Click on the image above to watch the testimony on video.

Chair, Members of the Committee.  My name is Darrell Gerber.  I’m the Natural Resources Associate at the Minnesota Center for Environmental Advocacy.

Thank you for the opportunity to give input on HF707.

I would like to highlight what is being cut in order to move money from the general fund to the Clean Water Fund.

The big loser in this proposal are people who drink water. Some specific examples of the drinking water protections being cut:

• Elimination of a program to help communities protect wells supplying their public drinking water systems ($3.5 Million for Board of Water and Soil Resources (BWSR) Targeted Wellhead/Drinking Water Protection program.) Communities that depend on groundwater for their drinking water are required to ensure that their wells are protected from contamination. This funding helps them by targeting protection in areas at highest risk of contamination. This has the biggest impact on rural communities.
• Cuts to BWSR and Minnesota Department of Health (MDH) programs protecting drinking water sources ($5 million for Surface and Drinking Water Protection/Restoration Grants and $280,000 for MDH Source Water Protection)
• Cuts to Met Council programs to work with their member communities to ensure long-term sustainability of drinking water supplies. ($100,000 for Metropolitan Area Water Supply Sustainability Support)

Agricultural programs also take a big hit. This includes:

• $2 million in Cuts to Minnesota Department of Agriculture's (MDA) Agricultural Water Quality Certification Program. This is a voluntary program for whole farm evaluation of farms that has already certified over 200,000 acres which recently started a partnership with Land o' Lakes to accelerate outreach. These cuts are multiplied by the numerous federal dollars leveraged for on-the-ground installation of best management practices
• Cuts to the Forever Green Initiative ($950,000.) This program is creating the next generation of crops to both protect water quality and be profitable to farmers. Cuts here threaten this work and private-sector partnerships with folks like General Mills and Pepsi
• Elimination of $3 million in matching grants for the Conservation Reserve Enhancement Program (CREP)

Despite the appearance of support for local governments, I’d like to close out by saying that they stand to lose the most by this proposal. Local governments stand on the front lines for water protection and restoration. Many of the programs I mentioned already directly assist local governments. Others worth noting are:

• $850,000 in cuts to Public Facilities Administration Point Source Implementation Grants that help wastewater treatment plants address evolving water quality challenges
• $362,000 in cuts to support county septic programs (Minnesota Pollution Control Agency Enhanced County Inspections/SSTS Corrective Actions)
• $550,000 in cuts to BWSR's One Watershed One Plans which are coordinated local watershed-based water resource plans
• Grants to Soil and Water Conservation Districts only support implementation of buffer strips, not general support for operations
• Reduced support to counties from the tax bill version

In a year where there is a $1.6 billion budget surplus it is disappointing to see an effort to remove over 12% of the Clean Water Fund in order to back fill cuts to the general fund.

We ask the committee to return to the latest Clean Water Council recommendations.

Thank you for the opportunity to speak today.
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(Testimony at the House Legacy Funding Finance Committee, March 27, 2017)
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Thank you Mr. Chair and Members. Mark Ten Eyck representing the Minnesota Center for Environmental Advocacy. Thank you for this opportunity to testify.
 
MCEA opposes many of the policy provisions in this bill. To avoid repeating our previous testimony, we have a packet of written material for handout.
 
Today, I’ll start by saying: it’s not all bad. The Governor’s goal of a 25% improvement in water quality by 2025, and the related public process, is solid. Minnesotans expect clean, fishable, drinkable and swimmable waters. A 25% improvement to water quality would be a significant step in that direction.
 
Most all of the other provisions in the omnibus bill, however, weigh against us ever accomplishing that goal. 
 
Beginning with the budget cuts, many of them are extreme. Of particular note, the nearly 85% General Fund cut for the Minnesota Pollution Control Agency is too much — by a lot. Also, taking $22 million from the Clean Water Fund to implement the buffer law would roll back the Legislature’s 2015 commitment to appropriate this money from the General Fund base beginning in 2018.
 
On the policy side, MCEA’s concerns are in three areas.

First, this omnibus would cut the public out of the environmental decision-making process by

• Eliminating the Environmental Quality Board 
• Eliminating contested case hearings for permits to mine
• Eliminating environmental review for feedlots between 1000 and 2000 animal units
• Allowing pollution dischargers to do their own draft environmental reviews, which is very much like putting the fox in charge of building the henhouse, collecting the eggs, and cooking the omelette

Second, the omnibus would in many instances delay environmental decision-making— not streamline it. It would, for example:

• Encourage, in Art. 3, Sect. 8, long-running and very costly do-overs of agency decisions
• Assign new responsibilities for environmental review to DNR and PCA, then cut their budgets for getting that work done
• Delay full implementation of the buffer law for two years, even though implementation in most counties is running very strong

Third, the omnibus would circumvent the input of experts and scientists doing their jobs. For example, it would:

• Cut DNR’s scientific expertise out of the permit process for drawing down water levels in rare and endangered calcareous fens
• Allow the courts and legislature to substitute their judgment for that of agency scientists, increasing the uncertainty for everyone: businesses, local governments and the public
• Suspend recently adopted water quality standards, including the much needed river eutrophication standard

And then, there is the buffer law: MCEA urges you: Don’t Ditch It in this omnibus. Two points.

