S.F. No. 762, 5th Engrossment - 84th Legislative Session (2005-2006)
Posted on May 20, 2006
1.1 A bill for an act
1.2 relating to the environment; modifying provisions for cost-sharing contracts
1.3 for erosion control and water management; creating the Clean Water Legacy
1.4 Act; providing authority, direction, and funding to achieve and maintain water
1.5 quality standards according to section 303(d) of the federal Clean Water Act;
1.6 creating loan and grant programs; providing for nutrient loading offset; requiring
1.7 a report on phosphorus discharge rules; appropriating money;amending
1.8 Minnesota Statutes 2004, sections 103C.501, subdivision 5; 115.03, by adding a
1.9 subdivision; 446A.051; Minnesota Statutes 2005 Supplement, section 446A.073,
1.10 subdivisions 1, 2; proposing coding for new law in Minnesota Statutes, chapter
1.11 446A; proposing coding for new law as Minnesota Statutes, chapter 114D.
1.12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.13 Section 1. Minnesota Statutes 2004, section 103C.501, subdivision 5, is amended to
1.14 read:
1.15 Subd. 5. Contracts by districts. (a) A district board may contract on a cost-share
1.16 basis to furnish financial aid to a land occupier or to a state agency for permanent systems
1.17 for erosion or sedimentation control or water quality improvement that are consistent with
1.18 the district's comprehensive and annual work plans.
1.19 (b) The duration of the contract may must, at a minimum, be the time required to
1.20 complete the planned systems. A contract must specify that the land occupier is liable
1.21 for monetary damages, not to exceed the and penalties in an amount of up to 150 percent
1.22 of the financial assistance received from the district, for failure to complete the systems
1.23 or practices in a timely manner or maintain the systems or practices as specified in the
1.24 contract.
1.25 (c) A contract may provide for cooperation or funding with federal agencies. A land
1.26 occupier or state agency may provide the cost-sharing portion of the contract through
1.27 services in kind.
2.1 (d) The state board or the district board may not furnish any financial aid for
2.2 practices designed only to increase land productivity.
2.3 (e) When a district board determines that long-term maintenance of a system or
2.4 practice is desirable, the board may require that maintenance be made a covenant upon
2.5 the land for the effective life of the practice. A covenant under this subdivision shall be
2.6 construed in the same manner as a conservation restriction under section 84.65.
2.7 Sec. 2. [114D.05] CITATION.
2.8 This chapter may be cited as the "Clean Water Legacy Act."
2.9 Sec. 3. [114D.10] LEGISLATIVE PURPOSE AND FINDINGS.
2.10 Subdivision 1. Purpose. The purpose of the Clean Water Legacy Act is to protect,
2.11 restore, and preserve the quality of Minnesota's surface waters by providing authority,
2.12 direction, and resources to achieve and maintain water quality standards for surface waters
2.13 as required by section 303(d) of the federal Clean Water Act, United States Code, title 33,
2.14 section 1313(d), and applicable federal regulations.
2.15 Subd. 2. Findings. The legislature finds that:
2.16 (1) there is a close link between protecting, restoring, and preserving the quality of
2.17 Minnesota's surface waters and the ability to develop the state's economy, enhance its
2.18 quality of life, and protect its human and natural resources;
2.19 (2) achieving the state's water quality goals will require long-term commitment and
2.20 cooperation by all state and local agencies, and other public and private organizations
2.21 and individuals, with responsibility and authority for water management, planning, and
2.22 protection; and
2.23 (3) all persons and organizations whose activities affect the quality of waters,
2.24 including point and nonpoint sources of pollution, have a responsibility to participate in
2.25 and support efforts to achieve the state's water quality goals.
2.26 Sec. 4. [114D.15] DEFINITIONS.
2.27 Subdivision 1. Application. The definitions provided in this section apply to the
2.28 terms used in this chapter.
2.29 Subd. 2. Citizen monitoring. "Citizen monitoring" means monitoring of surface
2.30 water quality by individuals and nongovernmental organizations that is consistent with
2.31 section 115.06, subdivision 4, and Pollution Control Agency guidance on monitoring
2.32 procedures, quality assurance protocols, and data management.
3.1 Subd. 3. Clean Water Council. "Clean Water Council" or "council" means the
3.2 Clean Water Council created pursuant to section 114D.30, subdivision 1.
3.3 Subd. 4. Federal TMDL requirements. "Federal TMDL requirements" means the
3.4 requirements of section 303(d) of the Clean Water Act, United States Code, title 33,
3.5 section 1313(d), and associated regulations and guidance.
3.6 Subd. 5. Impaired water. "Impaired water" means surface water that does not
3.7 meet applicable water quality standards.
3.8 Subd. 6. Public agencies. "Public agencies" means all state agencies, political
3.9 subdivisions, joint powers organizations, and special purpose units of government with
3.10 authority, responsibility, or expertise in protecting, restoring, or preserving the quality of
3.11 surface waters, managing or planning for surface waters and related lands, or financing
3.12 waters-related projects. Public agencies includes the University of Minnesota and other
3.13 public education institutions.
