OAH 12-2901-20137-1
Governor's Tracking No. AR 344
STATE OF
OFFICE OF
ADMINISTRATIVE HEARINGS
|
In the Matter of Proposed Amendments to Rules Governing the
Environmental Review Program: |
REPORT OF THE
ADMINISTRATIVE LAW JUDGE (CORRECTED) |
Administrative Law Judge Steve M. Mihalchick conducted
a series of hearings throughout
The hearing and this Report are part of a
rulemaking process governed by the Minnesota Administrative Procedure Act.[2] The legislature has designed the rulemaking
process to ensure that state agencies have met all the requirements that
The members of the EQB’s hearing panel were: Gregg Downing, Environmental Review Coordinator, EQB; Jon Larsen, Principal Planner, EQB; Peder Otterson, Shoreland Management Supervisor, Minnesota Department of Natural Resources (Alexandria and Hermantown hearings); Matthew Langan, Technical Representative, Minnesota Department of Natural Resources (Hermantown and St. Paul hearings); and Paul Radomski, Science Advisor, Minnesota Department of Natural Resources (Bemidji and Baxter hearings).
The EQB and the Administrative Law Judge received written comments on the proposed rules prior to the hearing. At the hearing, the initial deadline for filing written comment was set for March 25, 2009, twenty calendar days after the last originally scheduled hearing, to allow interested persons and the EQB an opportunity to submit written comments. Following the initial comment period, the record remained open for an additional five business days, April 1, 2009, to allow interested persons and the EQB the opportunity to file a written response to the comments received during the initial period. The last timely response was received and the hearing record closed on April 1, 2009.
Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:
1. The Board is proposing to amend Minn. R. ch. 4410 governing the Environmental Review Program. These proposed rules relate to the preparation of Environmental Assessment Worksheets (EAWs), Environmental Impact Statements (EISs), and other environmental review documents. This rulemaking is referred to by the Board as the Phase 2 amendments, to distinguish it from the previous Phase 1 amendments which were adopted by the Board in 2006.
2. The major proposed additions and revisions the Board is proposing in this rulemaking are as follows:
a. New mandatory EAW and EIS categories specific to developments in shoreland areas.
b. Amendments to the Alternative Urban Areawide Review (AUAR) process.
c. Amendments clarifying how “cumulative potential effects” are to be accounted for in determining if a discretionary EIS is required.
d. Clarifications to the citizens’ petition process.
e. Guidance on the assessment of cumulative effects in EAWs, EISs, and AUAR documents.
f. Clarifications on a governmental unit’s ability to prepare and give public notice of draft permits or other approval documents prior to completion of the environmental review process.
g. The preparation of an EIS for a proposed release and a permit for a release of genetically engineered wild rice.
3. The Board’s statutory authority to adopt these proposed rules is located in the Environmental Policy Act, Minnesota Statutes, chapter 116D. Specifically, Minn. Stat. § 116D.04, subd. 2a (a), directs the Board to establish, by rule, “categories of actions for which environmental impact statements and for which environmental assessment worksheets shall be prepared as well as categories of actions for which no environmental review is required.”
4.
Further, subdivision 4a of
(1) the governmental unit which shall be
responsible for environmental review of a proposed action;
(2) the form and content of environmental
assessment worksheets;
(3) a scoping process in conformance with subdivision
2a, clause (e);
(4) a procedure for identifying during the scoping
process the permits necessary for a proposed action and a process for
coordinating review of appropriate permits with the preparation of the
environmental impact statement;
(5) a standard format for environmental impact
statements;
(6) standards for determining the alternatives to
be discussed in an environmental impact statement;
(7) alternative forms
of environmental review which are acceptable pursuant to subdivision 4a;
(8) a model ordinance which may be adopted and
implemented by local governmental units in lieu of the environmental impact
statement process required by this section, providing for an alternative form
of environmental review where an action does not require a state agency permit
and is consistent with an applicable comprehensive plan. The model ordinance
shall provide for adequate consideration of appropriate alternatives, and shall
ensure that decisions are made in accordance with the policies and purposes of
Laws 1980, chapter 447;
(9) procedures to reduce paperwork and delay
through intergovernmental cooperation and the elimination of unnecessary
duplication of environmental reviews;
(10) procedures for expediting the selection of
consultants by the governmental unit responsible for the preparation of an
environmental impact statement; and
(11)
any additional rules which are reasonably necessary to
carry out the requirements of this section.
5. Additional authority for adopting standards is established under Minn. Stat. § 116D.045. Subdivision 1 authorizes the Board to “adopt procedures to assess the proposer of a specific action for reasonable costs of preparing and distributing an environmental impact statement on that action required pursuant to section 116D.04. Such costs shall be determined by the responsible governmental unit pursuant to the rules promulgated by the board.”
6. Finally, Minn. Stat. § 116C.94, subd. 1, was amended in 2007 as follows:
(b) The board shall adopt rules that require an environmental impact statement and otherwise comply with chapter 116D and rules adopted under it for a proposed release and a permit for a release of genetically engineered wild rice. The board may place conditions on the permit and may deny, modify, suspend, or revoke the permit.[3]
7. Under these statutory provisions, the Board has the necessary authority to adopt the proposed rules.
8. On August 14, 2006, the EQB published in the State Register a Request for Comments on the EQB’s possible amendments to the existing rules governing the Environmental Review Program. The Request explained that these are the rules governing the preparation of EAWs, EISs, and other environmental review documents. The notice indicated that the EQB had not yet prepared a draft of the possible rules and invited comments.[4]
9. Subsequently, the EQB published three more Requests for Comments in the State Register, which supplemented the Request for Comments published on August 14, 2006. On December 11, 2006, the EQB sought comments on possible amendments addressing the analysis of cumulative effects, incorrect references, and public notice of draft permits. The June 18, 2007 Request for Comments notified the public that the EQB was also proposing to address release and a permit for release of genetically engineered wild rice, as required by the Minnesota Legislature during the 2007 session. On May 27, 2008, the EQB published a final Request for Comments announcing its intention to correct errors in four rule parts of the proposed rules.[5]
10. On December 15, 2008, the Board filed copies of the proposed Notice of Hearing, proposed rules, and draft Statement of Need and Reasonableness (SONAR) with the Office of Administrative Hearings. The filings complied with Minn. R. 1400.2080, subp. 5. On the same date, the Board also filed a proposed additional notice plan for its Notice of Hearing and requested that the plan be approved pursuant to Minn. R. 1400.2060. By letter of December 18, 2008, the Administrative Law Judge approved the additional notice plan.
11. As required by Minn. Stat. § 14.131, the Board asked the Commissioner of Finance to evaluate the fiscal impact and benefit of the proposed rules on local units of government in a letter dated October 5, 2007. The Department of Finance provided comments in a memorandum dated January 9, 2008, and stated that the Board had adequately analyzed the potential costs to local units of government.[6] The Department of Finance concluded:
It is likely that as a result of these rule changes there will be some fiscal impact on local units of government. The magnitude of the impact depends on the extent to which local governments pass the costs of increased requirements and services to project proposers. Local units of government that commonly produce EAWs and EISs will likely have cost recapture processes already in place. Those local governments that have not had to complete many EAWs and EISs previously would likely be the ones that may incur costs as the result of the rule change.[7]
12. On January 8, 2009, the Board mailed the Notice of Hearing to all persons and associations who had registered their names with the Board for the purpose of receiving such notice. The Notice contained the elements required by Minn. R. 1400.2080, subp. 2. The Notice identified the dates and locations of the hearings in this matter. The Notice also announced that the hearing would continue until all interested persons had been heard, or additional hearing dates added, if needed.[8]
13. On January 20, 2009, a copy of the proposed rules and the Notice of Hearing were published in the State Register.[9]
14.
At the hearing in
A. The Department’s Request for Comments as published in the State Register on August 14, 2006.[10]
B. The Department’s Request for Comments as published in the State Register on December 11, 2006.[11]
C. The
Department’s Request for Comments (to propose mandatory EIS category for
genetically-engineered wild rice), as published in the State Register on June
18, 2007.[12]
D. The
Department’s Request for Comments as published in the State Register on May 27,
2008.[13]
E. A
copy of the proposed rule amendments, as approved by the Revisor of Statutes.[14]
F. The
Statement of Need and Reasonableness (SONAR).[15]
i.
