Public Notice of EPA’s Additions to Minnesota’s 2020 Impaired Waters List

(Update September 1, 2021) 

This notice announces EPA solicitation of public comment on its identification of three water quality limited segments (WQLSs) impaired due to sulfate for inclusion on Minnesota’s 2020 List of Impaired Waters under Section 303(d) of the Clean Water Act (CWA). Comments received by EPA in response to the 60-day public comment period for EPA’s previous additions to Minnesota’s 2020 List of Impaired Waters (4/29/21 to 6/30/21) supported the identification of three additional waters:  Perch Lake (WID 69-0688-00), Sturgeon Lake (WID 25-0017-01) and a St. Louis River estuary segment (WID 69-1291-04) all of which meet EPA’s screening analysis described in Section III of its April 27, 2021, Decision Document.  Accordingly, EPA is adding these WQLSs to the Minnesota 2020 List of Impaired Waters. Consistent with EPA’s  April 27, 2021 Decision Document, EPA is initiating a 30-day period for public review and comment on the addition of these three WQLSs. Summary sulfate water quality data for these three WQLSs are included in Appendix 2a of EPA’s Decision Document Regarding Sulfate Impaired Waters EPA is Adding to the Minnesota 2020 CWA Section 303(d) List (pdf) (67.22 KB, 8/31/2021) .

The 30-day Public Comment Period for these three additions starts September 1, 2021 and ends October 1, 2021. Commenters who previously submitted comments during EPA’s first public comment period (4/29/21 to 6/30/21) regarding EPA’s previous additions to the Minnesota 2020 List of Impaired Waters need not resubmit comments already provided to EPA. After considering all public comments received during EPA’s first and second public comment period, and making any revisions as appropriate, EPA will transmit the final list to Minnesota.

HOW TO PROVIDE COMMENTS:

EPA requests that any written comments be sent by email to Paul Proto ([email protected]) on or before October 1, 2021.

SUMMARY:

This notice announces EPA solicitation of public comment on its identification of 30 water quality limited segments (WQLSs) impaired for sulfate (Appendix 2 of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List) for inclusion on Minnesota’s 2020 List of Impaired Waters under Section 303(d) of the Clean Water Act (CWA).  The Public Comment Period started April 29, 2021.  The original 30-day Public Comment Period was set to conclude May 31, 2021.  EPA is extending the Public Comment Period an additional 30 days, concluding on June 30, 2021.  After considering public comments and making appropriate revisions, EPA will transmit the final list to Minnesota.

NOTE:  EPA is in the process of evaluating extensive additional data and information received through consultation with Tribal Governments and is taking no action on other potential wild rice waters and sulfate impairments at this time.  Supporting information, including information received to date, is included in the Appendices of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List.  EPA also recognizes that there may be other information in the possession of stakeholders relevant to identifying those waters subject to the "waters used for production of wild rice" beneficial use and associated water quality data.  EPA will complete our analysis of the input received by Tribal Governments, along with any additional information received during this public notice and comment period from interested stakeholders and members of the public, and will issue a supplemental decision addressing any additional sulfate-impaired wild rice waters, as appropriate.  If EPA identifies additional waters used for the production of wild rice for which there are sulfate impaired segments, EPA will provide an additional 30-day period for public review and comment on those WQLSs.  EPA will provide the exact schedule and deadlines for receiving public comment at the time EPA publishes our notice, as appropriate.

BACKGROUND:

Section 303(d)(2) of the CWA requires each state to identify waters for which existing required pollution controls are insufficient to meet state water quality standards.  States are required to develop a list of impaired water bodies requiring TMDL calculations [the Section 303(d) list] and submit the list to EPA for review and approval or disapproval [see 40 CFR Section 130.7(d)(1)].  If EPA disapproves any portion of the state’s Section 303(d) list, EPA must identify the impaired waters that should be listed no later than 30 days after the date of such disapproval.  EPA then must "promptly issue a public notice seeking comment" on those additional WQLSs.  After considering public comments and making appropriate revisions, EPA will transmit the final list to the state [see 40 CFR Section 130.7(d)(2)].

Minnesota submitted its 2020 Section 303(d) list to EPA on February 25, 2021.  EPA reviewed the State’s submission including the comments received by Minnesota and the responses to those comments.  EPA noted a comment received during Minnesota’s public comment solicitation from Minnesota Tribes providing data and analysis on eight waters as examples of wild rice waters impaired for sulfate.  On March 9, 2021, EPA requested clarification on whether MPCA considered these eight waters, identified in this comment, as waters used for the production of wild rice and further explanation of how MPCA evaluated data for those eight waters.  MPCA’s response affirmed that the eight waters referenced were “waters used for the production of wild rice waters” (although not appearing on the list of 24 waters in the State’s rules) and provided MPCA’s analysis in concluding that seven of these eight waters are impaired for sulfate.[1]  The letter went on to say that:

[T]he MPCA concluded that the eight waters submitted should be considered as “waters used for production of wild rice” for the purpose of evaluating impairment status, because: (1) the eight waters presented in the comments received during the comment period for Minnesota’s 2020 Impaired Waters List were on the proposed list in the rulemaking; and (2) based on the fact that the proposed list in the rulemaking could likely be considered the most narrow list of waters that demonstrate the wild rice beneficial use.