3.14 Subd. 7. Restoration. "Restoration" means actions, including effectiveness
3.15 monitoring, that are taken to achieve and maintain water quality standards for impaired
3.16 waters in accordance with a TMDL that has been approved by the United States
3.17 Environmental Protection Agency under federal TMDL requirements.
3.18 Subd. 8. Surface waters. "Surface waters" means waters of the state as defined
3.19 in section 115.01, subdivision 22, excluding groundwater as defined in section 115.01,
3.20 subdivision 6.
3.21 Subd. 9. Third-party TMDL. "Third-party TMDL" means a TMDL by the
3.22 Pollution Control Agency that is developed in whole or in part by a qualified public
3.23 agency other than the Pollution Control Agency consistent with the goals, policies, and
3.24 priorities in section 114D.20.
3.25 Subd. 10. Total maximum daily load or TMDL. "Total maximum daily load" or
3.26 "TMDL" means a scientific study that contains a calculation of the maximum amount of a
3.27 pollutant that may be introduced into a surface water and still ensure that applicable
3.28 water quality standards for that water are restored and maintained. A TMDL also is
3.29 the sum of the pollutant load allocations for all sources of the pollutant, including a
3.30 wasteload allocation for point sources, a load allocation for nonpoint sources and natural
3.31 background, an allocation for future growth of point and nonpoint sources, and a margin
3.32 of safety to account for uncertainty about the relationship between pollutant loads and
3.33 the quality of the receiving surface water. "Natural background" means characteristics of
3.34 the water body resulting from the multiplicity of factors in nature, including climate and
3.35 ecosystem dynamics, that affect the physical, chemical, or biological conditions in a water
4.1 body, but does not include measurable and distinguishable pollution that is attributable to
4.2 human activity or influence. A TMDL must take into account seasonal variations.
4.3 Subd. 11. TMDL implementation plan. "TMDL implementation plan" means a
4.4 document detailing restoration activities needed to meet the approved TMDL's pollutant
4.5 load allocations for point and nonpoint sources.
4.6 Subd. 12. Water quality standards. "Water quality standards" for Minnesota
4.7 surface waters are found in Minnesota Rules, chapters 7050 and 7052.
4.8 Sec. 5. [114D.20] IMPLEMENTATION; COORDINATION; GOALS;
4.9 POLICIES; AND PRIORITIES.
4.10 Subdivision 1. Coordination and cooperation. In implementing this chapter,
4.11 public agencies and private entities shall take into consideration the relevant provisions of
4.12 local and other applicable water management, conservation, land use, land management,
4.13 and development plans and programs. Public agencies with authority for local water
4.14 management, conservation, land use, land management, and development plans shall
4.15 take into consideration the manner in which their plans affect the implementation of
4.16 this chapter. Public agencies shall identify opportunities to participate and assist in the
4.17 successful implementation of this chapter, including the funding or technical assistance
4.18 needs, if any, that may be necessary. In implementing this chapter, public agencies shall
4.19 endeavor to engage the cooperation of organizations and individuals whose activities
4.20 affect the quality of surface waters, including point and nonpoint sources of pollution, and
4.21 who have authority and responsibility for water management, planning, and protection. To
4.22 the extent practicable, public agencies shall endeavor to enter into formal and informal
4.23 agreements and arrangements with federal agencies and departments to jointly utilize
4.24 staff and educational, technical, and financial resources to deliver programs or conduct
4.25 activities to achieve the intent of this chapter, including efforts under the federal Clean
4.26 Water Act and other federal farm and soil and water conservation programs. Nothing in
4.27 this chapter affects the application of silvicultural exemptions under any federal, state, or
4.28 local law or requires silvicultural practices more stringent than those recommended in
4.29 the timber harvesting and forest management guidelines adopted by the Minnesota Forest
4.30 Resources Council under section 89A.05.
4.31 Subd. 2. Goals for implementation. The following goals must guide the
4.32 implementation of this chapter:
4.33 (1) to identify impaired waters in accordance with federal TMDL requirements
4.34 within ten years after the effective date of this section and thereafter to ensure continuing
4.35 evaluation of surface waters for impairments;
5.1 (2) to submit TMDL's to the United States Environmental Protection Agency for all
5.2 impaired waters in a timely manner in accordance with federal TMDL requirements;
5.3 (3) to set a reasonable time for implementing restoration of each identified impaired
5.4 water;
5.5 (4) to provide assistance and incentives to prevent waters from becoming impaired
5.6 and to improve the quality of waters that are listed as impaired but do not have an
5.7 approved TMDL addressing the impairment;
5.8 (5) to promptly seek the delisting of waters from the impaired waters list when those
5.9 waters are shown to achieve the designated uses applicable to the waters; and
5.10 (6) to achieve compliance with federal Clean Water Act requirements in Minnesota.