• First, the omnibus would erase from the map over 50% of the pre-2015 requirement for buffer on Minnesota watercourses.. That would be erasing about 48,000 miles of 50’ buffer by reducing them to  16.5 feet, a width that has little or no benefit for water quality or wildlife habitat. In acres, the reduction is about 200,000 acres.
• Second, the omnibus would eliminate all buffer law requirements except those funded 100% by state or federal taxpayers. This tips the established process upside down.  Other production businesses, real estate developers, municipalities and homeowners pay most, if not all, of the cost of controlling their pollution discharges. Agricultural businesses should do the same.

In short and in summary, the omnibus is a story of delays here, streamlining there — creating some expediency for pollution permit applicants, but sacrificing important and longstanding protections for public health and the environment.
 
Thank you for hearing MCEA’s testimony today.

​A broad coalition of Minnesota’s largest fishing, hunting and outdoors groups is warning state lawmakers that inaction could harm fishing, hunting and outdoor recreation and jeopardize the state’s $5.5 Billion tourism industry.
 
In a letter to top leaders of both parties in the Minnesota House and Senate, the coalition of more than 40 groups urges the legislature to pass modest license fee increases as proposed by the Minnesota Department of Natural Resources (DNR) and restore historical funding for fish and wildlife management.
 
Under the proposed increases, a deer hunting license would rise from $30 to $34. An annual fishing license would rise $3, from $22 to $25. Several other licenses are affected.
 
“Even with the $3 bump, Minnesota’s fishing license is an incredible bargain for a years’ worth of quality fishing,” said a spokesman for the coalition, John Lenczewski, executive director of the nonprofit conservation group, Minnesota Trout Unlimited. “That small increase costs less than a scoop of minnows or a bag of chips at the gas station,” he added.

​Each year the Citizen Budget Oversight Committee (BOC) scrutinizes DNR expenditures from the Game & Fish Fund and reviews budget projections. In August 2016, faced with a looming Fund deficit, the BOC requested the DNR develop a package of funding, including license fee increases for fishing, hunting, ice shelters and the like, to ensure the solvency of the Fund without a reduction in fish and wildlife management. The DNR prepared the license fee increases and they were approved by Governor Dayton.

At the urging of groups of sportsmen and sportswomen, Minnesota Trout Unlimited and the Minnesota Conservation Federation, prepared a letter of support for license fee and revenue increases for fish and wildlife management. Numerous organizations quickly signed on.  The letter is being sent to key legislators in the decision-making process.
The coalition urges their members and the general public to contact their state representative and senator, saying they support the proposed fee increases, and urge their legislators to return to the State’s longstanding practice of investing a small amount of the state tax generated by hunting and angling activity into the Game & Fish Fund.

The Legislature is expected to set spending targets in the next two weeks with agency budgets coming together quickly after the targets are set. Including license fee increases and additional general funds into the game and fish fund will allow the DNR to better manage the state’s natural resources, especially game and fish populations.
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“This is the year to act,” said MCF executive director Gary Botzek. “Waiting until next year will cause delays in natural resources projects and programs,” he added.
“Minnesota’s natural resources are an incredible asset,” Lenczewski said. “Fishing and hunting are good right now, and people come from all over the country to enjoy it. We cannot afford to jeopardize that asset by shorting the game and fish fund.”

You can view the coalition letter here.

During the week of February 27-March 3, MCEA hosted ten students from the University of Michigan Law School. These students are part of a program called LAWBreaks, which stands for Legal Alternative Winter Breaks. LAWBreaks offers service-learning experiences for law students during theSpring Break of the academic calendar. Trips are planned and designed to provide current law students a brief immersion into the real-world practice side of a pressing legal or social justice issue. LAWBreaks brings students all over the US and the world, including Belize, Arizona, New Orleans, and … St. Paul in February.
 
I sat down with a few of these students to hear about their reflections on the time they spent at MCEA and in Minnesota.
 
NAMES

Reed McCalib
Hometown: Mahtomedi, MN
Dream Legal Job: Director of Environmental Law Clinic at a Law School
 
Amy Roberts
Hometown: Leeds, UK
Dream Legal Job: Working with Technology Start Ups or Public Defense
 
Brett Frazer
Hometown: Anchorage, AK
Dream Legal Job: Environmental Prosecutor
 
What were some of the highlights of your week at MCEA?
 
