of the rule only applies to 12.6% of cropland; areas where few farms practice fall/frozen soil application, and where such applications are not recommended under economically-derived best management practices (BMPs).

Part 2 of the rule applies only near our public drinking wells and promotes voluntary BMP adoption, followed by common-sense regulations developed in consultation with a Local Advisory Team (LAT), including area farmers. This strategy balances environmental protection, public health and farm profitability, and is a reasonable, incremental approach to addressing this public health risk.

Opportunities for improvement

While the rule is needed and reasonable in scope, we conclude that the rule will more effectively address nitrate contamination in our state’s groundwater with the following alternations.

1. Enhance protections for private wells
   Many Minnesotans get their water from private wells, which remain unprotected under Part 2 of this rule. We respect the MDAs prioritization of DWSMAs under Part 2 of the rule, and appreciate the agency’s approach to applying Part 2 mitigation levels to these more targeted lands first to gain experience and build on these successes before addressing private wells.
   
   However, the rule offers no guidance or requirements as to whether or when the agency is to apply these “lessons learned” in crafting meaningful protections for private wells under Part 2. The rule should be revised to include a clear timeline for incorporating protections for private wells.
   
   While the costs of implementation are a factor, the MDA has made clear that it intends to conduct monitoring, promote BMPs, and form local advisory teams in vulnerable townships. This represents the bulk of costs associated with applying Part 2 rule protections in these areas. Thus, the additional costs of applying Part 2 mitigation (levels 2-4) in the most vulnerable townships will be manageable and will help ensure clean, safe drinking water for at-risk communities throughout the state.
   In addition, the agency should consider increasing Minnesota’s nitrate fertilizer fees, which compare favorably to neighboring states, to mitigate some of the additional costs of implementing Part 2 protections for private well owners in vulnerable townships.
    
2. Use the best maps
   The state should use groundwater sensitivity maps to protect vulnerable groundwater under Part 1 of the rule. These maps are a far more precise method of identifying vulnerable areas than the proposed soil type approach in the current rule.
   
   While we agree that groundwater sensitivity maps may be less familiar to farm operators, the MDA’s preference for farmer familiarity over scientific accuracy is misguided and should be corrected prior to rule adoption.
   
   It is reasonable to assume that farm operators will need to consult with a compliance map either way once the rule is adopted. As such, farmer familiarity with the maps in question is secondary to the shared goal of preventing groundwater contamination.
    
3. Improve protections for public wells
   When high levels of nitrate are detected in public drinking water wells, Part 2 of the rule proposes mitigation response levels that are far too lenient. The MDA has not provided sufficient evidence that action at these levels will sufficiently protect these public water systems from exceeding the established Health Risk Limit of 10 mg/L.
   
   We propose the following mitigation level thresholds to better protect our groundwater and public health, and reduce the risks of expensive drinking water treatment alternatives in affected communities:
   
   - Level 1: nitrate above 3 mg/L indicates human-caused contamination and should trigger Level 1 mitigation.
   - Level 2: nitrate above 5.4 mg/L is the public health threshold for increased monitoring and should trigger Level 2 mitigation.
   - Level 3: nitrate above 7.5 mg/L (75% of the way to undrinkable) should trigger enhanced regulatory intervention above and beyond level 1-2 voluntary.
   - Level 4: nitrate above 8.0 mg/L (80% of the wat to undrinkable) represents a serious threat to public health, and should trigger Level 4 regulatory intervention.
    
4. Do not limit state authority
   The current rule language explicitly bars the Commissioner of Agriculture from requiring changes to the “primary crop grown" under Level 4 mitigation. In the short term, this approach appears reasonable, as we currently lack economically practicable alternatives to corn and soybean crops in many areas of the state.
   
   However, a number of public and private institutions, including the University of Minnesota, are investing in research and development of new crops that protect groundwater while retaining or improving farm profits.
   
   In addition, the state is currently engaged in a variety of efforts aimed at establishing market incentives to drive production of these alternative crops. The MDA’s own recently-announced Market Feasibility Study aims to identify “…economically viable opportunities to grow perennial crops, winter annuals and cover crops in areas…with highly vulnerable groundwater.”
   