SONAR, Attachment 1: Public Notice: EQB
seeks input on proposals for amending rules regarding "cumulative impacts
or effects," May 2, 2007.[16]
ii.
SONAR, Attachment 2: Shoreland projects
survey, May 2007.[17]
iii. SONAR,
Attachment 3: Graph 1.[18]
iv. SONAR,
Attachment 4: Background information in support of SONAR, DNR staff, April
2007.[19]
v.
SONAR, Attachment 5: Fact sheet re
lakeshore development categories, November 2004.[20]
G. A
memorandum from James Connaughton, the Chairman of the Council on Environmental
Quality, Executive Office of the President, titled, “Guidance on the
Consideration of Past Actions in Cumulative Effects Analysis.”[21]
H. Minnesota
Supreme Court case, Citizens Advocating
Responsible Development, et al vs. Kandiyohi County Board of Commissioners and
Duininck Brothers, Inc.[22]
I. The
certificate of mailing for sending the Statement of Need and Reasonableness to
the Legislative Reference Library.[23]
J. Notice
of Hearing, as mailed.[24]
K. The
Department’s Notice of Hearing as published in the State Register on January
20, 2009.[25]
L. Certificate
of mailing the notice of hearing to EQB rulemaking mailing list.[26]
M. Certificate
of the accuracy of the mailing list.[27]
N. Certificate
of giving notice pursuant to the additional notice plan by use of the EQB
Monitor.[28]
O. Certificate
of giving notice pursuant to the additional notice plan by posting notice at
the EQB's website. [29]
P. Certificates
of Giving Notice
i.
Certificate of giving notice pursuant
to the additional notice plan by mailing or emailing to known persons –
Minnesota Association of Counties (Gregg Downing).[30]
ii.
Certificate of giving notice pursuant
to the additional notice plan by mailing or emailing to known persons –
individuals interested in genetically-engineered wild rice (Jon Larsen).[31]
iii. Certificate
of giving notice pursuant to the additional notice plan by mailing or emailing
to known persons – Shoreland Rules Update Project (Susan Hall).[32]
Q. Certificate
of giving notice pursuant to the additional notice plan by use of a news
release (Jim Schwartz).[33]
R. Certificate
of sending the Notice of Hearing and Statement of Need and Reasonableness to
Legislators.[34]
S. Certificate
of Board's authorizing resolution.[35]
T. Letter,
dated December 3, 2008, informing Commissioner of Agriculture that proposed
rules may affect farming operations.[36]
U. Documents
and Comments
i.
Documents from, and comments received
in response to, August 2006 Request for Comments.[37]
ii.
Documents from, and comments received
in response to, December 2006 Request for Comments.[38]
iii. Documents
from, and comments received in response to, June 2007 Request for Comments.[39]
iv. Documents
from, and comments received in response to, June 2007 informal request for
comments regarding treatment of cumulative impacts or effects.[40]
v.
Documents from, and comments received
in response to, June 2007 informal request for comments regarding mandatory
categories for land projects.[41]
15. The Board has met all of the procedural requirements applicable to the proposed rules. All exhibits were available at the cost of reproduction from the Board.
16. Minn. Stat. §§ 14.131 and 14.23 require that an agency include in its SONAR a description of its efforts to provide additional notification to persons or classes of persons who may be affected by the proposed rule or explain why these efforts were not made.
17. The EQB has made a genuine and committed effort to involve interested parties and other members of the public in this rulemaking. Significant changes to the proposed rule were made in response to comments and feedback from interested parties. The proposed rule has benefited substantially from this public input. By the time of the public hearings, the EQB had heard and considered the great majority of the evidence and argument that would be presented by interested parties and the public at the hearing, and had made several modifications to its proposed rules to incorporate meritorious suggestions that had been presented. It made additional modifications based upon comments made at and during the hearings.
18. The EQB created a Web page devoted to the proposed amendments.[42] It contained links to the proposed rules, SONAR, Notice of Hearing, and pre-hearing comments submitted to the Board regarding the proposed rules. Subsequently the Web page was periodically updated to inform interested parties and the public about changes to the proposed rules.
19. As found in Finding No. 10, the EQB submitted an additional notice plan to the Office of Administrative Hearings, which was reviewed and approved by the Administrative Law Judge by letter dated December 18, 2008. During the rulemaking proceeding, the EQB certified that it provided notice to those on the rulemaking mailing list maintained by the EQB and in accordance with its additional notice plan.[43]
20.
Pursuant
to its approved additional notice plan, the Board also provided notice of the
proposed rules by:
§ Posting the Notice of Hearing, proposed rules, and SONAR on the EQB’s website;
§
Publishing rulemaking information in the EQB Monitor;
§
Sending a press release to major circulation
newspapers;
§
Emailing the Notice of Hearing, proposed rules,
and SONAR to the Minnesota Association of Counties and requesting that the
information be forwarded to each county, specifically the zoning
administrators;
§
Emailing the Notice of Hearing to individuals
who had expressed interest in the requirements for an EIS for the release of
genetically engineered wild rice; and
§
Emailing links to the Notice of Hearing,
proposed rules, and SONAR to people interested in the parts of the proposed
rules relating to shoreland development.[44]
21.
The EQB went to great lengths to inform and
involve interested parties and the affected public in this rulemaking. The active
participation of those persons and the accommodation by the EQB of many of
their concerns demonstrates that the EQB more than adequately satisfied the notice
requirements.
22. Minn. Stat. § 14.131 requires an agency adopting rules to include in its SONAR:
a. a description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;
b. the probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;
c. a determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule;
d. a description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule;
e. the probable costs of complying with the proposed rule, including the portion of the total costs that will be borne by identifiable categories of affected parties, such as separate classes of governmental units, businesses, or individuals;
f. the probable costs or consequences of not adopting the proposed rule, including those costs or consequences borne by identifiable categories of affected parties, such as separate classes of government units, businesses, or individuals; and
g. an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.
In the SONAR, the Board included and thoroughly addressed all these factors. Some of the statements in the SONAR are restated in the following findings.
23.
In the SONAR, the EQB stated that the proposed
rules would directly affect persons who propose to develop projects that have,
or may have, potential for significant environmental effects. The greatest impact would be to proposers of
projects located in shoreland areas affected by the proposed mandatory EAW
categories. The types of shoreland area
projects involved would be nonmetallic mining, residential developments,
resorts, RV parks, campgrounds, and other projects disturbing certain amounts
of shoreland. The persons who are
expected to benefit from the proposed changes are project proposers, units of
government and the general public.[45]
24. As the Responsible Governmental Unit (RGU) for EISs on releases of genetically engineered wild rice, the EQB would incur significant costs during EIS scoping and preparation, but would be authorized to charge those costs to the project proposer. The only other costs that EQB would incur in implementing the new rules would be for the costs of time and materials for updating guidance materials to incorporate the rule amendments, which it found would be minimal. Counties and cities with developable shoreland will likely experience higher costs for review due to some rule amendments, but in almost all cases the costs would be added to the costs paid by the proposed users of the projects undergoing review. The additional procedures for the AUAR will accrue in most cases to the proposer of the project that necessitated the additional procedures.[46]
25. The EQB stated that most of the proposed amendments are clarifications of the existing rules and do not impose additional costs or intrusions.[47] For those amendments that do impose additional requirements, the EQB considered several different options, as discussed below and throughout the SONAR.
26. The EQB did consider alternative approaches to the proposed rule amendments in the AUAR process. The original amendment concept would have prohibited removal of a project from an AUAR once started, and would have prohibited use of the AUAR process to review specific development projects. In response to public comments opposing these prohibitions, the EQB modified the proposed amendment to create additional opportunities for public input in the review process. The EQB also considered different ways to amend the rule provisions regarding the treatment of cumulative-type impacts as well as the mandatory EAW and EIS categories for shoreland projects.[48] These options are discussed in depth in the SONAR.
