MPCA denies drainage petition submitted by environmental organizations
In August, the MN Center for Environmental Advocacy (MCEA) and a coalition of seven environmental groups submitted a rulemaking petition to the Minnesota Pollution Control Agency (MPCA) urging the agency to use its statutory authority to create a new regulatory system for public and private drainage projects.
Last week, the MPCA denied the MCEA petition, disagreeing with the petitioners that the Agency had the existing statutory authority to regulate drainage projects. The rationale laid out by the MPCA in their letter closely mirrored separate comments submitted by the Minnesota Corn Growers Association to the MPCA.
Working with our outside general counsel, Gislason & Hunter, MCGA pointed out that the environmental group petition was a dramatic departure from the more than 50 years application of the Minnesota Water Pollution Control Act and a new regulatory process – on top of the already existing regulatory processes for drainage projects – would create an unnecessary and burdensome obstacle for Minnesota farmers, who rely on agricultural drainage for productive crop production.
Further, MCGA argued that MPCA does not have the statutory authority to require permits for agricultural drainage systems due to four main reasons. First, the water pollution control act has not been interpreted to apply to flows from agricultural drainage for over 50 years. Second, water velocity and volume are not pollutants. Third, agricultural drainage tiles and ditches are not point sources, disposal systems or treatment works subject to permitting. Finally, extensive regulatory of drainage systems and cross-references within other statutes confirm the legislature did not intend agricultural drainage systems to be subject to MPCA permitting.
In their letter denying the petition, the MPCA essentially uses some variation of these four reasons to deny the petition.
We don’t expect this to be the last effort from the environmental groups to increase regulations on agricultural drainage systems. It is possible the MCEA will pursue litigation like their efforts to use the courts as an end-run around regulatory processes to increase regulations on commercial fertilizer, feedlots, and pesticide treated seed. If MCEA pursues litigation, MCGA will take the steps necessary to represent the interests of corn farmers as we have done with other litigation efforts in the past year.
It is also possible that the environmental groups will increase pressure on the legislature to enact new agricultural drainage regulations. Although the MPCA received comments letters from MCGA and drainage authorities to reject the MCEA petition, the Agency was also the recipient of letter writing campaigns and citizen petitions from environmental group members and aligned interests to push the MPCA towards exceeding its statutory authority to initiate an agricultural drainage rulemaking. We anticipate the environmental groups will continue to direct their attention to the legislature to achieve their objectives. MCGA will work with our farm group partners and drainage stakeholders to oppose those efforts.
