MCEA EQB Shore Comment 032509

Amy Conner

Description

Minnesota Center for Environmental Advocacy The legal and scientific voice protecting and defending Minnesota’s environment March 25, 2009 26 East Exchange Street, Suite 206 Saint Paul, MN Administrative Law Judge Steve M. Mihalchick via electronic mail 55101-1667 Office of Administrative Hearings 651.223.5969 600 North Robert Street 651.223.5967 fax P. O. Box 64620 [e-mail] Saint Paul, MN 55164-0620 www.mncenter.org Founding Director RE: Comments on the Shoreland Related Components in the Proposed Sigurd F. Olson (1899-1982) Amendment to Rules Governing the Environmental Review Program, Minnesota Rules, chapter 4410. Board of Directors Cecily Hines Chair Honorable Judge Steve M. Mihalchick: Kent White Treasurer This letter provides Minnesota Center for Environmental Advocacy’s (MCEA’s) comments on the shoreland related components of the proposed amendment to Mary Horak Binger Minnesota Rules Chapter 4410. MCEA is the legal and scientific voice protecting Kim Carlson and defending Minnesota's environment for more than 30 years. In recent years, Merritt Clapp-Smith MCEA has been engaged in a number of issues related to conservation, protection, and enhancement of Minnesota’s public waters and aquatic resource stewardship Charles K. Dayton including the DNR’s North Central lakes pilot project, DNR’s revision of Aquatic Robert G. Dunn Plant Management (APM) rules, the current statewide shoreland ...

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• Publié par: Fyan
• Nombre de lectures: 29
• Langue: English

Extrait

Minnesota Center for Environmental Advocacy

The legal and scientific voice protecting and defending Minnesota’s environment

March 25, 2009

26 East Exchange Street,

Suite 206

Saint Paul, MN

55101-1667

651.223.5969

651.223.5967 fax

[e-mail]

www.mncenter.org

Founding Director

Sigurd F. Olson

(1899-1982)

Board of Directors

Cecily Hines

Chair

Kent White

Treasurer

Mary Horak Binger

Kim Carlson

Merritt Clapp-Smith

Charles K. Dayton

Robert G. Dunn

Janet C. Green

Vanya S. Hogen

Roger Holmes

Douglas A. Kelley

Michael Kleber-Diggs

Dee Long

Steve Piragis

Nancy Speer

Martha C. Brand

Executive Director

Administrative Law Judge

Steve M. Mihalchick

via electronic mail

Office of Administrative Hearings

600 North Robert Street

P. O. Box 64620

Saint Paul, MN 55164-0620

RE: Comments on the Shoreland Related Components in the

Proposed

Amendment to Rules Governing the Environmental Review Program,

Minnesota

Rules

, chapter 4410.

Honorable Judge

Steve M. Mihalchick

:

This letter provides Minnesota Center for Environmental Advocacy’s (MCEA’s)

comments on the shoreland related components of the proposed amendment to

Minnesota Rules Chapter 4410.

MCEA is the legal and scientific voice protecting

and defending Minnesota's environment for more than 30 years.

In recent years,

MCEA has been engaged in a number of issues related to conservation, protection,

and enhancement of Minnesota’s public waters and aquatic resource stewardship

including the DNR’s North Central lakes pilot project, DNR’s revision of Aquatic

Plant Management (APM) rules, the current statewide shoreland rulemaking process,

and participated on the EQB shoreland development advisory committee in 2005.

Previous MCEA comments on the shoreland components of this rulemaking are

included in the record of this process.

At this time, we have the following additional

comments:

General Comments

Separate thresholds for environmental review in shoreland areas are needed and

overdue.

In additional to the needs for the new shoreland related environmental review

thresholds described in the SONAR, the proposed thresholds are consistent with

habitat recommendations 2 and 4 in the Minnesota Statewide Conservation and

Preservation plan (see link to plan at

www.lccmr.state.mn.us

).

This comprehensive

plan recently reviewed the trends in population, land use, and development in

Minnesota, recognized the important functions and values of Minnesota shorelands,

and recommended a more holistic approach to shoreland management.

The

reasonable environmental review standards for shorelands proposed in this rule will

help achieve this recommendation.

In the past, shoreland development projects were

covered under the basic residential development standards in EQB rule which meant

that a project proposed for a shoreland area was considered in the same light as a

project proposed in a farm field or any other area.

The science is clear that shoreland

areas provide important ecological functions and are the last line of defense

protecting public waters from water quality degradation.

It makes good sense and

public policy to review proposed projects in shoreland areas differently than other

MCEA Comment EQB Shorelands

areas.

These shoreland related components were developed in 2005 and have not

changed substantively.

It is unfortunate that almost four years have passed since these

changes were developed.

New thresholds will provide for more efficient shoreland project planning and

implementation with clear environmental review expectations.

The past few years, there are numerous examples of proposed shoreland development projects

that have been unnecessarily slowed by the current environmental review process.

