Water Management and Regulation in the Twin Cities Metro Area
by Louis N. Smith
Presented at Restoring Our Urban Waters Conference, sponsored by Citizens for a Better Environment, March 1997
Urbanization presents a wide array of threats and demands on our water resources. We use our water for recreation, waste disposal, drinking, agriculture, and, here in the Land of 10,000 Lakes, as the centerpiece of our identity and pride in our "quality of life." But the strains put on our water by the demands of these often incompatible uses, combined with the strain of a heavily developed, industrialized urban area, constantly threaten the resource on which so much of our quality of life depends.
Minnesotans appreciate the stress that our modern way of living causes to our water resources. We act to protect our water resource by effectively using national, state, and local institutions, utilizing the powers and capabilities of each to create a comprehensive approach to water resource protection and management. Broad federal programs attack large, national issues; state programs augment them within Minnesota; and special local government units and municipalities work to solve water problems that affect a specific area, municipality, or watershed.
Still, this complex regulatory system can create a dizzying array of water-regulating government agencies, boards, councils, and departments for the unwary. Federal and state agencies often delegate their authority to other agencies, so that permit applications required by federal law are often filed with state agencies, and local government units are often responsible for enforcing state law. In addition, Minnesota recognizes that water resources are often best protected through special units of government with authority to protect entire natural ecosystems, such as watersheds.
The following is a brief description of the various government bodies that regulate water resources in the Twin Cities metropolitan area.
Environmental Protection Agency
The EPA is responsible for carrying out most of the Clean Water Act, including the National Pollutant Discharge Elimination System (NPDES), which regulates the discharge of pollutants into waters of the United States. The EPA also promulgates the substantive criteria for issuing permits for the dredging and filling of wetlands, although the Corps actually implements the program. Though the EPA retains oversight authority and promulgates regulations for enforcement, it delegates a large portion of its responsibilities to other federal and state agencies.
U.S. Army Corps of Engineers
The U.S. Army Corps of Engineers oversees all dredging and filling activities in waters of the United States, including wetlands, under § 404 of the Clean Water Act (33 U.S.C. § 1344) and §10 of the Rivers and Harbors Act (33 U.S.C. § 403). In addition to complying with the requirements of the Corps (found at 33 CFR §323.1 et seq. and 40 C.F.R. part 230), permit applications under §404 are also subject to comment by the U.S. Fish and Wildlife Service and the State Historic Preservation Officer.
U.S. Fish and Wildlife Service
The USFWS enforces both the Endangered Species Act and the National Scenic Waterways Act. Under these laws, the USFWS has strong powers when a proposed project impacts any plant or animal species or waterway protected under federal law. All §404 permits submitted to the Corps of Engineers are also forwarded to the USFWS for comment.
U.S. Department of Agriculture
The USDA is a major protector of wetlands in agricultural areas under the Swampbuster Act, 16 USC §§3821-3824. Under the Swampbuster Act, any farmer who produces an agricultural commodity on a converted wetland or converts a wetland is ineligible for USDA benefits, including price supports, loans, disaster payments, and crop insurance.
Minnesota Pollution Control Agency
The MPCA is the largest single regulator of water in Minnesota, enforcing both federal and state law. EPA delegates much of its authority for federal water programs to the MPCA, including administration of the federal Clean Water Act's National Pollutant Discharge Elimination System (NPDES). Under NPDES, the MPCA regulates (1) direct discharges into surface waters; (2) sewage and waste discharges from treatment facilities into surface waters; (3) stormwater runoff entering surface waters; and (4) discharge of fill into wetlands. Discharges authorized under NPDES discharge permits include sampling, monitoring and reporting requirements.
The MPCA is also responsible for issuing water quality certifications under §401 of the Clean Water Act. Minn. R. 7001.1400 - 7001.1470; 7050.0186. A §401 water quality certification is required in order to obtain at §404 permit from the Corps to discharge dredged or fill materials into a wetland.
Minnesota Department of Natural Resources
The DNR administers water quantity and other water-related resource programs effecting fish and wildlife habitat, recreation, and shoreline management. Certain types of designated wetlands are regulated by the DNR under Minnesota Statutes Chapter 103G. The DNR's management responsibilities extend to lakes, rivers, and floodplains, as well.
Minnesota Board of Water and Soil Resources
The BWSR promulgates rules for the implementation of the Minnesota Wetland Conservation Act. The BWSR oversees local governments' implementation and interpretation of those rules and provides financial, technical and administrative assistance to counties, soil and water conservation districts, watershed districts, watershed management organizations, and other local governments units. BWSR's Dispute Resolution Committee adjudicates disputes over local government units' interpretations of some rules and regulations relating to water resources.