   The current prohibition on restrictions to the primary crop grown should be modified to account for the likely arrival of economically viable crop alternatives in the future. The prohibition in the rule should be modified to read: "...primary crop grown, unless a) such alternative crops can reasonably be predicted to equal or exceed the anticipated return from the primary crop grown, and b) the LAT supports adoption of such restrictions."

Additional concerns

FMR has several additional items that we wish to bring to your attention. We hope that the issues raised below can be resolved to better ensure the goals of the Groundwater Protection Rule are ultimately achieved.

• Excluding counties with <3% cropland agriculture: FMR has two concerns with this approach. First, a community well or a cluster of private wells could experience elevated nitrate levels due to a concentration of cropland agriculture that is sufficient to contaminate wells while remaining below the 3% acreage threshold. The rule should include a specific provision whereby at-risk communities in currently exempt areas can apply for protection under the rule if data shows elevated nitrates from agricultural sources in local groundwater.
  
  Secondly, the 3% threshold may not fully account for changes to Minnesota’s cropland portfolio in the future. Cropland is not fixed, and areas with limited cropland today may experience a sharp increase in cropland acreage in the future. Recent “pinelands to potatoes” conversion in northern Minnesota is one example. Further cropland expansion is possible, exacerbated by changes to climate and precipitation patterns that may invite cropland expansion into previously uncropped areas. The rule should include a specific provision whereby areas with less than 3% acreage today are automatically included under the rule if the 3% threshold is crossed. An assessment of qualifying counties should be conducted on a biennial basis using existing and easily accessible federal, state and local data.
• Exclude economically-conflicted local fertilizer dealers from Local Advisory Teams (LATs): Fertilizer dealers have a direct economic incentive to sell as much fertilizer as possible, and thus have an unresolvable conflict of interest if participating on their own local LAT. The purpose of an LAT is to provide input and recommendations for achieving the goals of the Groundwater Protection Rule, which could include consideration of Level 3 or Level 4 regulations that may be in direct conflict with the business interests of participating dealers. To protect the integrity of the process, fertilizer dealer participation on LATs should be limited only to dealers that do not sell fertilizer within the area under consideration. In this way, fertilizer dealer expertise can be brought to bear on the process without introducing unresolvable conflicts of interest. This is easily accomplished by allowing all interested (conflict-free) parties to participate in LATs (see below).
• LATs should be open to all interested (conflict-free) parties: LATs should be open to all interested parties, provided that its members do not have an unresolvable financial conflict of interest. LATs will inevitably be tasked with advancing regulatory recommendations under Level 3 and Level 4 mitigation. Any such rulemaking process should be conducted in a transparent public manner, per standard state procedure, and open to all interested parties.
• Improve part 1 protections for areas with vulnerable soils: FMR strongly supports the proposed fall and frozen soils fertilizer application ban in “vulnerable areas” and in DWSMAs where N has exceeded 5.4 mg/L within the last 10 years.
  
  However, simply restricting the timing of nitrogen fertilizer application will have little impact in areas that are most vulnerable to contamination. Practically speaking, the fall/frozen soil restriction is just one component (‘timing’) of a larger suite of University of Minnesota nitrogen fertilizer application recommendations that apply in such vulnerable areas.
  
  To offer some meaningful protection for groundwater in vulnerable areas, the full suite of University of Minnesota-recommended practices (rate, timing, source, placement) should be required practices, with an emphasis on application rates. While following such practices alone is insufficient to prevent groundwater contamination, these recommendations are designed to maximize producer profit with minimal groundwater contamination. As such, they are a practical short-term approach to reducing excessive contamination while maintaining or enhancing producer profits.

Conclusion

Minnesota’s 1989 Groundwater Protection Act was developed to protect and restore our most vital natural resource: clean, safe water.

While the proposed Groundwater Protection Rule is needed and reasonable, the rule fails to adequately protect our groundwater. The changes detailed above will allow the rule to better protect our environment and public health for generations to come.

On behalf of the board, staff, volunteers and members of Friends of the Mississippi River, thank you for the opportunity to provide comments on the MDA’s proposed Groundwater Protection Rule.

Sincerely,

Trevor A. Russell
Water Program Director
Friends of the Mississippi River
101 East 5^th Street, Suite 2000
Saint Paul, MN 55101