This often

has happened when concerned citizens learn of a development proposal during early or middle

stages of a local government’s (LGU) permitting process and they then effectively put the

process on hold for months while the LGU works through the citizen petition process for

environmental review (as noted by EQB staff on page 41 paragraph 4 of the SONAR, there has

been an increasing frequency of citizen petitions for environmental review).

In most of these

petition situations, more reasonable thresholds like those proposed in this rule would have

resulted in more timely project planning and implementation.

The proposed changes give LGUs

and developers an upfront expectation that the environmental review process will be required for

larger development proposals in shoreland areas.

This upfront expectation will make it much

less likely that a project will be delayed by initiation of a citizen’s petition after LGU permitting

has started.

For projects in need of environmental review, the environmental review process

would then begin prior to the permitting process and public input and comments could be

generated prior to permitting.

This is not only better for developers and LGUs it also gives

citizens a more reasonable assurance that permitting decisions would be made based on some

environmental review.

If these rules do not move forward, citizens are likely to continue to use

the petition process at an increasing rate which may cause additional and often unnecessary

delays in shoreland project planning, permitting, and implementation.

Specific comments on proposed amended rules.

4410.0200 – Definitions

.

The shoreland related definitions are items 1, 3, 4, 5, and 6 in this

section.

Except as noted below, we believe that these definitions are needed and reasonable and

that the information provided in the SONAR is based on good information and science.

These

definitions should be as consistent as possible with the current definitions in latest version of the

shoreland rules (M.R. 6120) currently near completion.

Subp. 79b. Sensitive shoreland area.

The list of public waters considered sensitive is

incomplete.

The lists must also include an item F called “shoreland areas immediately

adjacent to impaired waters (excluding mercury impaired waters) listed on the state 303D

list”.

As described in the SONAR, the sensitive waters listed in the definition are those

that “…are especially sensitive to disruption by development projects”.

Waters listed as

impaired on the state’s 303D list clearly also fit this description.

Waters listed as

impaired have been assessed and there is a demonstrated need for them to be listed as

impaired.

These waters do not meet basic water quality standards.

Their impaired

condition makes them particularly sensitive to further water quality degradation which

may be caused by proposed shoreland development.

Lower thresholds for environmental

review of proposed projects in the shoreland area of impaired waters are needed to ensure

that water quality is not further degraded in these waters.

This recommendation to include impaired waters in the definition of sensitive shoreland

areas is consistent with MN Pollution Control Agency policies in stormwater permitting

(attached). As written on page 4:

MCEA Comment EQB Rules Related to Shorelands

Page 2

MCEA Comment EQB Rules Related to Shorelands

Page 3

“

Discharges to waters identified as impaired pursuant to section 303 (d) of the federal

Clean Water Act (33 U.S.C. § 303(d)) where the identified pollutant(s) or stressor(s) are

phosphorus (nutrient eutrophication biological indicators), turbidity, dissolved oxygen,

or biotic impairment (fish bioassessment, aquatic plant bioassessment and aquatic

macroinvertebrate bioassessment), and with or without a U.S. Environmental Protection

Agency (USEPA) approved Total Maximum Daily Load (TMDL) for any of these

identified pollutant(s) or stressor(s), unless the applicable requirements of Part III.A.9

are met.”

This policy establishes a clear precedent that impaired waters should be held to higher

standards related to stormwater management than water that are not impaired.

It is

reasonable to apply a similar policy to environmental review thresholds in shoreland

areas of these impaired waters.

4410.4300 and 4410.4400 - Mandatory EAW and EIS categories.

Except as noted below, the

amendments to mandatory EAW categories are needed and reasonable for residential

developments, resorts campgrounds, and RV parks, and land conversions.

In 2005, MCEA was

part of the advisory committee that helped develop these categories and thresholds.

The SONAR

document clearly explains the need and reasonableness for these categories.

Non-metallic mineral mining (4410.4300 subp. 12 and 4410.4400 subp. 9)

. The specified

thresholds are too large.

We recommend that all proposed non-metallic mineral mining

activities require an EAW and that any over 20 acres proposed in a sensitive shoreland

area and 40 acres in a nonsensitive shoreland area should trigger mandatory thresholds

for an EIS.

The shoreland zone is a just a 1,000 foot wide strip of land adjacent to public

waters.

Mining 20 or 40 acres within this area without any environmental review is not

reasonable.

Non-metallic mineral mining at the proposed levels can easily be more

disruptive to landscape functions in the shoreland area than comparable disturbances

from other development categories in these rules.

For example, the potential impacts of a

proposed 25 dwelling unit residential development is highly unlikely to have the same

impacts as mining 40 acres of the landscape in the shoreland area yet it is required to

have an subject have an EAW.

It is reasonable to require additional environmental

review to any mining projects proposed in shoreland areas.

Thank you for your attention to this important issue that affects the long term integrity and

sustainability of Minnesota’s aquatic resources.

Sincerely,

Henry VanOffelen

Natural Resource Scientist

Minnesota Center for Environmental Advocacy

50785 Bucks Mill Rd

Detroit Lakes, MN 56501

218 – 849 – 5270

Cc: Gregg Downing, Mary Marrow