Fight Trump Efforts to Weaken Minnesota’s Authority to Protect Clean Water
Please sign by 9:00 AM ON MONDAY, OCT. 21, 2019
The Trump Administration’s Environmental Protection Agency (EPA) has proposed rules to weaken Minnesota’s authority and the authority of Tribes to protect our clean water. Section 401 of the Clean Water Act was written to allow States - and Tribes with treatment as a state - to block federal permits for pipelines, sulfide mines and massive dams that would result in violation of their water quality standards.

Minnesota’s Attorney General, Attorneys General in many other States, and the National Tribal Water Council have opposed these proposed EPA rules. But the Administration continues to favor oil, gas, and sulfide mine special interests over the public interest in clean water.

Minnesota’s Boundary Waters, Lake Superior, Red River, and Mississippi River watersheds are threatened by the proposed Section 401 rules, which would:

° Deny States and Tribes sufficient time and information to object to federal permits,

° Let federal agencies that granted permits deny challenges as outside the “scope” of objections allowed,

° Exclude objections to impacts like wetlands changes even when they increase toxic mercury contamination of fish.

Please sign on to oppose EPA’s efforts to weaken Minnesota’s and Tribes’ authority to protect our clean and abundant water.

If you are signing as a group, please fill in the name of the organization and your title. If you are signing as an individual, please feel free to add a title (nurse, angler, chemist, grandfather) if you choose. We will not share your email.

Please also share with your friends, allies and colleagues. We will submit one letter on behalf of “Minnesotans for the Protection of Clean Water.”

Please sign by 9:00 AM ON MONDAY, OCT. 21, 2019.

It would be great if you’d also send a brief personal comment to the EPA using this link:
My group/I wish to stand up for water and sign on to the “Minnesotans for Protection of Clean Water” letter opposing EPA rules proposed to weaken Section 401 authority to protect Minnesota water
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Letter to be submitted on behalf of “Minnesotans for the Protection of Clean Water”:
RE: Docket ID No. EPA-HQ-OW-2019-0405
Opposition to Proposed Rules Undermining Section 401 of the Clean Water Act

Dear Administrator Wheeler and Director Goodin,

The undersigned Minnesota conservation groups, civic groups, and individuals strongly oppose the rules on water quality certification pertaining to Section 401 of the Clean Water Act proposed by the U.S. Environmental Protection Agency (EPA). The EPA’s proposed rules would undermine regulations, statutes, and treaties that have protected water in Minnesota and throughout the United States for more than 40 years. The proposed rules are a travesty clearly intended to undermine the statutory purpose of the Clean Water Act and should be rejected in their entirety.

The proposed rules would promote the power of the federal Administration at the expense of the rights of States and Tribes, including 11 federally-recognized tribal nations in Minnesota, two of which Tribes have the authority to enact water quality standards enforceable under the Clean Water Act. They would directly conflict with the Administration’s focus on “cooperative federalism.”

The proposed rules would undercut Minnesota’s ability to protect international waters, including the Boundary Waters Canoe Area Wilderness, under the Boundary Waters Treaty of 1909 and the Lake Superior Basin under the Great Lakes Charter and the Great Lakes Initiative, under which Minnesota statutes and regulations protect both quantity and quality of Lake Superior watersheds. Finally, the proposed rules would explicitly and by design enshrine a dangerous and short-sighted preference for oil and gas and other extractive industries over States’ and Tribes’ ability to protect their communities’ clean water, ecology, health, sustenance, diverse economies and future generations.

Section 401 of the Clean Water Act Matters to Minnesotans
Section 401 of the Clean Water Act allows States and Tribes with treatment as a State to serve as a check and balance for federal Section 404 permits for crude oil pipelines, mines, hydroelectric power plants and other corporate projects that dam rivers or dredge and fill streams and wetlands. The United States Supreme Court has long held that States where a federally permitted project would be located or downstream have the right to object under Section 401 to protect the flow of their water and the quality of their water. Federal permit conditions must address concerns raised in objections under Section 401 to ensure that requirements of State water quality laws are followed. Section 401 water quality protections also apply to Tribes that have gone through the extensive federal process to obtain treatment as a State.

EPA Proposed Section 401 Rules Would Undermine State and Tribal Water Protection
The Clean Water Act reflects the policy of the U.S. Congress to “recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution” of waters within their borders. 33 U.S.C. § 1251(b). In fact, under the Clean Water Act, States and Tribes with treatment as a State have the authority to adopt and enforce water quality protections that are more stringent than federal standards. 33 U.S.C. §1370. Section 401 of the Clean Water Act, 33 U.S.C. § 1341, is an explicit recognition that no federal permit can force a State to accept a project that violates its water quality standards. The Section 401 objection process is the way States and Tribes protect their water quality.