5.11 Subd. 3. Implementation policies. The following policies must guide the
5.12 implementation of this chapter:
5.13 (1) develop regional and watershed TMDL's and TMDL implementation plans, and
5.14 TMDL's and TMDL implementation plans for multiple pollutants, where reasonable and
5.15 feasible;
5.16 (2) maximize use of available organizational, technical, and financial resources to
5.17 perform sampling, monitoring, and other activities to identify impaired waters, including
5.18 use of citizen monitoring and citizen monitoring data used by the Pollution Control
5.19 Agency in assessing water quality must meet the requirements in Appendix D of the
5.20 Volunteer Surface Water Monitoring Guide, Minnesota Pollution Control Agency (2003);
5.21 (3) maximize opportunities for restoration of impaired waters, by prioritizing and
5.22 targeting of available programmatic, financial, and technical resources and by providing
5.23 additional state resources to complement and leverage available resources;
5.24 (4) use existing regulatory authorities to achieve restoration for point and nonpoint
5.25 sources of pollution where applicable, and promote the development and use of effective
5.26 nonregulatory measures to address pollution sources for which regulations are not
5.27 applicable;
5.28 (5) use restoration methods that have a demonstrated effectiveness in reducing
5.29 impairments and provide the greatest long-term positive impact on water quality protection
5.30 and improvement and related conservation benefits while incorporating innovative
5.31 approaches on a case-by-case basis;
5.32 (6) identify for the legislature any innovative approaches that may strengthen or
5.33 complement existing programs;
5.34 (7) identify and encourage implementation of measures to prevent waters from
5.35 becoming impaired and to improve the quality of waters that are listed as impaired but
5.36 have no approved TMDL addressing the impairment using the best available data and
6.1 technology, and establish and report outcome-based performance measures that monitor
6.2 the progress and effectiveness of protection and restoration measures; and
6.3 (8) monitor and enforce cost-sharing contracts and impose monetary damages in an
6.4 amount up to 150 percent of the financial assistance received for failure to comply.
6.5 Subd. 4. Priorities for identifying impaired waters. The Pollution Control
6.6 Agency, in accordance with federal TMDL requirements, shall set priorities for identifying
6.7 impaired waters, giving consideration to:
6.8 (1) waters where impairments would pose the greatest potential risk to human or
6.9 aquatic health; and
6.10 (2) waters where data developed through public agency or citizen monitoring or
6.11 other means, provides scientific evidence that an impaired condition exists.
6.12 Subd. 5. Priorities for preparation of TMDL's. The Clean Water Council shall
6.13 recommend priorities for scheduling and preparing TMDL's and TMDL implementation
6.14 plans, taking into account the severity of the impairment, the designated uses of those
6.15 waters, and other applicable federal TMDL requirements. In recommending priorities, the
6.16 council shall also give consideration to waters and watersheds:
6.17 (1) with impairments that pose the greatest potential risk to human health;
6.18 (2) with impairments that pose the greatest potential risk to threatened or endangered
6.19 species;
6.20 (3) with impairments that pose the greatest potential risk to aquatic health;
6.21 (4) where other public agencies and participating organizations and individuals,
6.22 especially local, basinwide, watershed, or regional agencies or organizations, have
6.23 demonstrated readiness to assist in carrying out the responsibilities, including availability
6.24 and organization of human, technical, and financial resources necessary to undertake
6.25 the work; and
6.26 (5) where there is demonstrated coordination and cooperation among cities,
6.27 counties, watershed districts, and soil and water conservation districts in planning and
6.28 implementation of activities that will assist in carrying out the responsibilities.
6.29 Subd. 6. Priorities for restoration of impaired waters. In implementing
6.30 restoration of impaired waters, in addition to the priority considerations in subdivision 5,
6.31 the Clean Water Council shall give priority in its recommendations for restoration funding
6.32 from the clean water legacy account to restoration projects that:
6.33 (1) coordinate with and utilize existing local authorities and infrastructure for
6.34 implementation;
6.35 (2) can be implemented in whole or in part by providing support for existing or
6.36 ongoing restoration efforts;
7.1 (3) most effectively leverage other sources of restoration funding, including federal,
7.2 state, local, and private sources of funds;
7.3 (4) show a high potential for early restoration and delisting based upon scientific
7.4 data developed through public agency or citizen monitoring or other means; and
7.5 (5) show a high potential for long-term water quality and related conservation
7.6 benefits.
7.7 Subd. 7. Priorities for funding prevention actions. The Clean Water Council
7.8 shall apply the priorities applicable under subdivision 6, as far as practicable, when
7.9 recommending priorities for funding actions to prevent waters from becoming impaired
7.10 and to improve the quality of waters that are listed as impaired but do not have an
7.11 approved TMDL.
7.12 Sec. 6. [114D.25] ADMINISTRATION; POLLUTION CONTROL AGENCY.
7.13 Subdivision 1. General duties and authorities. (a) The Pollution Control Agency,
7.14 in accordance with federal TMDL requirements, shall:
7.15 (1) identify impaired waters and propose a list of the waters for review and approval
7.16 by the United States Environmental Protection Agency;
7.17 (2) develop and approve TMDL's for listed impaired waters and submit the approved
7.18 TMDL's to the United State Environmental Protection Agency for final approval; and
7.19 (3) propose to delist waters from the Environmental Protection Agency impaired
7.20 waters list.
7.21 (b) A TMDL must include a statement of the facts and scientific data supporting the
7.22 TMDL and a list of potential implementation options, including:
7.23 (1) a range of estimates of the cost of implementation of the TMDL; and
7.24 (2) for point sources, the individual wasteload data and the estimated cost of
7.25 compliance addressed by the TMDL.