Minnesota Department of Health
In its role to protect, maintain and improve the health of Minnesotans, the MDH regulates sewage, groundwater and drinking water and establishes specific health limits for substances or chemicals determined to cause health risks. The MDH also sets standards for boring and operation of wells and infectious waste disposal.
Environmental Quality Board
Through its Water Resources Committee, the Environmental Quality Board (EQB) is responsible for anticipating and responding to key environmental issues and for coordinating local, state, and federal agency oversight. The EQB also promulgates and oversees regulations regarding the preparation of Environmental Impact Statements and Environmental Assessment Worksheets.
Minnesota Department of Agriculture
The MDA implements state-specific laws governing pesticides and fertilizers and administers sustainable agriculture and integrated pest management programs. The MDA also implements the federal Insecticide, Fungicide, and Rodenticide Program in Minnesota.
SPECIAL DISTRICTS AND LOCAL GOVERNMENTS
Watershed Districts have broad authority to address a wide variety of threats to water quality without respect for municipal boundaries. Holding independent authority for ensuring water quality and resource integrity, watershed districts develop and implement comprehensive watershed plans under the authority of Minn.Stat.§103D et seq. Watershed management may include regulations geared to control floodwaters; navigation or drainage improvements; reclamation or filling of wet and overflowed land; providing or conserving public water supply; providing for sanitation and public health; repairing or improving drainage systems; controlling soil erosion and regulating private projects by property owners affecting the beds, banks, and shores of lakes, streams and wetlands; protecting and enhancing water quality and groundwater quality.
Watershed Management Organizations
Unlike Watershed Districts, which function independently of other local government units (LGU's), WMO's are products of joint powers agreements, where two or more LGU's cooperate in dealing with local water issues by augmenting their existing zoning, regulatory, and permitting powers. Minn.Stat. §103B.201 et seq. WMO's are managed by a joint board representing all of the participating LGU's and employ some of the powers enjoyed by a watershed district. WMO's exist only in the seven county metro area. Minn.Stat. §103B.205, subd. 13.
Lake Improvement Districts
Organized under Minn.Stat. §103B.501 et seq., Lake Improvement Districts hold regulatory power over the use of a particular lake, with authority to act to preserve the natural character of the lake and its shoreline. Lake Improvement Districts also act to improve water quality, to ensure reasonable water quantity, and to assure protection of the lakes from the detrimental effects of some human and certain natural processes. Included in these regulations are often limits on the types of boats and motors used, and times, places, and maximum speeds for their use.
Sanitary Districts and Sanitary Sewer Districts
Established under Minn.Stat. §§115.18 et seq. and 115.61 et seq. respectively, sanitary and sanitary sewer districts provide statutory authorization for inter-municipal districts for collection, transportation, treatment, and disposal of domestic and industrial sewage, garbage, and waste. Any two or more municipalities may form such districts.
Soil and Water Conservation Districts
Under Minn.Stat. §103C.01 et seq., Soil and Water Conservation Districts aid in the maintenance of soil and water resources. The districts are administered by local boards and may conduct surveys, investigate and research potential threats to water resources, and assume conservation projects, publishing and implementing comprehensive plans towards their completion.
St. Paul Water Utility
The City of St. Paul owns and operates its own water utility under the authority of Minn.Stat. §452.08. The Water Utility provides clean water to St. Paul and some of its outlying suburban communities. The Utility operates intake, treatment, and distribution systems, and cooperates with local community groups to improve water quality and provide wildlife benefits in the Vadnais Lake Area Water Management Organization.
Counties, Cities and Towns
Local Government Units (LGU's) use their zoning, ordinance, permitting, and general police powers to affect water resources. Counties outside the seven county metro area have authority to develop and implement county comprehensive water plans. LGU's are often responsible for non-DNR regulated wetlands, but these regulatory powers are often shared with Watershed Districts and Watershed Management Organizations. LGU's may oversee local activities under delegated authority from state agencies as well, such as bridge and culvert work through the DNR's general permitting program.
In the seven county metro area, the Metropolitan Council functions as a planning agency, overseeing and controlling many land use and transportation decisions affecting water resources. The Council also controls the area's solid waste program, and the Metropolitan Council Environmental Services (MCES) oversees surface water and water pollution abatement planning, non-point pollution abatement, industrial wastewater management, water quality monitoring, and it also directs the operation of the metro area's nine wastewater treatment plants.