Multiple bills undermine state drinking water protection authority
We can all agree that clean, safe drinking water should be accessible and affordable for everyone regardless of geography or income. Sadly, 537 public water supply wells across the state have elevated nitrate levels, and roughly 10 percent of private wells in vulnerable areas already exceed health limits for this pollutant.
Now there are several bills in the Minnesota Legislature seeking to reduce or even eliminate preliminary state agency efforts to begin protecting our drinking water from this pollutant.
Protecting our groundwater
The 1989 Groundwater Protection Act gives the state the authority to pass special rules to protect groundwater in areas at risk of cropland fertilizer contamination.
The Minnesota Department of Agriculture (MDA) is in the process of developing a Nitrogen Fertilizer Rule to do just that.
While the state’s two-part draft rules leave a lot to be desired, the following bills have come forward seeking to further undermine this effort to protect our water.
1. HF 2727 (Green) / SF 2499 (Utke): Nitrogen Fertilizer Rule Prohibited
Purpose: This bill straightforwardly prohibits adoption of any portion of the state’s draft nitrogen fertilizer rule, depriving our public and private wells of protection under the Groundwater Protection Act
2. HF 2748 (Green) / SF 2447 (Utke): Adoption of water resource protection requirements.
Purpose: This bill would effectively block part one of the draft Nitrogen Fertilizer Rule, and potentially indirectly block implementation of the second part.
Blocks part one: The draft rule limits fertilizer application in fall or frozen ground in vulnerable areas, as determined by a highly precise model of local soil conditions and aquifer vulnerability.
This bill would instead require the MDA to toss out the models and maps and initiate an expensive and time-consuming statewide groundwater monitoring network in order to adopt a simple prohibition on a risky and unnecessary practice that most folks follow already.
An impossible standard for part two: This language blocks part two unless the agency can prove voluntary actions haven’t “minimized” pollution. Any voluntary practice could be deemed to help “minimize” pollution, even if drinking water contamination levels are increasing. This sets an impossible legal standard for implementation and effectively blocks the state from protecting compromised drinking water supplies.
3. HF 2887 (Backer) / SF 2720 (Johnson): Nitrogen fertilizer rules prohibited unless approved by the legislature.
Purpose: This bill requires legislative approval of executive branch authority to implement parts of the rule. This approach not only compromises longstanding executive branch authority, but it risks politicizing a public health issue by asking a part-time legislature to master complex groundwater and public health issues in order to evaluate rule implementation.
Any legislative failure to act (whether due to principled objections or simply running out of time) would block parts of the rule from going into effect – a risky proposition when public health is concerned.
4. HF 2736 (Green) / SF 2448 (Utke): Rules prohibited until 15% of wells contaminated.
Purpose: This language bars the state from implementing parts of the rule until 15% or more of wells monitored in an area exceed safe limits, or trend data indicates exceedance within five years. Waiting until 15% of wells are (or are about to be) above safe limits is excessive. Minnesotans shouldn’t have to accept widespread contaminated drinking water while waiting for state intervention.
5. HF 2747 (Green) / SF 2446 (Utke): Exempting certain parcels of land from rules.
Purpose: This final bill exempts any parcel from compliance with the draft rule if any portion of that parcel lies outside of the designated contaminated area, regardless of parcel size or contribution to drinking water contamination.
It's no secret that FMR and many of our allies harbor very real concerns about the state’s draft Nitrogen Fertilizer Rule, namely its failure to properly protect drinking water in private wells. However, the rule is just that: draft.
We urge legislators to withhold legislative intervention in an ongoing rulemaking process and instead allow the agency to complete its final draft rule and put that out for public comment.
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