7.26 (c) The implementation information need not be sent to the United States
7.27 Environmental Protection Agency for review and approval.
7.28 Subd. 2. Administrative procedures for TMDL approval. The approval of a
7.29 TMDL by the Pollution Control Agency is a final decision of the agency for purposes of
7.30 section 115.05, and is subject to the contested case procedures of sections 14.57 to 14.62 in
7.31 accordance with agency procedural rules. The agency shall not submit an approved TMDL
7.32 to the United States Environmental Protection Agency until the time for commencing
7.33 judicial review has run or the judicial review process has been completed. A TMDL is not
7.34 subject to the rulemaking requirements of chapter 14, including section 14.386.
8.1 Subd. 3. TMDL submittal requirement. Before submitting a TMDL to the United
8.2 States Environmental Protection Agency, the Pollution Control Agency shall comply with
8.3 the notice and procedure requirements of this section. If a contested case proceeding is not
8.4 required for a proposed TMDL, the agency may submit the TMDL to the United States
8.5 Environmental Protection Agency no earlier than 30 days after the notice required in
8.6 subdivision 4. If a contested case proceeding is required for a TMDL, the TMDL may be
8.7 submitted to the United States Environmental Protection Agency after the contested case
8.8 proceeding and appeal process is completed.
8.9 Subd. 4. TMDL notice; contents. The Pollution Control Agency shall give notice
8.10 of its intention to submit a TMDL to the United States Environmental Protection Agency.
8.11 The notice must be given by publication in the State Register and by United States mail to
8.12 persons who have registered their names with the agency. The notice must include either a
8.13 copy of the proposed TMDL or an easily readable and understandable description of its
8.14 nature and effect and an announcement of how free access to the proposed TMDL can
8.15 be obtained. In addition, the agency shall make reasonable efforts to notify persons or
8.16 classes of persons who may be significantly affected by the TMDL by giving notice of
8.17 its intention in newsletters, newspapers, or other publications, or through other means of
8.18 communication. The notice must include a statement informing the public:
8.19 (1) that the public has 30 days in which to submit comment in support of or in
8.20 opposition to the proposed TMDL and that comment is encouraged;
8.21 (2) that each comment should identify the portion of the proposed TMDL addressed,
8.22 the reason for the comment, and any change proposed;
8.23 (3) of the manner in which persons must request a contested case proceeding on
8.24 the proposed TMDL;
8.25 (4) that the proposed TMDL may be modified if the modifications are supported
8.26 by the data and facts; and
8.27 (5) the date on which the 30-day comment period ends.
8.28 Subd. 5. Third-party TMDL development. The Pollution Control Agency may
8.29 enter into agreements with any qualified public agency setting forth the terms and
8.30 conditions under which that agency is authorized to develop a third-party TMDL. In
8.31 determining whether the public agency is qualified to develop a third-party TMDL, the
8.32 Pollution Control Agency shall consider the technical and administrative qualifications of
8.33 the public agency, cost, and shall avoid any potential organizational conflict of interest,
8.34 as defined in section 16C.02, subdivision 10a, of the public agency with respect to the
8.35 development of the third-party TMDL. A third-party TMDL is subject to modification
8.36 and approval by the Pollution Control Agency, and must be approved by the Pollution
9.1 Control Agency before it is submitted to the United States Environmental Protection
9.2 Agency. The Pollution Control Agency shall only consider authorizing the development
9.3 of third-party TMDL's consistent with the goals, policies, and priorities determined
9.4 under section 114D.20.
9.5 Sec. 7. [114D.30] CLEAN WATER COUNCIL.
9.6 Subdivision 1. Creation; duties. A Clean Water Council is created to advise on the
9.7 administration and implementation of this chapter, and foster coordination and cooperation
9.8 as described in section 114D.20, subdivision 1. The council may also advise on the
9.9 development of appropriate processes for expert scientific review as described in section
9.10 114D.35, subdivision 2. The Pollution Control Agency shall provide administrative
9.11 support for the council with the support of other member agencies. The members of the
9.12 council shall elect a chair from the nonagency members of the council.
9.13 Subd. 2. Membership; appointment. The commissioners of natural resources,
9.14 agriculture, and the Pollution Control Agency, and the executive director of the Board
9.15 of Water and Soil Resources shall appoint one person from their respective agency to
9.16 serve as a member of the council. Agency members serve as nonvoting members of the
9.17 council. Seventeen additional nonagency members of the council shall be appointed by
9.18 the governor as follows:
9.19 (1) two members representing statewide farm organizations;
9.20 (2) one member representing business organizations;
9.21 (3) one member representing environmental organizations;
9.22 (4) one member representing soil and water conservation districts;
9.23 (5) one member representing watershed districts;
9.24 (6) one member representing nonprofit organizations focused on improvement of
9.25 Minnesota lakes or streams;
9.26 (7) two members representing organizations of county governments, one member
9.27 representing the interests of rural counties and one member representing the interests of
9.28 counties in the seven-county metropolitan area;
9.29 (8) two members representing organizations of city governments;
9.30 (9) one member representing the Metropolitan Council established under section
9.31 473.123;
9.32 (10) one township officer;
9.33 (11) one member representing the interests of tribal governments;
9.34 (12) one member representing statewide hunting organizations;
10.1 (13) one member representing the University of Minnesota or a Minnesota state
10.2 university; and
10.3 (14) one member representing statewide fishing organizations.
