Groundwater Protection Rule adoption delayed till after 2019 legislative session

In an Oct. 2 article, the Minnesota Corn Growers Association (MCGA) updated readers on a procedural decision involving the proposed Groundwater Protection Rule. At that time, the Office of Administrative Hearings issued an Order determining that the Minnesota Department of Agriculture (MDA) had demonstrated the need for and reasonableness of most of the proposed Groundwater Protection Rule (also known as the Nitrogen Fertilizer Rule).

The Order did determine a few portions of the proposed rule were defective and should be disapproved. MDA subsequently agreed to make the modifications to the rule suggested by the administrative law judge, and the proposed rule was resubmitted to the Office of Administrative Hearings for final approval.

On Nov. 29, the Chief Administrative Law Judge issued a new Order determining that the prior defects had been corrected. However, the Chief Administrative Law Judge also determined the proposed rule could not be finally adopted until after the 2019 legislative session as a result of resolutions passed by the agriculture committees in the Minnesota House of Representatives and Minnesota Senate during the 2018 legislative session.

Based on the Nov. 29 order by the Chief Administrative Law Judge, it appears those actions will pause the formal adoption process of the Groundwater Protection Rule until after the 2019 legislative session. With that, the legislative provisions allowing for the delay have never been used before, so there is no precedent for how the courts would apply the statute if MDA pursued a legal challenge.

It is also important to note that while the final adoption of the Groundwater Protection Rule has been delayed, the rule is proposed to become effective January 1, 2020.

The Nov. 29 Order by the Chief Administrative Law Judge does allow for legislative review of the proposed rule, which MCGA policy supports. MCGA stands ready to share information we have analyzed and prepared during the formal rulemaking process with legislators and the administration of Governor-elect Walz. This includes detailed comments during the initial and rebuttal comment periods, and verbal testimony during July and August Administrative Law Judge hearings.

MCGA worked hard to modify and improve the most onerous provisions of the initial drafts of this rule.  Due to the many comments submitted by corn farmers, the advocacy of MCGA and other organizations, we have been able to make the new rule more workable than the initial proposals. In addition to working with state officials through the rulemaking process, Minnesota’s corn growers have continued their proactive efforts to better protect water quality.

Since 2012, MCGA has invested nearly $6 million dollars in research and farmer education on ways to improve the efficient use of fertilizer in their farming operations. Minnesota’s corn farmers have made a concerted effort to more efficiently manage nitrogen applications by implementing best management practices (BMPs), as well as practices that exceed BMPs when necessary.

MCGA will continue to invest in research, education and best practice adoption that increases the efficiency of nitrogen fertilizer use and addresses groundwater quality concerns. The overall quality of our groundwater is a legitimate concern, and we hope all of Minnesota’s corn growers join us in being part of the solution.

Additional information on the Groundwater Protection Rule, including a timeline and MCGA’s involvement, can be found here.

*MCGA has consulted with the law firm of Gislason & Hunter in analyzing the proposed rule, and in providing comments.

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