27. According to the EQB, the primary cost increases caused by the proposed amendments are those attributable to the new mandatory EAW and EIS categories for shoreland projects. Proposers of projects would bear the additional costs associated with these new categories. The EQB estimated that the cost of an EAW for a shoreland project is between $5,000 and $10,000, while most other EAWs cost between $1,000 and $15,000.[49]
28. To estimate the new costs to be imposed by the creation of the new EAW and EIS mandatory categories, the EQB surveyed counties and 57 cities with extensive shoreland areas to obtain data on the characteristics of projects in shorelands over the past decade. The SONAR contains a lengthy discussion of the results of this survey.[50]
29. According to the Board, if the proposed rule amendments were not adopted, the costs and consequences would affect four categories; 1) continuing inefficiencies caused by confusion or misinterpretation that would be corrected by the proposed amendments; 2) those affected by ineffective features in the current rules that would be corrected by the amendments; 3) those due to the need to process citizen petitions for some projects that would either be exempt or automatically require review; and 4) those due to not correcting the error made by the Court of Appeals regarding AUAR boundaries and the scope of technical analysis.[51]
30. In the SONAR, the Board stated that the federal process prescribes environmental documents similar to the Minnesota EAW and EIS but different in detail. In the instances where dual state-federal review is needed, specific provisions in the Environmental Review rules provide for joint review with one set of environmental documents. These provisions are not affected by the proposed amendments. One specific area of the proposed amendments that would perpetuate a difference between state and federal review is in the terminology used for cumulative-type impacts. The state’s proposed definition would modify federal wording to reflect a Minnesota Supreme Court ruling that made a distinction between a broader scope of analysis appropriate to an EIS and a narrower scope appropriate to review of specific projects.[52]
31. The EQB has fulfilled its obligation under Minn. Stat. § 14.131 to discuss cost and alternative assessments in the SONAR.
32.
Minn.
Stat. § 14.111 imposes an additional requirement calling for notification to be
provided to the Commissioner of Agriculture when rules are proposed that affect
farming operations. In addition, where
proposed rules affect farming operations, Minn. Stat. § 14.14, subd. 1b,
requires that at least one public hearing be conducted in an agricultural area
of the state.
33.
By
letter dated December 3, 2008, the EQB provided the proposed rules and the
SONAR to the Commissioner of Agriculture.
The EQB directed attention to the proposed rule (Minn. R. 4410.4400,
subp. 28) adding a mandatory EIS requirement for the release of genetically
engineered wild rice.
34.
The Administrative Law Judge concludes that EQB
has provided notice and conducted a hearing in accordance with Minn. Stat. §
14.111.
35. Minn. Stat. § 14.131 also requires that an agency include in its SONAR a description of how it “considered and implemented the legislative policy supporting performance-based regulatory systems set forth in section 14.002.” Section 14.002 states, in relevant part, that “whenever feasible, state agencies must develop rules and regulatory programs that emphasize superior achievement in meeting the agency’s regulatory objectives and maximum flexibility for the regulated party and the agency in meeting those goals.”
36. According to the EQB, there were no opportunities here for new performance-based rules or to provide procedural flexibility because most of the proposed amendments do not substantially affect the procedures of environmental review, and few of the amendments related to the AUAR process add public notice, review and comment process.[53]
37. The Administrative Law Judge finds that the EQB has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules, including consideration and implementation of the legislative policy supporting performance-based regulatory systems.
38.
Effective
July 1, 2005, under Minn. Stat. § 14.127, an agency must “determine if the cost
of complying with a proposed rule in the first year after the rule takes effect
will exceed $25,000 for: (1) any one
business that has less than 50 full-time employees; or (2) any one statutory or
home rule charter city that has less than ten full-time employees.”[54] The agency
must make this determination before the close of the hearing record, and the
Administrative Law Judge must review the determination and approve or
disapprove it.[55]
39. The EQB has determined that the rule amendments proposed will not result in an increased cost of more than $25,000 for any small city in the first year after adoption, but it may result in costs exceeding $25,000 for one or more small businesses. Those businesses would most likely be shoreland real estate developers who would be confronted with requirements for additional mandatory EAWs and EISs, which can cost in excess of $100,000.[56]
40. The Administrative Law Judge finds that the EQB has made the determination required by Minn. Stat. § 14.127 and approves that determination.
41.
Under
42. As stated in Finding No. 11, the Board asked the Commissioner of Finance to evaluate the fiscal impact and benefit of the proposed rules on local units of government in a letter dated October 5, 2007. The Department of Finance provided comments in a memorandum dated January 9, 2008, and stated that the Board had adequately analyzed the potential costs to local units of government.[57]
43. The Administrative Law Judge finds that the Board has met the requirements set forth in Minn. Stat. § 14.131 for assessing the impact of the proposed rules on units of local government.
44.
Under
45.
The question of whether a rule has been shown to
be reasonable focuses on whether it has been shown to have a rational basis, or
whether it is arbitrary, based upon the rulemaking record.
46. Reasonable minds might be divided about the wisdom of a certain course of action. An agency is legally entitled to make choices between possible approaches so long as its choice is rational. It is not the role of the Administrative Law Judge to determine which policy alternative presents the “best” approach, since this would invade the policy-making discretion of the agency. The question is, rather, whether the choice made by the agency is one that a rational person could have made.[64]
47. In addition to need and reasonableness, the Administrative Law Judge must also assess whether the Board complied with the rule adoption procedure, whether the rule grants undue discretion, whether the Board has statutory authority to adopt the rule, whether the rule is unconstitutional or illegal, whether the rule constitutes an undue delegation of authority to another entity, or whether the proposed language is not a rule.[65]
48. Because the Board suggested changes to proposed rules after the hearing and in response to comments by the public, it is necessary for the Administrative Law Judge to determine if the new language is substantially different from that which was originally proposed. The standards to determine whether changes to proposed rules create a substantially different rule are found in Minn. Stat. § 14.05, subd. 2. The statute specifies that a modification does not make a proposed rule substantially different if “the differences are within the scope of the matter announced . . . in the notice of hearing and are in character with the issues raised in that notice,” the differences “are a logical outgrowth of the contents of the . . . notice of hearing, and the comments submitted in response to the notice,” and the notice of hearing “provided fair warning that the outcome of that rulemaking proceeding could be the rule in question.” In reaching a determination regarding whether modifications result in a rule that is substantially different, the Administrative Law Judge is to consider whether “persons who will be affected by the rule should have understood that the rulemaking proceeding . . . could affect their interests,” whether the “subject matter of the rule or issues determined by the rule are different from the subject matter or issues contained in the . . . notice of hearing,” and whether “the effects of the rule differ from the effects of the proposed rule contained in the . . . notice of hearing.”
49. This Report is limited to discussion of the portions of the proposed rules that received critical comment or otherwise need to be examined, and it will not discuss each comment or rule part. Persons or groups who do not find their particular comments referenced in this Report should know that each and every suggestion, including those made prior to the hearing, has been carefully read and considered. Moreover, because sections of the proposed rules were not opposed and were adequately supported by the SONAR, a detailed discussion of each section of the proposed rules is unnecessary.
50. The Administrative Law Judge finds that the EQB has demonstrated, by an affirmative presentation of facts, the need for and reasonableness of all provisions of its rule changes as originally proposed and the modifications it proposed in its post hearing Response. The Administrative Law Judge also finds that all provisions are authorized by statute and that there are no other problems that would prevent the adoption of the proposed rules.
51. There is some disagreement with the Board’s rules expressed by interested persons and other members of the public. Again, however, the Board has fully addressed those concerns, incorporated some of them in its modifications, or added further clarification of its reasons for its own proposals. Many lake associations submitted comments in support of the proposed rules generally. The Board is not required to adopt a rule or policy because someone considers it “better,” or more favorable to that person. Some of the comments were directed at rule provisions that were not proposed to be changed and some requested new rules beyond those proposed in this proceeding. Those are not within the scope of the Notice of Hearing and cannot be addressed. None of the public comments demonstrate that any of the proposed rule changes are unreasonable or not in compliance with applicable law.
Rule Analysis by Part
Part 4410.0200 – Definitions and
Abbreviations
Subpart 11a – Cumulative potential effects
52.