10.4 Members appointed under clauses (1) to (14) must not be registered lobbyists. In making
10.5 appointments, the governor must attempt to provide for geographic balance. The members
10.6 of the council appointed by the governor are subject to the advice and consent of the senate.
10.7 Subd. 3. Conflict of interest. A Clean Water Council member may not participate
10.8 in or vote on a decision of the council relating to an organization in which the member has
10.9 either a direct or indirect personal financial interest. While serving on the Clean Water
10.10 Council, a member shall avoid any potential conflict of interest.
10.11 Subd. 4. Terms; compensation; removal. The initial terms of members
10.12 representing state agencies and the Metropolitan Council expire on the first Monday in
10.13 January 2007. Thereafter, the terms of members representing the state agencies and the
10.14 Metropolitan Council are four years and are coterminous with the governor. The terms
10.15 of other members of the council shall be as provided in section 15.059, subdivision 2.
10.16 Members may serve until their successors are appointed and qualify. Compensation and
10.17 removal of council members is as provided in section 15.059, subdivisions 3 and 4. A
10.18 vacancy on the council may be filled by the appointing authority provided in subdivision 1
10.19 for the remainder of the unexpired term.
10.20 Subd. 5. Implementation plan. The Clean Water Council shall recommend a
10.21 plan for implementation of this chapter. The recommended plan shall address general
10.22 procedures and time frames for implementing this chapter, and shall include a more
10.23 specific implementation work plan for the next fiscal biennium and a framework for setting
10.24 priorities to address impaired waters consistent with section 114D.20, subdivisions 2 to 7.
10.25 The council shall issue the first recommended plan under this subdivision by December 1,
10.26 2005, and shall issue a revised plan by December 1 of each even-numbered year thereafter.
10.27 Subd. 6. Recommendations on appropriation of funds. The Clean Water Council
10.28 shall recommend to the governor the manner in which money from the clean water legacy
10.29 account should be appropriated for the purposes identified in section 114D.45, subdivision
10.30 3. The council's recommendations must be consistent with the purposes, policies, goals,
10.31 and priorities in sections 114D.05 to 114D.35, and shall allocate adequate support and
10.32 resources to identify impaired waters, develop TMDL's, implement restoration of impaired
10.33 waters, and provide assistance and incentives to prevent waters from becoming impaired
10.34 and improve the quality of waters which are listed as impaired but have no approved
10.35 TMDL. The council must recommend methods of ensuring that awards of grants, loans, or
10.36 other funds from the clean water legacy account specify the outcomes to be achieved as a
11.1 result of the funding and specify standards to hold the recipient accountable for achieving
11.2 the desired outcomes. Expenditures from the account must be appropriated by law.
11.3 Subd. 7. Biennial report to legislature. By December 1 of each even-numbered
11.4 year, the council shall submit a report to the legislature on the activities for which money
11.5 has been or will be spent for the current biennium, the activities for which money is
11.6 recommended to be spent in the next biennium, and the impact on economic development
11.7 of the implementation of the impaired waters program. The report due on December
11.8 1, 2014, must include an evaluation of the progress made through June 30, 2014, in
11.9 implementing this chapter, the need for funding of future implementation of those
11.10 sections, and recommendations for the sources of funding.
11.11 Sec. 8. [114D.35] PUBLIC AND STAKEHOLDER PARTICIPATION;
11.12 SCIENTIFIC REVIEW; EDUCATION.
11.13 Subdivision 1. Public and stakeholder participation. Public agencies and private
11.14 entities involved in the implementation of this chapter shall encourage participation by
11.15 the public and stakeholders, including local citizens, landowners and managers, and
11.16 public and private organizations, in the identification of impaired waters, in developing
11.17 TMDL's, and in planning, priority setting, and implementing restoration of impaired
11.18 waters. In particular, the Pollution Control Agency shall make reasonable efforts to
11.19 provide timely information to the public and to stakeholders about impaired waters that
11.20 have been identified by the agency. The agency shall seek broad and early public and
11.21 stakeholder participation in scoping the activities necessary to develop a TMDL, including
11.22 the scientific models, methods, and approaches to be used in TMDL development, and to
11.23 implement restoration pursuant to section 114D.15, subdivision 7.
11.24 Subd. 2. Expert scientific advice. The Clean Water Council and public agencies
11.25 and private entities shall make use of available public and private expertise from
11.26 educational, research, and technical organizations, including the University of Minnesota
11.27 and other higher education institutions, to provide appropriate independent expert advice
11.28 on models, methods, and approaches used in identifying impaired waters, developing
11.29 TMDL's, and implementing prevention and restoration.
11.30 Subd. 3. Education. The Clean Water Council shall develop strategies for
11.31 informing, educating, and encouraging the participation of citizens, stakeholders,
11.32 and others regarding the identification of impaired waters, development of TMDL's,
11.33 development of TMDL implementation plans, and implementation of restoration for
11.34 impaired waters. Public agencies shall be responsible for implementing the strategies.