Additionally, Minnesota concluded that state law bars MPCA from assessing or listing waters against Minnesota’s federally-approved 10 mg/L standard applicable to “waters used for production of wild rice during periods when the rice may be susceptible to damage by high sulfate levels.”[2]

On March 26, 2021, EPA partially approved and partially disapproved Minnesota’s 2020 Section 303(d) list submittal.  Specifically, EPA approved Minnesota’s listing of certain WQLSs and associated pollutants (Appendix 1 of EPA's Decision Document for the Partial Approval and Partial Disapproval of Minnesota's 2020 CWA Section 303(d) List).  EPA disapproved Minnesota’s decision not to identify certain WQLSs for sulfate impairment because the existing and readily available data and information for those WQLSs indicate impairments for the numeric water quality criterion for sulfate.[3]  EPA stated that Minnesota's decision to exclude these waters was inconsistent with Section 303(d) of the CWA and implementing regulations.  MPCA's decision not to include these WQLSs on its list was based on the State’s understanding that it is prohibited from listing these waters under Minnesota law.  Therefore, Minnesota’s submission did not demonstrate that it satisfied its obligation to assemble and evaluate all existing and readily available water quality-related data and information.  EPA believes that the existing and readily available data and information indicate sulfate impairments of the WQLSs identified in Appendix 2 of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List and that these WQLSs meet the federal requirements for listing under Section 303(d). 

EPA consulted with Tribal Governments regarding EPA’s action to add waters to Minnesota’s Section 303(d) list.  On April 9, 2021, EPA hosted a consultation call with ten federally-recognized Tribes from Minnesota and representatives from two tribal organizations.  Through the consultation process, EPA received extensive input from Tribes recommending waters the Tribes considered to be subject to the production of wild rice beneficial use and that might also be impaired due to exceedances of the sulfate criterion.

EPA is taking action to list 30 waters used for the production of wild rice that are impaired for sulfate on Minnesota’s 2020 Section 303(d) list, and EPA continues to review and analyze Tribal input on other waters and will analyze any input received during this public comment period.  Accordingly, at this time, EPA is taking no action on other potential wild rice waters or sulfate impairments.  Information received to date, with relevant notes, is found in the Appendices of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List. 

Following the close of the 60-day public comment period, EPA will consider all the input received, make any appropriate revisions, and transmit any final additions to Minnesota.  EPA will respond to any public comments received during the public comment period.  EPA will respond separately to input received from Tribes through tribal consultation directly to the Tribes.

[1] MPCA, Responses to the 2020 Draft Impaired Waters List, Public Notice Comments (February 25, 2021), p. 2 of 12 [responses to public comments 5, 6, 8, 10, 11, 13, 15, and 19]; Letter from Tera L. Fong, EPA, to Katrina Kessler, MPCA, March 9, 2021; Letter from Katrina Kessler, MPCA, to Tera L. Fong, EPA, March 15, 2021. 

[2] Minnesota Rule 7050.0224, subparts 1 and 2.

[3] Minnesota Rule 7050.0224, subparts 1 and 2.

 

HOW TO PROVIDE COMMENTS:

EPA requests that any written comments be sent by email to Paul Proto ([email protected]) on or before June 30, 2021.

Most of the documents related to EPA’s Action on the Minnesota’s 2020 Section 303(d) list of impaired waters can be accessed through the links below.

For access to the Appendices 3 — 5 of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List documents, interested parties should contact Paul Proto ([email protected]) and EPA will provide a link to an FTP website where the Appendices 3 — 5 of EPA's Decision Document Regarding the Sulfate Impaired Waters EPA is Adding to the Minnesota's 2020 CWA Section 303(d) List documents can be downloaded.

The public is invited to provide comment on the details included in the Decision Documents and to present any additional information which may be relevant to this topic and EPA’s action.

Commenters interested in sharing comments about individual waters should include the following information in their comment to EPA:

  • Clear identification of the assessment unit identification (or AUID), for the stream segment or lake to be added or considered by EPA;
  • Explanation of and evidence for whether waters are or are not “waters used for the production of wild rice during periods when the rice may be susceptible to damage by high sulfate levels” as that designation is used in Minnesota’s existing water quality standards at Minn. R. 7050.0224;
  • What water quality data supports that specific waters are or are not in exceedance of the 10 mg/L sulfate criteria (e.g., Minnesota data from its Surface Water Data portal or other data sources); and
  • Any documentation of quality assurance/quality control for sulfate data provided to EPA.

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