The EQB proposes a new definition of “cumulative
potential effects” to clarify and correct problems related to impacts of a
cumulative nature that are due to multiple projects over time. Various terms are used to describe this type
of result, including “cumulative impact,” “cumulative effect,” and “cumulative
potential effect.” Although the terms
have been interpreted to have a similar meaning in the past, the EQB chose to
adopt the distinction recognized by the Minnesota Supreme Court in Citizens Advocating Responsible Development
v. Kandiyohi County Board of Commissioners (the CARD decision).[66] The Court distinguished between a broader
scope of review associated with “cumulative impacts” and a narrower,
project-specific focus associated with “cumulative potential effects.” The amended definition is derived from a
composite of the CARD ruling, Council
on Environmental Quality (CEQ) guidance and the National Environmental Policy
Act (NEPA) so as to incorporate desired concepts and appropriate factors for
making determinations about those concepts.[67]
53. Comments received in response to the Request for Comments expressed concern that the new definition would create confusion and deprive RGUs of guidance from past NEPA case law on the subject.[68] The EQB considered using the NEPA cumulative impact language, but rejected it based on its belief that such an approach would not provide more clarity, particularly when trying to decide if significant cumulative potential effects may result from a project, as when preparing and using an EAW.[69]
54. The expansion of the scope of cumulative potential effects analysis is of concern to many commentators, who worry that the proposed amendments will make the cumulative potential effects analysis more expansive, complicated, and expensive.[70] The EQB acknowledges that this analysis is a difficult concept, but argues that its proposed definition strikes an appropriate balance in defining boundaries and requirements. According to the EQB, the proposed definition will aid RGUs in implementing review requirements and insulate them from unwarranted litigation.[71]
55. The amended rule also substitutes the term “environmentally relevant area” for “surrounding area” to better denote the phrase’s intended and proper meaning. “Surrounding area” implies a single, fixed area, which may either be too big or too small relevant to consideration of the cumulative potential effects. Thus, the new term is designed to overcome that problem. Some commentators disagreed with that policy choice, but the EQB’s position is reasonable.[72]
56. The EQB received a comment suggesting the addition of the phrase “but collectively significant” between the words “minor” and “projects” on line 2.1 of the Proposed Permanent Rules.[73] The EQB considered the proposal in the SONAR,[74] but found that the point was whether individual projects could result in cumulative potential effects; not whether those effects were collectively significant. According to the EQB, the original phrase, taken from the NEPA definition of cumulative impacts, implies all cumulative potential effects are significant by definition, which is not true.[75]
57. The EQB received a comment suggesting the deletion of the phrase beginning with “unless” on line 2.4 of the proposed permanent rules.[76] The EQB notes that it borrowed the concept from recent NEPA guidance and considered making the change.[77] The EQB ultimately rejected omitting the phrase based on a concern that, without it, a situation might arise where such itemization of past impacts was necessary, but only optional.[78] As it stands, the proposed rule does not require itemization of past actions unless necessary.
58. The EQB also received comments with regard to the basis of expectation factors for determining whether a project is reasonably likely to occur.[79] The SONAR states that each of the factors listed in the proposed rule “may” lay a basis of expectation, but that the RGU must consider them among other factors.[80] The Association of Minnesota Counties (AMC) comment suggested a modification to line 2.13 of the Proposed Permanent Rules by deleting “relevant” and adding “determined to be relevant by the RGU” after “factors.” The EQB wishes to make this change and believes it would improve the wording and clearly denote that it is the RGU who determines whether a factor is relevant.[81] This editorial change to Subpart 11a is necessary and reasonable. The modifications do not create a substantial difference from the proposed subpart 11a. The EQB has demonstrated that the proposed rule is reasonable and necessary and provides needed standards to aid in the preparation of an EAW.
Subpart 55a – Ordinary high water level
59. The EQB proposed to add a definition of “Ordinary high water level” giving it the meaning in Minn. R. 6120.2500, subpart 11, which is a term defined in the Department of Natural Resources (DNR) rules regarding shoreline management. The EQB wants to make its environmental review rules and the DNR’s shoreland management rules consistent as to the definition of “ordinary high water level” because both rules address the same topic.[82]
60.
Subsequent to publication of the proposed rules
in the State Register, DNR staff approached the EQB and suggested that the
reference to Minn. R. 6120.2500 be deleted and substituted instead with a
reference to Minn. Stat. § 103G.055, subd. 14.
While the definition of “ordinary high water level” in the statute is
slightly different than it is in the DNR’s rules, the EQB wishes to change
proposed part 4410.0200, subp. 55a, as follows:
“‘Ordinary high water level’ has the meaning given in part 6120.2500,
subpart 11
61. The Administrative Law Judge finds that proposed definition at subpart 55a is needed and reasonable, and changing it as stated above does not make it substantially different from the text as originally published in the State Register.
Subpart 79a – Sensitive shoreland area
62. The Board proposed a definition of “Sensitive shoreland area” at subpart 79a. The Board stated that this definition is needed because the phrase is used in the proposed rules regarding new mandatory categories for projects in shorelands at parts 4410.4300 and 4410.4400.[84]
63.
Henry VanOffelen of the
64.
Subsequent to the hearings, the Board noticed an
error in the proposed definition and wishes to fix it as follows: “‘Sensitive shoreland area’ means shoreland
designated as a special protection district pursuant to part 6120.3200 and
or shoreland riparian to any of the following types of public waters . .
. .”[87]
65. The Administrative Law Judge finds that proposed definition at subpart 79a is needed and reasonable, and changing it as stated above does not make it substantially different from the text as originally published in the State Register.
Subpart 81a – Shore impact zone
66. The EQB originally proposed to define “Shore impact zone” as follows: “‘Shore impact zone’ means land located between the ordinary high water level of a public water and a line parallel to it at 50 percent of the structure setback distance as established by part 6120.3300, subpart 3, or by local ordinance, whichever distance is greater.”
67.
The term is used as a threshold factor in the
proposed new EAW category at part 4410.4300, subpart 36a, item B, dealing with
land conversions in shorelands. The
initial definition of the new term was taken from existing DNR shoreland
management rules at part 6120.3300 subpart 3.[88]
68.
Comments received raised concerns that the
definition from DNR rules was very lengthy and potentially confusing.[89] In response, the EQB proposed a completely
new, simplified definition as follows: “‘Shore impact zone’ has the meaning
given in part 6120.2500, or by a local ordinance if the ordinance specifies a
greater size for the zone.”[90]
69.
The Administrative Law Judge finds that this clarification
is reasonably within the scope of the originally proposed rule and preserves
the goals of the original change. The
new proposed term and the changes are reasonable and necessary and do not make
subpart 81a substantially different.
Part 4410.1100, subpart 2 – Petition
Process; Content
70.
Part 4410.1100 allows
for any person to request the preparation of an EAW on a project by filing a
petition signed by at least 25 individuals.
Subpart 2 lists the required contents of such a petition. The Board proposed to amend item E as
follows:
The petition shall also include: . .
.
E. material evidence
indicating that, because of the nature or location of the proposed project,
there may be potential for significant environmental effects. The material evidence must physically
accompany the petition. It is not
sufficient to merely provide a reference or citation to where the evidence may
be found.
71.
The Board seeks this
amendment due to the increased use of the internet to obtain material evidence
to file with a petition. Some
individuals have provided only URL citations to material evidence on the
internet without including the information with the petition. The statute, Minn. Stat. § 116D.04, subd. 2a,
governing petitions for an EIS is similar and related to this rule and refers
to “material evidence accompanying a petition.” The Board wishes to carry the idea over into
this rule.[91]
72.
MCEA expressed concern
that this new requirement will impose a significant burden on the public,
particularly if the material to which the petition refers is protected by a
copyright and cannot be legally copied.
MCEA suggested that the Board add language to the rule allowing for
alternative arrangements to be made if the material is under copyright
protection to ensure that the RGU is able to review the materials without
requiring citizens to make illegal copies.[92]
73.
The Board responded
that it is to the petitioner’s advantage and necessary to the petition to
provide a physical copy of the material evidence so that the RGU can adequately
review, evaluate, and respond to the petition.
The structure and availability of individual websites changes too
rapidly to assure that the same information is available at any subsequent time
for viewing. Furthermore, the Board
stated that it knows of no instance where a petitioner has been frustrated by
copyright protection or held accountable for copyright infringement as it
relates to the petition process. Accordingly,
the Board stands by its addition to item E and declines to change the proposed
rule based on MCEA’s comments.[93]
74.