EPA’s proposed rules would seriously undermine protection of Minnesota waters:

1. The proposed rules would set the time limit for a Section 401 objection to start running when the application is first made to dam waters or destroy wetlands and streams. The clock would run out whether or not the application was complete and whether or not environmental review had been done to reveal project harms. This rule change would mean that States and Tribes would not know the final plan and impacts of a project to evaluate whether an objection or conditions for certification are necessary. Minnesota’s experience with the Enbridge Line 3 pipeline and the PolyMet copper-nickel mine demonstrate that a premature Section 401 timeline based on incomplete information would completely fail to protect Minnesota waters.

2. The proposed rules would allow the federal government issuing the permit to decide if the objection made by the State or the Tribe is within the “scope” of the new Section 401 rules. Basically, this requirement would mean that the very agency issuing the permit would have the authority to decide if State or Tribal objections would even be considered. This rule change creates a conflict of interest that would weigh in favor of federal approval of resource destruction and would threaten clean water and harm State and Tribal communities affected by the project.

3. The proposed rules would limit Section 401 objections to “assuring that a discharge . . will comply with water quality requirements.” Minnesota is required to protect water quantity under the Great Lakes Compact and has previously denied and conditioned certifications to prevent dredge and fill of streams; these authorities would be removed. Perhaps most dangerous, neither the State nor Minnesota Tribes could object to projects that increase downstream methylmercury contamination of fish due to changes in wetlands, multimedia effects of sulfur and mercury, or sulfate discharges that, in themselves, do not violate water quality standards. This threat to the health of fetuses, infants, children and downstream communities could neither be challenged nor mitigated by a State or a Tribe under the EPA’s proposed rules.

EPA Proposed Section 401 Rules Threaten Minnesota’s Irreplaceable Fresh Water Resources
People in Minnesota rely on life-giving water resources that are unique not only in the United States, but in North America and across the globe. Section 401 certification is critical to protect these waters consistent with international treaties and treaties with Tribes.

The Boundary Waters Canoe Area Wilderness contains more than one million acres of freshwater lakes and wilderness. The valuation of natural benefits (i.e., ecosystem services, such as cleaning air and water, moderating natural disturbances, and promoting human well-being) of the Boundary Waters is estimated to be $1.39 billion; this does not account for job creation (around 17,000 jobs), or the more than $913 million in sales annually that tourism brings to the region.

The Great Lakes are the most important freshwater resource in the world, supplying 84 percent of the surface water in North America and 95 percent of the surface water in the United States. By surface area, Lake Superior is the largest freshwater lake in the world. Federal and state officials have been working for years to address a century’s work of industrial pollution in Lake Superior, particularly in the St. Louis River estuary, where the largest U.S. tributary to Lake Superior flows past Duluth and into the Great Lakes. Billions of taxpayer funds have been spent to clean up polluted ecosystems under the Great Lakes Restoration Initiative and the Superfund programs; these investments need to be sustained by restricting future pollution locally and from inflowing tributaries. The proposed rules would weaken Section 401 certification, which now allows Minnesota to uphold statutes and rules that protect both the quality and quantity of water in the Lake Superior watershed.

Many projects seeking federal Section 404 wetlands destruction permits are located in territories ceded to Dakota or Ojibwe peoples under treaties with the United States. When Minnesota withholds Section 401 certification for projects that fail to comply with state statutes and rules, the State is protecting freshwater resources, aquatic life, wild rice and wildlife on which the State’s diverse communities, including Indigenous peoples, depend for sustenance, culture, quality of life and life itself.

EPA Proposed Section 401 Rules Would Put Oil Profits over Health, Ecology, Climate, Communities
The objective of this EPA’s proposed Section 401 rules are no secret. By its own text, EPA’s proposal is an effort to change Clean Water Act regulations to be consistent with President Trump’s Executive Order 13868 Promoting Energy Infrastructure and Economic Growth. The regulations intend to require States to prize oil more than water and short-term extraction over mitigation of climate crisis and protection of natural resources. The undersigned groups and individuals reject that choice as short-sighted and contrary to Minnesota’s values.

In addition, Minnesotans are aware of the costs that energy infrastructure and federally permitted activities can have on the health and welfare of our communities. As a legacy of fossil fuel combustion, Minnesota waters are impaired due to excessive mercury. In Minnesota’s Lake Superior region, the Minnesota Health Department found in a study of over 1,400 babies that 1 out of 10 Minnesota newborns were born with unsafe levels of methylmercury in their blood. The threshold level of “unsafe” methylmercury in this study was a level that peer-reviewed literature associates with decreased IQ. Minnesota doctors have explained that the developing brains of fetuses, infants and children are 4 to 5 times more sensitive to methylmercury than are the brains of adults and that neurological impairments from mercury can only be managed, not cured. The health of future generations requires that States and Tribes retain the authority to object to federal permits that contaminate Minnesota waters.


For all of the above reasons, the following Minnesota groups and individuals call upon the EPA to reject the proposed rules undermining Clean Water Act Section 401 certification in their entirety. These rules are contrary to Minnesotans’ interests in clean water, natural resources, climate, health, sustainable economies and the future generations of our communities.

Sincerely yours,
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