Reed: MCEA’s staff provided us a number of opportunities throughout the week. We had speakers come in every day during our lunch break, which ranged from people who are activists, to people who are practicing lawyers in the private sector.
 
Amy: I heard from a number of the 1Ls (first year law students) that this trip got them interested and excited about Environmental Law, and that is a result of all the people we had a chance to meet and the staff we worked with at MCEA. To me that shows the value of us taking these LAWBreak trips.
 
What new things did you learn about Minnesota’s environmental issues, or environmental law in general?
 
Brett: I know for me I learned a lot about the complexity of water issues in Minnesota, and how it impacts water all over the country. Minnesota is home to the Headwaters of the Mississippi and Continental Divides, so pollution that goes into the Mississippi River spreads pollution all over the country. It has huge impacts on the Great Lakes, and goes all the way down to oceanic fisheries.
 
Amy: I learned about how environmental law has connection to other social justice issues. There is a strong interconnection between environmental issues and race/equality issues. Jim Erkel gave us some great insight on environmental justice in Minnesota during one of our opportunities to talk with staff.
 
Reed: Minnesota has a deeply rooted and historical connection to wild rice, and as a result the state has laws that protect this resource which is unique to the region. I learned about Minnesota’s efforts to protect that waters that grow this crop, and its cultural significance to the Native American population in the state.
 
Did you guys have any time for fun while you were here?
 
Reed: Oh yes! I think the most fun was just meeting new people every day whether it was speakers, or staff, or some of MCEA’s partners.
 
Amy: The most fun for me was spending time with the other students; we really built a sense of comradery while working together at MCEA all day every day. I got to know some of the younger students and learn about their backgrounds and interests.
 
Brett: MCEA was intentional about scheduling Happy Hours for us to get to know people on a more personal level and in a social setting. It was fun having opportunities to get a small taste of the Twin Cities while we were here for such a short time.

MCEA is grateful for the time these law students spent volunteering for our organization, and we greatly appreciate this partnership opportunity with LAWBreaks to introduce aspiring lawyers to our mission and the importance of environmental law.

NOTE: HF1291/SF1087 continues to move through committees at the Minnesota Legislature. The next hearing is in the Senate Judiciary Committee, Friday, March 10th at 10:00 AM in Minnesota Senate Building Room 1100. This testimony was in front of the House Environment and Natural Resources committee. 

​Chair, Members.  Thank you for the opportunity to testify. My name is Kevin Reuther.  I’m the Legal Director of the Minnesota Center for Environmental Advocacy, MCEA.  For more than 40 years MCEA has used law and science to protect and defend Minnesota’s environment and the health of its people.

As we all know, but sometimes need reminding, Minnesota is blessed with incredible environmental resources – plentiful water, clean air, forests, wetlands, wildlife – it’s the reason many of us choose to live here.  These resources are the foundation of a multimillion dollar recreation and tourism industry that supports thousands of jobs in our state.

A recent study found that in 2016 visitors to the Boundary Waters alone created nearly 1000 jobs in Northestern MN counties and generated over $57 million in economic impact.

The environment is unquestionably Minnesota’s biggest asset.  And the citizens of the state have entrusted you, our elected officials, with stewardship of this most important resource.  The laws and policies that you enact, and the agencies of the executive branch implement, reflect the value we place on a clean environment.

Which brings us to this bill.  HF 1291/SF 1087 is not an environmental protection bill.  It is an environmental degradation bill.  This bill weakens existing laws and policies that protect our environment.  It will result in more, not less, pollution.

There are a number of concerning elements to the bill. I want to highlight 4 things in particular – (1) the mandatory timeline to issue draft permits; (2) the change to judicial review; (3) giving the regulated party authority to write its own environmental review; and, finally (4), the elimination of the EQB. None of these changes will further environmental protection; instead they do the opposite.

First, the bill hampers the ability of government agencies to do their job in writing good, protective permits by imposing unrealistic timelines in the name of streamlining. (Article 1, sec 1 as to DNR; Sec 7 as to PCA) As a reminder, we’re talking about permits to pollute.  Industry is required to apply for these permits because they are requesting permission to dump pollution into our waters and our air.

While the agencies have done admirably in completing permits under the existing 90 and 150 day goals (they meet these goals 97% of the time) projects are not “one size fits all” and requiring that they all be permitted on the same timeline makes no sense.  Some projects are simply too big and complex to be adequately permitted in 150 days. Mandating that permits must be granted within a certain time frame without reference to the context, the industry, the project, or the environmental resources at risk is simply bad policy. Indeed, it will likely result in further delay rather than streamlining because permits that are rushed and superficially developed will not be protective of the environment (and likely not able to stand up to judicial review).  Again, we the citizens of Minnesota have entrusted government with stewardship of this very important asset, the environment.  We need government to take the time required to make good decisions.
 