The Administrative Law Judge finds that the EQB
has demonstrated a rational basis for the amendment to subpart 2, item E. While the MCEA raised some good arguments,
nothing in those comments defeats the need for and reasonableness of the
proposed change.
Part 4410.1700,
subpart 7 – Decision on Need for EIS; Criteria
75.
The EQB proposed the
following amendments to subpart 7:
In deciding whether a project has the potential for
significant environmental effects, the following factors shall be considered: .
. .
B. cumulative
potential effects of related or anticipated future projects. The RGU shall consider the following
factors: whether the cumulative
potential effect is significant; whether the contribution from the project is
significant when viewed in connection with other contributions to the
cumulative potential effect; the degree to which the project complies with
approved mitigation measures specifically designed to address the cumulative
potential effect; and the efforts of the proposer to minimize the contributions
from the project;
C. the extent to
which the environmental effects are subject to mitigation by ongoing public
regulatory authority. The RGU may
rely only on mitigation measures that are specific and that can be reasonably
expected to effectively mitigate the identified environmental impacts of the
project . . . .
76.
These proposed
amendments to subpart 7 are the EQB’s attempt to deal with problems relating to
effects of a cumulative nature. The
definition of “cumulative potential effects” proposed at part 4410.0200, subp.
11a, is implemented in this subpart. The
EQB seeks to add this list of factors that an RGU must consider when
determining if the project under review has the potential for significant
environmental effects due to the cumulative potential effects to which it
contributes. The Minnesota Supreme
Court’s CARD decision does not
provide this type of guidance, and the EQB believes that these factors will aid
the regulated parties in understanding the process.[94]
77. MCEA urges deletion of the last three of the four proposed factors. Their objection lies in the ultimate purpose of cumulative potential effects analysis, which they contend is to focus on environmental impacts rather than on project developers. MCEA contends that the final three factors are contrary to federal and state environmental review law and in conflict with the ultimate role a cumulative potential effects analysis should play in determining that a project has the potential for significant environmental effects.[95]
78.
The EQB staff responded to concerns raised by
the MCEA by pointing out that the
79. MCEA supports the proposed changes to item C, but recommended that the EQB be clear that this standard does not depart from mitigation standards set forth in state and federal case law.[97]
80.
The EQB also responded to comments received from
the Minnesota Chamber of Commerce regarding the changes made to items B and C
and how these changes will interact in the RGU’s decision-making process.[98] With respect to Item B, according to the EQB,
“the mitigation plan factor is intended to mean only a comprehensive mitigation
plan designed to address a certain cumulative potential effect and to allocate
allowable contributions among all contributing sources.”[99] There are a limited number of such plans for
the near future in
81.
The proposed amendment
to subpart 7 acts as a guide to regulated parties in determining whether an EIS
is necessary. The EQB has shown that the
proposed amendments to items B and C are needed and reasonable.
Part 4410.3100, subpart 2a – Prohibition on
Final Governmental Decisions; Concurrent review of draft permits not prohibited
82.
The Board proposed
subpart 2a for clarification purposes, as follows: “Subpart 1 does not prohibit a
governmental unit from issuing notice of and receiving public comments on a
draft permit prior to completion of environmental review.” According to the Board, this practice is
common among RGUs, but has recently been questioned as contrary to the
prohibitions in subpart 1.[100]
83.
MCEA strongly objected
to this proposed language and argued that allowing for noticing of draft
permits prior to the completion of environmental review is outside the
authority of the EQB under the applicable statute. MCEA cites Minn. Stat. § 116D.04, subd. 2b,
which states that a governmental action “shall be preceded” by a detailed
environmental impact statement. Furthermore,
subdivision 2a of the same statute prohibits a governmental entity from taking
action, directly or indirectly, to further or assist a project prior to
completion of environmental review. MCEA
asserts that the purpose of environmental review, through the preparation of
EAWs or EISs, is to allow governmental agencies to engage in reasoned and fully
informed decision making regarding the environmental impacts of a particular
government action. MCEA also expressed
concern that concurrent environmental review and public comment would actually
impede effective public participation because the findings of the environmental
review would not yet be completed and available.[101]
84.
According to the EQB,
the proposed rule language affects only the timing of public notice of a draft
permit and reception of public comments.
The EQB asserts that the proposed rule does not dictate that any
governmental unit engages in concurrent review if it chooses to defer such
notice. The other prohibitions on final
governmental decisions under part 4410.3100 remain intact, and effective public
participation is not diminished.[102]
85.
The Administrative Law
Judge finds that the Board has demonstrated a rational basis in the record for
this proposed addition to part 4410.3100.
Subpart 2a is a clarification to the rules for the benefit of the
regulated parties, and the Administrative Law Judge finds that it is needed and
reasonable.
Part 4410.3610 – Alternative Urban Areawide
Review Process
Subpart
2, item D – Relationship to specific development projects
86.
The Alternative Urban
Areawide Review (AUAR) process is a simplified process by which a local unit of
government can do a broad-based environmental review without needing to make a
case-by-case determination of whether environmental review is otherwise
required for all projects within the area.
The AUAR process is not intended to create a presumption that every
possible project that is proposed within the study area requires review.[103]
87.
The EQB proposed item
D to: (1) add an explicit statement that the ordering of an AUAR does not constitute
a finding by the RGU that all potential development within the AUAR area has or
may have the potential for significant environmental effects; and (2) add a
public notice and comment opportunity prior to any removals of projects from
the AUAR review. The EQB wished to
address situations in which an AUAR is begun and then a proposer of a project
of less than mandatory review size wishes to remove the proposer’s project area
from the AUAR. The EQB presumes that
this will generally happen when a proposer wants to proceed through the local
review process on a faster track than the AUAR is scheduled to progress.[104]
88.
MCEA objected to a project
being removed from a particular AUAR process as contrary to Minnesota Statutes,
chapter 116D, which requires review of any government action, direct or
indirect, that has the potential for significant environmental effects,
regardless of whether or not an individual project itself fits within the
mandatory EAW or EIS categories.
According to MCEA, when a local government unit decides to order
preparation of an AUAR, the decision has already been made that there is the
potential for significant environmental effects from the actions that will be
examined within the AUAR, and that all parcels and projects within that area
must necessarily be included in the review.
Failure to include all projects is arbitrary and capricious and contrary
to the statute, and MCEA urges the EQB to remove item D from the proposed
rules. At a minimum, MCEA supports the
position of the DNR that parcels or projects be removed from an AUAR only if
the parcel or project does its own EAW or EIS.[105] As to the public
notice and comment portion of proposed item D, MCEA requested that the proposed
10-day comment period be extended to a 30-day period, as it is with other types
of environmental review.
89.
In response, the EQB
noted that MCEA objected to this same concept during the “phase 1” rulemaking
in 2006, and the EQB sought to clarify the rules in this rulemaking by adding
the first sentence of item D, which makes explicit that the ordering of an AUAR
does not create an obligation that would not otherwise exist to review any
particular specific project that may arise within the AUAR boundary during the
preparation of the AUAR. The EQB argues
that the AUAR process is voluntary for the RGU and that the RGU should have the
ability to remove a project from the review once it has been ordered. Furthermore, the EQB notes that the notice
and comment period should bring to light any sound reasons why the project
proposed for removal should not be removed from the AUAR process. As to MCEA’s proposal to lengthen the comment
period, the EQB reiterated that the 10-day period is long enough given the
limited scope of comment, which is not nearly as comprehensive as that of an
EAW or EIS.[106]
90.
The Administrative Law
Judge finds that the Board has demonstrated a rational basis in the record for
proposed subpart 2, item D. While MCEA’s
comments were thoughtful and comprehensive, the Board is not required to adopt
those suggestions. Subpart 2, item D is
needed and reasonable.
Subpart 5, item A – Procedures for review
91.
Subpart 5 lists the
procedures for review under the AUAR process.
The Board seeks to amend item A as follows:
The RGU shall prepare a draft environmental analysis
document addressing each of the development scenarios selected under subpart 3
using the standard content and format provided by the EQB under subpart 4. A draft version of the mitigation plan as
described under item C must be included.