12.1 Sec. 9. [114D.45] CLEAN WATER LEGACY ACCOUNT.
12.2 Subdivision 1. Creation. The clean water legacy account is created as an account
12.3 in the environmental fund. Money in the account must be made available for the
12.4 implementation of this chapter and sections 446A.073, 446A.074, and 446A.075, without
12.5 supplanting or taking the place of any other funds which are currently available or may
12.6 become available from any other source, whether federal, state, local, or private, for
12.7 implementation of those sections.
12.8 Subd. 2. Sources of revenue. The following revenues must be deposited in the
12.9 clean water legacy account:
12.10 (1) money transferred to the account; and
12.11 (2) interest accrued on the account.
12.12 Subd. 3. Purposes. Subject to appropriation by the legislature, the clean water
12.13 legacy account may be spent for the following purposes:
12.14 (1) to provide grants, loans, and technical assistance to public agencies and others
12.15 who are participating in the process of identifying impaired waters, developing TMDL's,
12.16 implementing restoration plans for impaired waters, and monitoring the effectiveness
12.17 of restoration;
12.18 (2) to support measures to prevent waters from becoming impaired and to improve
12.19 the quality of waters that are listed as impaired but do not have an approved TMDL
12.20 addressing the impairment;
12.21 (3) to provide grants and loans for wastewater and storm water treatment projects
12.22 through the Public Facilities Authority;
12.23 (4) to support the efforts of public agencies associated with individual sewage
12.24 treatment systems and financial assistance for upgrading and replacing the systems; and
12.25 (5) to provide funds to state agencies to carry out their responsibilities under this
12.26 chapter.
12.27 Sec. 10. Minnesota Statutes 2004, section 115.03, is amended by adding a subdivision
12.28 to read:
12.29 Subd. 10. Nutrient loading offset. (a) Prior to the completion of a total maximum
12.30 daily load for an impaired water, the Pollution Control Agency may issue a permit for a
12.31 new discharger or an expanding discharger if it results in decreased loading to an impaired
12.32 water. Where a new discharger or an expanding existing discharger cannot effectively
12.33 implement zero discharge options, the agency may issue a permit if the increased loading
12.34 is offset by reductions from other sources of loading to the impaired water, so that there is
13.1 a net decrease in the pollutant loading of concern. The term "new discharger" is as defined
13.2 in Code of Federal Regulations, title 40, section 122.2.
13.3 (b) The legislature intends this subdivision to confirm and clarify the authority of the
13.4 pollution control agency to issue the authorized permits under prior law. The subdivision
13.5 must not be construed as a legislative interpretation within the meaning of Minnesota
13.6 Statutes, section 645.16, clause (8), or otherwise as the legislature's intent that the agency
13.7 did not have authority to issue such a permit under prior law.
13.8 Sec. 11. Minnesota Statutes 2004, section 446A.051, is amended to read:
13.9 446A.051 PROJECT FINANCIAL ASSISTANCE.
13.10 The authority shall assist eligible governmental units in determining what grants or
13.11 loans under sections 446A.06, and 446A.07, 446A.072, 446A.073, 446A.074, 446A.075,
13.12 and 446A.081 to apply for to finance projects and the manner in which the governmental
13.13 unit will pay for its portion of the project cost. If a project is eligible for a grant under
13.14 section 446A.073, 446A.074, or 446A.075, the total grant shall not exceed the greater
13.15 of the maximum amount from a single program or the amount the project could receive
13.16 under section 446A.072. The authority shall review the proposed financing for each
13.17 project certified by the agency to ascertain whether or not: (1) total financing of a project
13.18 is assured; and (2) the governmental unit's financial plan to pay for its portion of the
13.19 project cost is feasible.
13.20 Sec. 12. Minnesota Statutes 2005 Supplement, section 446A.073, subdivision 1,
13.21 is amended to read:
13.22 Subdivision 1. Program established. When money is appropriated for grants under
13.23 this program, the authority must make grants to municipalities to cover up to one-half
13.24 the cost of wastewater treatment or stormwater projects made necessary by wasteload
13.25 reductions under total maximum daily load plans required by section 303(d) of the federal
13.26 Clean Water Act, United States Code, title 33, section 1313(d).
13.27 Sec. 13. Minnesota Statutes 2005 Supplement, section 446A.073, subdivision 2,
13.28 is amended to read:
13.29 Subd. 2. Grant application. Application for a grant must be made to the authority
13.30 on forms prescribed by the authority for the total maximum daily load grant program, with
13.31 additional information as required by the authority, including a project schedule and cost
13.32 estimate for the work necessary to comply with the point source wasteload allocation. In
13.33 accordance with section 116.182, The Pollution Control Agency shall:
14.1 (1) in accordance with section 116.182, calculate the essential project component
14.2 percentage, which must be multiplied by the total project cost to determine the eligible
14.3 project cost; and
14.4 (2) review and certify approved projects to the authority those projects that have
14.5 plans and specifications approved under section 115.03, subdivision 1, paragraph (f).
14.6 Sec. 14. [446A.074] CLEAN WATER LEGACY PHOSPHORUS REDUCTION
14.7 GRANTS.
14.8 Subdivision 1. Creation of account. A clean water legacy capital improvement
14.9 account is created in the bond proceeds fund. Money in the account may only be used
14.10 for grants for eligible capital costs as provided in this section. Money in the clean
14.11 water legacy capital improvement fund, including interest earned, is appropriated to the
14.12 authority for the purposes of this section.
