Restoring State Water Quality Certification at MPCA
Contact: Judy Helgen
(651) 636-6544
Abstract
The Minnesota Pollution Control Agency (MPCA) is currently waiving all Clean Water Act (CWA) Section 401 certifications that ensure that federally permitted activities meet state water quality standards. By giving up its professional review, MPCA cannot determine whether these projects impair state water quality. Applicants for federal permits for activities primarily affecting wetlands, but also stream channels, harbor dredging, dams or bridge abutments, are currently expected to make self-determinations of compliance with state water quality standards. Legislation is needed to ensure that the MPCA receives adequate funding to restore its professional review of these activities, so state water quality is not harmed.
Problem
Up until fall 2001, MPCA had one full time staff professional providing review of Clean Water Act 401 certifications. This staff person reviewed impacts of proposed activities to state waters, and sought ways to "avoid, minimize, or mitigate" impacts to water quality. MPCA cited budget cuts as the basis of its decision to waive all requests by the U.S. Army Corps of Engineers (COE) for state 401 water quality certifications. Without this review, there is no way to know whether activities of dredging in wetlands, alterations in stream channels, dredging harbors, or changes to dams are affecting the quality of the state's waters.
MPCA expects applicants to make their own "self determinations" that projects will meet state water quality standards, thereby relinquishing state oversight. It is unlikely that applicants will have the resources or motivation to make water quality determinations. This increases the risk of liability for both project applicants and the state for violations of state water quality standards.
Minnesota may be the only state in the U.S. that is giving routine waivers to most of its requests for 401 certifications. Alaska proposed to eliminate its 401 program, but restored its five staff members after the mining and fishing industries, concerned they would be exposed to citizen lawsuits, convinced the state to keep its program. Missouri tried eliminating its 401 program in 2003, but a significant public outcry and media attention led to reinstating the three professional staff to work on 401 certifications. In Texas, six or more professionals work on 401 reviews.
The MPCA is the agency assigned responsibility and regulatory authority to require that federally permitted projects are in compliance with the state's Water Quality Standards (MN Rule 7050). The federal CWA 404 permits are co-administered by U.S. Environmental Protection Agency (EPA) and COE. Federal funding is not explicitly provided to states for 401, but states are using EPA 319, 106 and other funds to support their programs. MN Rule 7050 requires compliance with the wetland mitigation process for NPDES and 401 certifications. The state needs to find ways to fund the 401 program.
Position
Funding must be found for the reinstatement of MPCA professional staff review of permits that require 401 certifications. Legislation needs to support the reinstatement of professional staff and the appropriate funding to carry out this work at MPCA. Professional reviews of all significant 401 certification requests must be conducted. Professional determinations will support waivers when anticipated impacts to water quality would not be significant.