The geographic extent of the analyses of direct, indirect, and
cumulative potential effects conducted in preparing the document is not to be
limited by the boundaries set in the order for review under subpart 3. The draft document must be distributed and
noticed in accordance with part 4410.1500.
92.
The Board proposed
this amendment in response to Minnesota
Center for Environmental Advocacy v. City of St. Paul Park.[107] In that case, MCEA
challenged the adequacy of an AUAR, partly on the grounds that the AUAR did not
adequately consider cumulative-type impacts on resources outside of the AUAR
boundary. The Court of Appeals decided
that the RGU did not need to consider impacts or sources outside of the AUAR
boundary on the basis that an RGU would have already factored in the complete
scope of the analysis prior to setting the AUAR boundary. The Board argues that this is not how the
AUAR process generally works and it wishes to correct what it believes is a
fundamental error by the Court by amending subpart 5, item A. The Board asserts that it is reasonable for
the cumulative impacts analysis to look beyond the AUAR boundary because
environmental impacts can migrate across boundaries.[108]
93.
The Association of
Minnesota Counties objected to this proposed amendment arguing that the rules
should require an RGU to consider the scope of the needed technical analysis
prior to setting the AUAR boundary in an effort to reduce uncertainty in the
process.[109]
94.
The Board responded
that connecting the AUAR boundary to impacts would change the current process,
making it more complex and expensive. Currently,
RGUs define the boundary based on planning and development factors, not on geographic
impact. According to the Board, the AUAR
boundary is the analogue of the property boundary for a single project so it
does not make sense to include the geographic range of the impacts in the
initial setting of the boundary.[110]
95.
The Administrative Law
Judge finds that the proposed amendment to subpart 5, item A is needed and
reasonable. The Board has demonstrated a
rational basis in the record.
Subpart
5a – Additional procedures required when certain large specific projects
reviewed
96.
Proposed subpart 5a
puts forth additional procedures that must be followed “if a specific project
will be reviewed according to this part and the project would otherwise require
preparation of an EIS . . . or will comprise at least 50 percent of the
geographic area to be reviewed.” The
additional procedures consist of notice and comment by the public, guidance on
the purpose of the comments, criteria for review, and a deadline for the RGU’s
final decision.[111]
97.
The Builders’
Association of the Twin Cities (BATC) opposed the inclusion in this subpart of
situations where any single project would cover at least 50 percent of the
geographic area of the AUAR. BATC argues
that the current rules already determine which projects of a certain scale
warrant further environmental review, and that the proposed subpart 5a subjects
all projects to an EIS-type review for no reason other than the area the
project covers.[112] In response, the
Board reiterated the arguments in the SONAR and argued that the new language
seeks to improve the analysis of alternatives where the AUAR involves large
specific projects.[113]
98.
MCEA largely supported
proposed subpart 5a, but objected that the Board was attempting to limit the
types of comments made by the public, thereby restricting and burdening public
participation.[114] The Board responded
that it was not attempting to limit public comment, but to guide the public in making
useful comments for the RGU. Under the
proposed subpart, members of the public are still free to comment as they wish
without restriction, and the plain language of the proposed rules requires the
RGU to consider all timely and substantive comments.[115]
99.
Proposed subpart 5a
describes a thorough public process to analyze these types of AUAR situations
while providing guidance to the public on how to most effectively
participate. Accordingly, the Board has
shown that subpart 5a is needed and reasonable.
Part 4410.4300 – Mandatory EAW Categories
Subpart 19a – Residential development in
shoreland
100. The proposed amendments to part 4410.4300 add mandatory EAW categories to the rules that explicitly address different types of projects in shoreland areas that may have the potential for significant environmental effects. Subpart 19a specifically addresses residential development in shoreland areas and describes the types of residential development, “located wholly or partially in shoreland,” that require an EAW. The local governmental unit continues to be the RGU for these types of projects.[116]
101. This proposed subpart, specifically item B, received criticism from the Kandiyohi County Zoning Administrator as it relates to traditional lot-and-block developments. The County argues that the effect of the proposed rule is to cut in half the threshold for mandatory EAW for these types of developments, thereby providing a disincentive to build them. The County also objected to the use of the terms “dense” and “high density” in the SONAR in relation to developments.[117]
102.
103. During the public hearings, one of the issues discussed by the EQB and some commentators was how the mandatory category thresholds would be applied if a project was partially in and partially out of a sensitive shoreland area. In response to these comments, the EQB wishes to add directions to the proposed rules for how to address these situations; such directions parallel the procedure in place under subpart 19 (Residential development) of the current rules. The EQB proposes to add the following language at the end of proposed item A:
If the project is located partially in a sensitive shoreland area and partially in nonsensitive shoreland areas, an EAW must be prepared if the sum of the quotient obtained by dividing the number of units in the sensitive shoreland area by the applicable sensitive shoreland area threshold, plus the quotient obtained by dividing the number of units in nonsensitive shoreland areas by the applicable nonsensitive shoreland area threshold, equals or exceeds one. If a project is located partially in shoreland and partially not in shoreland, an EAW must be prepared if the sum of the quotients obtained by dividing the number of units in each type of area by the applicable threshold for each area, equals or exceeds one.[120]
104. Henry VanOffelen, a natural resource scientist with MCEA responded to the Board’s additional proposed language by suggesting that it be simplified in the following manner:
If a project is located partially in a sensitive shoreland area and partially in a nonsensitive area, an EAW must be prepared based on the thresholds established for sensitive shoreland areas. If a project is located partially in a shoreland area and partially not in a shoreland area, an EAW must be prepared based on the thresholds established for shoreland areas.[121]
105. Other commentators questioned whether the common open space and unit density criteria used in this category are appropriate to projects located in urbanized areas.[122] The Board consulted with the DNR on this question because the DNR is in the process of developing shoreland rule amendments and the Board wishes to be consistent with the DNR on this topic. The DNR, however, has not yet completed its rule development. Accordingly, and in response to the concerns of the commentators, the Board wishes to amend the rule caption of subpart 19a to read: “Residential development in shoreland outside of the seven-county Twin Cities metropolitan area.” Likewise, the Board seeks to add the same phrase to item A as follows: “A local governmental unit is the RGU for construction of a permanent or potentially permanent residential development located wholly or partially in shoreland outside the seven-county Twin Cities metropolitan area of a type listed in items B to E.”[123]
106.
The Administrative Law Judge finds that all of
the proposed clarifications to subpart 19a are reasonably within the scope of
the originally proposed rule and preserve the goals of the original
change. The changes are reasonable and
necessary and do not make subpart 19a substantially different than originally
published in the State Register.
Subpart
20a – Resorts, campgrounds, and RV parks in shorelands
107. Subpart 20a is another of the new mandatory EAW categories that explicitly address different types of projects in shoreland areas that may have the potential for significant environmental effects. This subpart addresses “construction or expansion of a resort or other seasonal or permanent recreational development located wholly or partially in shoreland, accessible by vehicle.”[124]
108. As noted in the subpart 19a discussion above, a question was raised at the hearing about how the mandatory category thresholds would be applied if a project was partially in and partially out of a sensitive shoreland area. In response to these comments, the EQB wishes to make a similar addition to the proposed subpart 20a for how to address these situations. The EQB proposes to add the following language at the end of subpart 20a:
If the project is located partially in a sensitive shoreland area and partially in nonsensitive shoreland areas, an EAW must be prepared if the sum of the quotient obtained by dividing the number of units in the sensitive shoreland area by the applicable sensitive shoreland area threshold, plus the quotient obtained by dividing the number of units in nonsensitive shoreland areas by the applicable nonsensitive shoreland area threshold, equals or exceeds one. If a project is located partially in shoreland and partially not in shoreland, an EAW must be prepared if the sum of the quotients obtained by dividing the number of units in each type of area by the applicable threshold for each area, equals or exceeds one.[125]
109.
The Administrative Law Judge finds that this clarification
is reasonably within the scope of the originally proposed rule and preserves
the goals of the original change. The
new proposed category and the changes are reasonable and necessary and do not
make subpart 20a substantially different.
Subpart
36a – Land conversions in shorelands
110.
The Board wishes to make the following
clarification to item A of its new mandatory EAW category regarding land
conversions in shorelands: “For a
project that alters 800 feet or more of the shoreline in a sensitive
shoreland area or 1,320 feet or more of shoreline in a nonsensitive
shoreland area, the local government unit is the RGU.”[126]
111.