14.13 Subd. 2. Grants. The authority shall award grants from the clean water legacy
14.14 capital improvement account to governmental units for the capital costs of wastewater
14.15 treatment facility projects or a portion thereof that will reduce the discharge of total
14.16 phosphorus from the facility to one milligram per liter or less. A project is eligible for a
14.17 grant if it meets the following requirements:
14.18 (1) the applicable phosphorus discharge limit is incorporated in a permit issued by
14.19 the agency for the wastewater treatment facility on or after March 28, 2000, the grantee
14.20 agrees to comply with the applicable limit as a condition of receiving the grant, or the
14.21 grantee made improvements to a wastewater treatment facility on or after March 28, 2000,
14.22 that include infrastructure to reduce the discharge of total phosphorus to one milligram
14.23 per liter or less;
14.24 (2) the governmental unit has submitted a facilities plan for the project to the agency
14.25 and a grant application to the authority on a form prescribed by the authority; and
14.26 (3) the agency has approved the facilities plan, and certified the eligible costs for the
14.27 project to the authority.
14.28 Subd. 3. Eligible capital costs. Eligible capital costs for phosphorus reduction
14.29 grants under subdivision 4, paragraph (a), include engineering and inspection costs
14.30 and the as-bid construction costs for phosphorus treatment. Eligible capital costs for
14.31 phosphorus reduction grants under subdivision 4, paragraph (b), include the final, incurred
14.32 construction, engineering, and inspection costs for phosphorus treatment.
14.33 Subd. 4. Grant amounts and priorities. (a) Priority must be given to projects that
14.34 start construction on or after July 1, 2006. If a facility's plan for a project is approved
14.35 by the agency before July 1, 2010, the amount of the grant is 75 percent of the eligible
15.1 capital cost of the project. If a facility's plan for a project is approved by the agency on
15.2 or after July 1, 2010, the amount of the grant is 50 percent of the eligible capital cost of
15.3 the project. Priority in awarding grants under this paragraph must be based on the date of
15.4 approval of the facility's plan for the project.
15.5 (b) Projects that meet the eligibility requirements in subdivision 2 and have started
15.6 construction before July 1, 2006, may be eligible for grants to reimburse up to 75 percent
15.7 of the eligible capital cost of the project, less any amounts previously received in grants
15.8 from other sources, provided that reimbursement is an eligible use of funds. Application
15.9 for a grant under this paragraph must be submitted to the authority no later than June 30,
15.10 2008. Priority for award of grants under this paragraph must be based on the date of
15.11 agency approval of the facility plan.
15.12 (c) In each fiscal year that money is available for grants, the authority shall first
15.13 award grants under paragraph (a) to projects that met the eligibility requirements of
15.14 subdivision 2 by May 1 of that year. The authority shall use any remaining money
15.15 available that year to award grants under paragraph (b). Grants that have been approved
15.16 but not awarded in a previous fiscal year carry over and must be awarded in subsequent
15.17 fiscal years in accordance with the priorities in this paragraph.
15.18 (d) Disbursements of grants under this section by the authority to recipients must
15.19 be made for eligible project costs as incurred by the recipients, and must be made by the
15.20 authority in accordance with the project financing agreement and applicable state law.
15.21 Subd. 5. Fees. The authority may charge the grant recipient a fee for its
15.22 administrative costs not to exceed one-half of one percent of the grant amount, to be
15.23 paid upon execution of the grant agreement.
15.24 Sec. 15. [446A.075] SMALL COMMUNITY WASTEWATER TREATMENT
15.25 PROGRAM.
15.26 Subdivision 1. Creation of account. A small community wastewater treatment
15.27 account is created in the special revenue fund. The authority shall make loans and grants
15.28 from the account as provided in this section. Money in the fund is annually appropriated
15.29 to the authority and does not lapse. The account shall be credited with all loan repayments
15.30 and investment income from the account and servicing fees assessed under section
15.31 446A.04, subdivision 5. The authority shall manage and administer the small community
15.32 wastewater treatment account and for these purposes, may exercise all powers provided
15.33 in this chapter.
15.34 Subd. 2. Loans and grants. (a) The authority shall award loans as provided in
15.35 paragraph (b) and grants as provided in paragraphs (c) and (d) to governmental units from
16.1 the small community wastewater treatment account for projects to replace noncomplying
16.2 individual sewage treatment systems with a community wastewater treatment system or
16.3 systems meeting the requirements of section 115.55. A governmental unit receiving a
16.4 loan or loan and grant from the account shall own the individual wastewater treatment
16.5 systems or community wastewater treatment systems built under the program and shall be
16.6 responsible, either directly or through a contract with a private vendor, for all inspections,
16.7 maintenance, and repairs necessary to ensure proper operation of the systems.
16.8 (b) Loans may be awarded for up to 100 percent of eligible project costs as described
16.9 in this section.
16.10 (c) When the area to be served by a project has a median household income below
16.11 the state average median household income, the governmental unit may receive 50
16.12 percent of the funding provided under this section in the form of a grant. An applicant
16.13 may submit income survey data collected by an independent party if it believes the most
16.14 recent United States census does not accurately reflect the median household income
16.15 of the area to be served.