Second, the bill seeks to take away the rights of local governments and the public to have a thorough administrative review of DNR’s decisions on mining. Section 5 of this bill looks innocuous, but isn’t.

This is unjustified special treatment for mining companies.  In general, significant decisions affecting the environment made by agencies are subject to what is referred to as “contested case” proceedings – essentially a trial where parties with different perspectives can present their evidence and build a record to support or oppose an agency decision.

Since 1969 it has been the policy of the state to control the environmental effects of mining and preserve natural resources by requiring all mining companies to apply for and receive a permit to mine. Those permits must include, among other things, plans for how the land will be reclaimed and clear financial requirements that ensure the company will not leave tax-payers holding the bag if things don’t go as planned. And since 1969 those permits have been subject to review in contested case proceedings.  In other words, local governments and affected citizens could request that an administrative law judge review DNR’s decisions on these critical matters in the permit to mine.  This right was affirmed most recently in a decision by the Court of Appeals just last month, which involved Lake of the Woods County’s challenge to Hibbing Taconite’s wetland replacement plan. 
(DNR's approval of wetland replacement under a mining reclamation plan is subject to review through a contested-case proceeding. See Minn.Stat. § 93.50 (2014) (providing for review under chapter 14). In re Hibbing Taconite Mine & Stockpile Progression, 888 N.W.2d 336, 341 (Minn. Ct. App. 2016))

HF 1291/SF 1087 would take that right away.  It eliminates the rights of counties and the public to present evidence and have a trial before an administrative law judge.  Instead, only what are called “certiorari appeals” would be allowed. Those are appeals to the appellate court based on the DNR’s administrative record – there’s not opportunity to build or challenge that record in a trial before a judge.

There is no basis for exempting agency decisions on mining from contested case proceedings. In fact, because of their complexity and significant environmental  impact, mining projects are exactly the types of projects that deserve the review and scrutiny of this type of contested proceeding.  Contested case proceedings provide the opportunity for affected parties to air and resolve disputes and build a solid record for permits that will actually protect the environment and meet the public interest.  We therefore strongly object to this provision.

Third, the bill eliminates meaningful environmental review by letting the polluting industry itself write its own environmental review document.  (Sec 14)

For four decades now, environmental review has allowed agency experts and the public to study the environmental impacts of big projects BEFORE they happen.  Environmental review gathers information about the project and alternatives that can make a large, potentially destructive and damaging project less polluting.  It leads to better projects that can meet existing standards and be permitted. It also serves the important role of educating the public and gathering public input.

This bill takes environmental review out of the hands of the public and the agencies with expertise and puts it in the hands of the polluters.  Under this bill, industries can write their own environmental review. As a result, all of the underlying data and communications will be in the hands of private industry rather than government. And that means hidden from the public. That is antithetical to more than 40 years of environmental regulation and turns the environmental review process on its head.

There are other troubling changes to environmental review here as well.  The whole point to environmental review is that the regulator studies the project and its impact BEFORE permitting so it can inform the permit requirements.  Making the agency begin permitting at the same time as it begins studying the impacts makes no sense. (Sec. 11).  Likewise, Sec. 12 appears to be another give-away to mining companies, confusingly making approval of environmental review an automatic approval of wetland replacement plans. There is no reason to skip existing procedures for approving wetland replacement plans.

Finally, this bill—with no justification that we can determine—eliminates the sole state-wide entity that has had cross-agency jurisdiction to protect Minnesota’s environment, the Environmental Quality Board.  (Article 2)

How does elimination of the EQB help state government be a good steward of Minnesota’s natural resources and its environment?  It doesn’t.

The EQB does important work that helps Minnesotans understand environmental problems and participate in resolving them.  Take, for example, the EQB’s recent effort with regard to frac sand mining. Confronted with a new and booming industry with potential for significant pollution and growing public concern and controversy, the EQB led an effort to develop rules to help local governments manage this new industry. Divisive battles that otherwise would have likely resulted in years of litigation have been avoided because of the EQB’s leadership and ability to bring stakeholders together. Now is not the time to eliminate the state-wide body with these skills and expertise.

In sum, HF1291 does nothing to further the protection of Minnesota’s most important asset, its environment. To the contrary, it places that asset more at risk.  Proponents of this bill say that it does not change any environmental standards.  And that is correct – this does not legislate new standards.  But Minnesota’s environmental standards are only as effective as their implementation and enforcement.  And while this bill may not legislate new standards, it certainly hampers the public’s and agency’s ability to implement and enforce those standards.

We have entrusted you to be stewards of our environment –to work for its protection, not its destruction – and that requires a no vote on HF 1291/SF 1087.