The Administrative Law
Judge finds that this additional clarification is needed and reasonable, and it
does not make subpart 36a substantially different than originally published in
the State Register.
Part 4410.4400 – Mandatory EIS Categories
Subpart
14a – Residential development in shoreland
112. The proposed amendments to part 4410.4400 add mandatory EIS categories to the rules that explicitly address different types of projects in shoreland areas that may have the potential for significant environmental effects. These proposed categories reflect the proposed mandatory EAW categories in part 4410.4300. Subpart 14a specifically addresses residential development in shoreland areas and describes the types of residential development, “located wholly or partially in shoreland,” that require an EIS. The local governmental unit continues to be the RGU for these types of projects.[127]
113. As was discussed at part 4410.4300, subpart 19a above, the issue was discussed at the public hearings about how the mandatory category thresholds would be applied if a project was partially in and partially out of a sensitive shoreland area. Because subpart 14a is the EIS equivalent of part 4410.4300, subpart 19a, regarding EAWs, the EQB wishes to make the same additions to subpart 14a as proposed above for subpart 19a. The EQB proposes to add the following language at the end of proposed item A:
If the project is located partially in a sensitive shoreland area and partially in nonsensitive shoreland areas, an EIS must be prepared if the sum of the quotient obtained by dividing the number of units in the sensitive shoreland area by the applicable sensitive shoreland area threshold, plus the quotient obtained by dividing the number of units in nonsensitive shoreland areas by the applicable nonsensitive shoreland area threshold, equals or exceeds one. If a project is located partially in shoreland and partially not in shoreland, an EIS must be prepared if the sum of the quotients obtained by dividing the number of units in each type of area by the applicable threshold for each area, equals or exceeds one.[128]
114. Similarly, the Board wishes to amend the rule caption of subpart 14a to read: “Residential development in shoreland outside of the seven-county Twin Cities metropolitan area.” Likewise, the Board seeks to add the same phrase to item A as follows: “A local governmental unit is the RGU for construction of a permanent or potentially permanent residential development located wholly or partially in shoreland outside the seven-county Twin Cities metropolitan area of a type listed in items B to E.”
115.
The Administrative Law Judge finds that these clarifications
are reasonably within the scope of the originally proposed rule and preserve
the goals of the original change. The
changes are reasonable and necessary and do not make subpart 14a substantially
different than originally published in the State Register.
Subpart
26 – Resorts, campgrounds, and RV parks in shorelands
116. Proposed subpart 26 is another of the new mandatory EIS categories that explicitly address different types of projects in shoreland areas that may have the potential for significant environmental effects. This subpart addresses “construction or expansion of a resort or other seasonal or permanent recreational development, accessible by vehicle.”[129] Proposed subpart 26 is the EIS equivalent of proposed part 4410.4300, subpart 20a, thus, the Board wishes to make the same changes to subpart 26 as addressed above in the discussion of part 4410.4300, subpart 20a.[130] The Board proposes to add the following language at the end of subpart 26:
If the project is located partially in a sensitive shoreland area and partially in nonsensitive shoreland areas, an EIS must be prepared if the sum of the quotient obtained by dividing the number of units in the sensitive shoreland area by the applicable sensitive shoreland area threshold, plus the quotient obtained by dividing the number of units in nonsensitive shoreland areas by the applicable nonsensitive shoreland area threshold, equals or exceeds one. If a project is located partially in shoreland and partially not in shoreland, an EIS must be prepared if the sum of the quotients obtained by dividing the number of units in each type of area by the applicable threshold for each area, equals or exceeds one.[131]
117.
The Administrative Law
Judge suggests a technical correction to subpart 26 so that it is consistent
with the proposed language of parts 4410.4300, subparts 19a and 20a, and
4410.4400, subpart 14a, as follows:
For construction or expansion of a resort or other seasonal
or permanent recreational development located wholly or partially in
shoreland, accessible by vehicle, adding 100 or more units or sites in a
sensitive shoreland area or 200 or more units or sites in a nonsensitive
shoreland area, the local governmental unit is the RGU.
118.
The Administrative Law Judge finds that this clarification
is reasonably within the scope of the originally proposed rule and preserves
the goals of the original change. The
new proposed category and the changes are reasonable and necessary and do not
make subpart 26 substantially different from the rules as originally published
in the State Register.
Part 4410.4300, subpart 12 – Nonmetallic mineral mining
Part 4410.4400, subpart 9 – Nonmetallic
mineral mining
119.
Henry VanOffelen of
the MCEA encouraged the EQB to apply stronger standards to this type of mining.[132] But the EQB is not
proposing such a change now. It is
merely providing a convenient restatement of proposed parts 4410.4300, subpart
36a, item C, and 4410.4400, subpart 27, both of which are based on existing
rule language.[133]
120.
The MCEA’s suggestions,
including those of Mr. VanOffelen, for the entire group of proposed rules would
make the environmental review rules more protective of the environment and more
onerous for project developers. The EQB
has balanced the various interests and adopted more moderate positions that are
not unreasonable.
Part 4410.4600, subpart 26 – Exemptions;
Governmental activities
121. The EQB proposed the following amendment to subpart 26:
Proposals and enactments of the legislature, rules or orders of governmental units, adoption and amendment of comprehensive and other plans, zoning ordinances, or other official controls by local governmental units, rezoning actions by a local governmental unit unless the action would be primarily for the benefit of a specific project or projects, adoption and amendment of plans by state agencies, executive orders of the governor or their implementation by governmental units, judicial orders, and submissions of proposals to a vote of the people of the state are exempt.
122. The EQB argues that it has a long-standing interpretation that quasi-legislative actions are not subject to the environmental review program. This distinction draws a line between “projects” and “plans,” the former being subject to the program and the latter not being subject to the program. By adding this proposed language to subpart 26, the EQB is attempting to remedy a discrepancy regarding the definition of “project” at part 4410.0200, subpart 65, and the governmental activities currently listed at subpart 26. The discrepancy involves, in part, whether the results of the project would cause physical manipulation of the environment, directly or indirectly. According to the EQB, this distinction is supported by the Court of Appeals’ decision in Minnesotans for Responsible Recreation v. Department of Natural Resources & All-Terrain Vehicle Association of Minnesota.[134]
123. MCEA, as well as other commentators, strongly objected to the proposed amendment to subpart 26. “The exclusion from environmental review of governmental actions is unprecedented and MCEA strongly objects to this portion of the proposed rule as contrary to MEPA, both in letter and in purpose.”[135] MCEA also suggests that the proposed amendment is inconsistent with the AUAR process in these rules, which is intended to apply environmental review to those types of planning and zoning decisions that are proposed to be excluded from review in subpart 26. All governmental action that has the potential to affect the environment, directly or indirectly, must undergo environmental review.[136]
124.
In response, the EQB referred to the discussion
in the SONAR and reiterated that the proposed amendment to subpart 26 is
consistent with 35 years of Board precedent.
The EQB acknowledges that its environmental review program is different
than NEPA and “mini-NEPA” review programs of some other states, but asserts
that
125.
The Administrative Law
Judge finds that the proposed amendment to subpart 26 is needed and
reasonable. The Board has demonstrated a
rational basis for the change in the record.
126. The EQB has, through the SONAR, exhibits, oral testimony, Response, and Rebuttal demonstrated that the proposed amendments, including the proposed changes to rule language presented in its Response and Rebuttal, are needed and reasonable.
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:
1. The Board gave proper notice in this matter. The Board has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural requirements of law or rule.
2. The Board has demonstrated its statutory authority to adopt the proposed rules, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§ 14.05, subd. 1; 14.15, subd. 3; and 14.50 (i) and (ii).
3. The Board has demonstrated the need for and reasonableness of the proposed rules by an affirmative presentation of facts in the record within the meaning of Minn. Stat. §§ 14.14, subd. 4; and 14.50 (iii).
4. The additions and amendments to the proposed rules suggested by the Board after publication of the proposed rules in the State Register are not substantially different from the proposed rules as published in the State Register within the meaning of Minn. Stat. §§ 14.05, subd. 2, and 14.15, subd. 3.