16.16 (d) If requested, and if it is an eligible use of funds, a governmental unit receiving
16.17 funding under this section may receive a grant equal to ten percent of its first year's
16.18 award, up to a maximum of $30,000, to contract for technical assistance services from
16.19 the University of Minnesota Extension Service to develop the technical, managerial, and
16.20 financial capacity necessary to build, operate, and maintain the systems.
16.21 Subd. 3. Project priority list. Governmental units seeking loans or loans and grants
16.22 from the small community wastewater treatment program shall first submit a project
16.23 proposal to the agency on a form prescribed by the agency. A project proposal shall
16.24 include the compliance status for all individual sewage treatment systems in the project
16.25 area. The agency shall rank project proposals on its project priority list used for the water
16.26 pollution control revolving fund under section 446A.07.
16.27 Subd. 4. Applications. Governmental units with projects on the project priority
16.28 list shall submit applications to the authority on forms prescribed by the authority. The
16.29 application shall include:
16.30 (1) a list of the individual sewage treatment systems proposed to be replaced over a
16.31 period of up to three years;
16.32 (2) a project schedule and cost estimate for each year of the project;
16.33 (3) a financing plan for repayment of the loan; and
16.34 (4) a management plan providing for the inspection, maintenance, and repairs
16.35 necessary to ensure proper operation of the systems.
17.1 Subd. 5. Awards. The authority shall award loans or loans and grants as provided in
17.2 subdivision 2 to governmental units with approved applications based on their ranking
17.3 on the agency's project priority list. The total amount awarded shall be based on the
17.4 estimated project costs for the portion of the project expected to be completed within
17.5 one year, up to an annual maximum of $500,000. For projects expected to take more
17.6 than one year to complete, the authority may make a multiyear commitment for a period
17.7 not to exceed three years, contingent on the future availability of funds. Each year of a
17.8 multiyear commitment must be funded by a separate loan or loan and grant agreement
17.9 meeting the terms and conditions in subdivision 6. A governmental unit receiving a loan
17.10 or loan and grant under a multiyear commitment shall have priority for additional loan and
17.11 grant funds in subsequent years.
17.12 Subd. 6. Loan terms and conditions. Loans from the small community wastewater
17.13 treatment account shall comply with the following terms and conditions:
17.14 (1) principal and interest payments must begin no later than two years after the
17.15 loan is awarded;
17.16 (2) loans shall carry an interest rate of one percent;
17.17 (3) loans shall be fully amortized within ten years of the first scheduled payment
17.18 or, if the loan amount exceeds $10,000 per household, shall be fully amortized within 20
17.19 years but not to exceed the expected design life of the system;
17.20 (4) a governmental unit receiving a loan must establish a dedicated source or sources
17.21 of revenues for repayment of the loan and must issue a general obligation note to the
17.22 authority for the full amount of the loan; and
17.23 (5) each property owner voluntarily seeking assistance for repair or replacement
17.24 of an individual treatment system under this program must provide an easement to the
17.25 governmental unit to allow access to the system for management and repairs.
17.26 Subd. 7. Special assessment deferral. (a) A governmental unit receiving a loan
17.27 under this section that levies special assessments to repay the loan may defer payment of
17.28 the assessments under the provisions of sections 435.193 to 435.195.
17.29 (b) A governmental unit that defers payment of special assessments for one or more
17.30 properties under paragraph (a) may request deferral of that portion of the debt service on
17.31 its loan, and the authority shall accept appropriate amendments to the general obligation
17.32 note of the governmental unit. If special assessment payments are later received from
17.33 properties that received a deferral, the funds received shall be paid to the authority with
17.34 the next scheduled loan payment.
18.1 Subd. 8. Eligible costs. Eligible costs for small community wastewater treatment
18.2 loans and grants shall include the costs of technical assistance as provided in subdivision
18.3 2, paragraph (d), design, construction, related legal fees, and land acquisition.
18.4 Subd. 9. Disbursements. Loan and grant disbursements by the authority under this
18.5 section must be made for eligible project costs as incurred by the recipients, and must be
18.6 made in accordance with the project loan or grant and loan agreement and applicable
18.7 state law.
18.8 Subd. 10. Audits. A governmental unit receiving a loan under this section must
18.9 annually provide to the authority for the term of the loan a copy of its annual independent
18.10 audit or, if the governmental unit is not required to prepare an independent audit, a copy of
18.11 the annual financial reporting form it provides to the state auditor.
18.12 Sec. 16. PHOSPHORUS RULE; REPORT.
18.13 (a) Notwithstanding any law to the contrary, a provision of a Minnesota Pollution
18.14 Control Agency rule establishing new or changed limits on phosphorus discharges from a
18.15 new or existing wastewater facility must not take effect until July 1, 2007.
18.16 (b) The Minnesota Pollution Control Agency must report to the legislature by
18.17 February 1, 2007, on a proposed or adopted rule changing limits on phosphorus discharges.
18.18 The report must address scientific justification for the new rule and the impact the proposed
18.19 or adopted rule will have on needed funding to implement the Clean Water Legacy Act.
18.20 Sec. 17. EFFECTIVE DATE.
18.21 Sections 1 to 16 are effective the day following final enactment.
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