5. Any Findings that might properly be termed Conclusions and any Conclusions that might properly be termed Findings are hereby adopted as such.
6. A Finding or Conclusion of need and reasonableness with regard to any particular rule subsection does not preclude and should not discourage the Board from further modification of the proposed rules based upon further examination of the public comments, provided that the rule finally adopted is based upon facts appearing in this rule hearing record.
IT IS HEREBY RECOMMENDED that the proposed
rules, as modified by the Board, be adopted.
Dated: May 7, 2009
/s/ Steve M. Mihalchick
______________________
STEVE M. MIHALCHICK
Administrative Law Judge
Recorded: Transcript Prepared (6 volumes)
Kirby A. Kennedy & Associates
The Board must make this Report available for review by anyone who wishes to review it for at least five working days before the Board takes any further action to adopt final rules or to modify or withdraw the proposed rules. If the Board makes changes in the rules, it must submit the rules, along with the complete hearing record, to the Chief Administrative Law Judge for a review of those changes before it may adopt the rules in final form.
After adopting the final version of the rules, the Board must send the order adopting rules to the Administrative Law Judge. Provided that the Board has taken all of the required steps to adopt the rule, the Office of Administrative Hearings will request certified copies of the rule from the Revisor of Statutes and file them with the Secretary of State.
[1]
The
[2]
[3] See Laws of Minnesota 2007, chapter 57, article 1, section 141.
[4] 31 SR 215 (August 14, 2006); see also, Ex. 1.
[5] 31 SR 751 (December 11, 2006), see also, Ex. 2; 31 SR 1807 (June 18, 2007), see also, Ex. 3; 32 SR 2094 (May 27, 2008), see also, Ex. 4.
[6] Ex. 6 (SONAR), Supplement #2.
[7]
[8] Ex. 12.
[9] 33 SR 1243 (January 20, 2009), see also Ex. 11.
[10] Ex. 1, 31 S.R. 215.
[11] Ex. 2, 31 S.R. 751.
[12] Ex. 3, 31 S.R. 1807.
[13] Ex. 4, 32 S.R. 2094.
[14] Ex. 5.
[15] Ex. 6.
[16] Ex. 6A.
[17] Ex. 6B.
[18] Ex. 6C.
[19] Ex. 6D.
[20] Ex. 6E.
[21] Ex. 7, June 24, 2005.
[22]
Ex. 8, 713 N.W. 2d 817 (
[23] Ex. 9.
[24] Ex. 10.
[25] Ex. 11, 33 S.R. 1243.
[26] Ex. 12.
[27] Ex. 13.
[28] Ex. 14.
[29] Ex. 15.
[30] Ex. 16A.
[31] Ex. 16B.
[32] Ex. 16C.
[33] Ex. 17.
[34] Ex. 18.
[35] Ex. 19.
[36] Ex. 20.
[37] Ex. 21A.
[38] Ex. 21B.
[39] Ex. 21C.
[40] Ex. 21D.
[41] Ex. 21E.
[42] http://www.eqb.state.mn.us/resource.html?Id=19877.
[43] See, Exs. 14-18.
[44]
[45] SONAR at 3-4.
[46] SONAR at 4-5.
[47] SONAR at 5-6.
[48] SONAR at 5-6.
[49] SONAR at 6.
[50] SONAR at 6-12. See also, Exs. 6B, 6C, 6D, and 6E.
[51] SONAR at 12-14.
[52] SONAR at 14-15.
[53] SONAR at 15.
[54] Minn. Stat. § 14.127, subd. 1.
[55]
[56] SONAR at 16.
[57] SONAR, Supplement #2.
[58]
Minn. Stat. § 14.14, subd. 2;
[59] Mammenga v. Dept. of Human Services, 442
N.W.2d 786 (
[60] In re Hanson, 275 N.W.2d 790 (
[61] Greenhill v. Bailey, 519 F.2d 5, 19 (8th Cir. 1975).
[62] Mammenga, 442 N.W.2d at 789-90; Broen Mem’l Home v.
[63] Manufactured Hous. Inst. v. Pettersen, 347 N.W.2d at 244.
[64] Federal Sec. Adm’r v. Quaker Oats Co.,
318
[65]
[66] 713 N.W.2d 817 (
[67] EQB Staff Rebuttal Period Responses to Comments, April 1, 2009 (EQB Rebuttal), at 5.
[68] Exs. 21B, 21D.
[69] EQB Rebuttal, at 5.
[70] Public Comment 5 (Builders Association of the Twin Cities); Public Comment 1 (Association of Minnesota Counties); Mike Robertson, Minnesota Chamber of Commerce, letter dated March 25, 2009.
[71] EQB Rebuttal at 4.
[72] Mike Robertson, Minnesota Chamber of Commerce, letter dated March 25, 2009; Public Comment 1 (Builders Association of the Twin Cities); and Public Comment 5 (Association of Minnesota Counties).
[73] Mike Robertson, Minnesota Chamber of Commerce, letter dated March 25, 2009.
[74] SONAR at 21.
[75] EQB Rebuttal at 6-7.
[76] Mike Robertson, Minnesota Chamber of Commerce, letter dated March 25, 2009.
[77] SONAR at 21.
[78] EQB Rebuttal at 7.
[79] Public Comment 5 (Builders Association of the Twin Cities); Public Comment 1 (Association of Minnesota Counties).
[80] SONAR at 22-23; see also, EQB Rebuttal at 7.
[81] EQB Staff Responses to Comments, March 25, 2009 (EQB Response), at 1.
[82] SONAR at 24.
[83] See, EQB Response at 1.
[84] SONAR at 24-25.
[85] Henry VanOffelen letter dated March 25, 2009.
[86] EQB Rebuttal at 8.
[87] See, EQB Response at 2.
[88] SONAR at 26.
[89]
[90] EQB Response at 2.
[91] SONAR at 26-27.
[92] MCEA letter dated March 25, 2009, at 19-20.
[93] EQB Rebuttal at 8-9.
[94] SONAR at 28-29.
[95] MCEA letter dated March 25, 2009, at 15-16. See also, Fort Snelling Hearing Transcript at 81-85.
[96] EQB Rebuttal at 9-10.
[97] MCEA letter dated March 25, 2009, at 17-18.
[98] Mike Robertson, Minnesota Chamber of Commerce, letter dated March 25, 2009.
[99] EQB Rebuttal at 10.
[100] SONAR at 31-32.
[101] MCEA letter dated March 25, 2009, at 2-4. See also, Fort Snelling Hearing Transcript at 80-81.
[102] EQB Rebuttal at 11-13.
[103] SONAR at 34.
[104] SONAR at 33.
[105] MCEA letter dated March 25, 2009, at 10-12. See also, Fort Snelling Hearing Transcript at 85-89.
[106] EQB Response at 4.
[107]
711 N.W.2d 526 (
[108] SONAR at 36-37.
[109] Public Comment 5 (attached letter dated June 20, 2007).
[110] EQB Response at 5.
[111] SONAR at 38-39.
[112] Public Comment 1.
[113] EQB Response at 5-6.
[114] MCEA letter dated March 25, 2009, at 14-15. See also, Fort Snelling Hearing Transcript at 90-92.
[115] EQB Rebuttal at 13-14.
[116] SONAR at 39, 43-44.
[117] Public Comment 4.
[118]
City of
[119] EQB Rebuttal at 15.
[120] EQB Response at 2.
[121] Henry VanOffelen letter dated April 1, 2009.
[122]
City of
[123] EQB Rebuttal at 1-2.
[124] SONAR at 49-50.
[125] EQB Response at 2-3.
[126] EQB Response at 3.
[127] SONAR at 51-55.
[128] EQB Response at 3.
[129] SONAR at 55.
[130] EQB Response at 3.
[131] EQB Response at 3.
[132] Henry VanOffelen letter dated March 25, 2009, at 3.
[133] See, SONAR at 42-43, 50-51, 52, and 55.
[134] 651 N.W.2d 533 (Minn. Ct. App. 2002); see also, SONAR at 58-59.
[135] MCEA letter dated March 25, 2009, at 18-19. See also, Fort Snelling Hearing Transcript at 92-94.
[136] MCEA letter dated March 25, 2009, at 18-19.
[137] EQB Rebuttal at 16; see also, EQB Response at 7-8.