Groundwater Protection (Minnesota Statutes: Chapter 103H)

CHAPTER 103H​ GROUNDWATER PROTECTION​ GENERAL PROVISIONS​ DEGRADATION PREVENTION GOAL.​103H.001​ DEFINITIONS.​103H.005​ PROTECTING SENSITIVE AREAS​ PROTECTING SENSITIVE AREAS.​103H.101​ CONSERVATION EASEMENTS TO PROTECT​ SENSITIVE AREAS.​ 103H.105​ LIABILITY AFTER PROTECTION OF SENSITIVE​ AREA.​ 103H.111​ BEST MANAGEMENT PRACTICES.​103H.151​ GROUNDWATER QUALITY MONITORING​ GROUNDWATER QUALITY MONITORING.​103H.175​ HEALTH RISK LIMITS​ HEALTH RISK LIMITS.​103H.201​ EVALUATING DETECTION OF AND MANAGING POLLUTION​ EVALUATING DETECTION OF POLLUTANTS.​103H.251​ MANAGING POLLUTANTS WHERE​ GROUNDWATER IS POLLUTED.​ 103H.275​ SUPPLEMENTAL AUTHORITY.​103H.280​ GENERAL PROVISIONS​ 103H.001 DEGRADATION PREVENTION GOAL.​ It is the goal of the state that groundwater be maintained in its natural condition, free from any degradation​ caused by human activities. It is recognized that for some human activities this degradation prevention goal​ cannot be practicably achieved. However, where prevention is practicable, it is intended that it be achieved.​ Where it is not currently practicable, the development of methods and technology that will make prevention​ practicable is encouraged.​ History: 1989 c 326 art 1 s 1​ 103H.005 DEFINITIONS.​ Subdivision 1. Applicability. The definitions in this section apply to this chapter.​ Subd. 2. Agricultural chemical. "Agricultural chemical" means a pesticide, fertilizer, plant amendment,​ or soil amendment.​ Subd. 3. Health risk limits. "Health risk limits" means a concentration of a substance or chemical​ adopted by rule of the commissioner of health that is a potential drinking water contaminant because of a​ systemic or carcinogenic toxicological result from consumption.​ Subd. 4. Best management practices. "Best management practices" means practicable voluntary​ practices that are capable of preventing and minimizing degradation of groundwater, considering economic​ factors, availability, technical feasibility, implementability, effectiveness, and environmental effects. Best​ management practices apply to schedules of activities; design and operation standards; restrictions of​ practices; maintenance procedures; management plans; practices to prevent site releases, spillage, or leaks;​ application and use of chemicals; drainage from raw material storage; operating procedures; treatment​ requirements; and other activities causing groundwater degradation.​ Subd. 5. Common detection. "Common detection" means detection of a pollutant that is not due to​ misuse or unusual or unique circumstances, but is likely to be the result of normal use of a product or a​ practice.​ Subd. 6. Degradation. "Degradation" means changing groundwater from its natural condition by human​ activities.​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 103H.005​MINNESOTA STATUTES 2018​1​ Subd. 7. Fertilizer. "Fertilizer" has the meaning given in section 18C.005, subdivision 11.​ Subd. 8. Groundwater. "Groundwater" means groundwater as defined in section 115.01, subdivision​ 6.​ Subd. 9. Pesticide. "Pesticide" has the meaning given in section 18B.01, subdivision 18.​ Subd. 10. Plant amendment. "Plant amendment" has the meaning given in section 18C.005, subdivision​ 25.​ Subd. 11. Pollutant. "Pollutant" means a chemical or substance for which a health risk limit has been​ adopted.​ Subd. 12. Pollution. "Pollution" means degradation of groundwater by a pollutant.​ Subd. 13. Sensitive area. "Sensitive area" means a geographic area defined by natural features where​ there is a significant risk of groundwater degradation from activities conducted at or near the land surface.​ Subd. 14. Soil amendment. "Soil amendment" has the meaning given in section 18C.005, subdivision​ 34.​ Subd. 15. Water resource protection requirements. "Water resource protection requirements" means​ requirements adopted by rule for one or more pollutants intended to prevent and minimize pollution of​ groundwater. Water resource protection requirements include design criteria, standards, operation and​ maintenance procedures, practices to prevent releases, spills, leaks, and incidents, restrictions on use and​ practices, and treatment requirements.​ History: 1989 c 326 art 1 s 2​ PROTECTING SENSITIVE AREAS​ 103H.101 PROTECTING SENSITIVE AREAS.​ Subdivision 1. Criteria for determining sensitive areas. The commissioner of natural resources in​ consultation with the Minnesota Geological Survey, soil and water conservation districts, local water planning​ authorities, and other interested parties shall develop specific criteria for identifying sensitive groundwater​ areas and adopt the criteria by rule.​ Subd. 2. Identifying sensitive areas. The commissioner of natural resources shall, in consultation with​ the Minnesota Geological Survey, identify the location of sensitive areas by mapping and other appropriate​ methods after consulting the Minnesota Geological Survey, soil and water conservation districts, and local​ water planning authorities.​ Subd. 3. Location of sensitive areas; notice. The commissioner of natural resources shall:​ (1) notify political subdivisions with planning or zoning authority and provide maps and other materials​ that show where sensitive areas are located and indicate the type of risk of groundwater degradation that​ may occur from activities at or near the surface; and​ (2) publish notification of sensitive areas in a newspaper of general circulation in the county where the​ sensitive areas are located.​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 2​MINNESOTA STATUTES 2018​103H.005​ Subd. 4. Information gathering. The commissioner of natural resources shall coordinate the collection​ of state and local information to identify sensitive areas. Information must be automated on or accessible to​ systems developed at the Minnesota Geospatial Information Office.​ Subd. 5. State protection of sensitive areas. (a) The commissioner of agriculture for pollution resulting​ from agricultural chemicals and practices and the Pollution Control Agency for other pollutants must consider​ the type of risk identified under subdivision 3 when adopting best management practices, water resource​ protection plans, and water resource protection requirements to prevent and minimize groundwater degradation​ in sensitive areas.​ (b) To prevent and minimize groundwater degradation, state agencies must consider the type of risk​ identified under subdivision 3 when undertaking an activity within a sensitive area.​ Subd. 6. Actions by regulating authorities. Upon adoption of a comprehensive local water plan as​ defined in section 103B.101 to 103B.355 or a water management plan under chapter 473 or sections 103B.201​ to 103B.255, a regulating authority must take into account the plan and any geological assessments referenced​ in the plan when taking appropriate actions in sensitive areas.​ Subd. 7. State agencies. Each state agency that has a program affecting activities that may cause or​ contribute to groundwater pollution shall identify and develop best management practices to ensure that the​ program is consistent with and is effective in achieving the goal of section 103H.001. For those activities​ which may cause or contribute to pollution of groundwater, but are not directly regulated by the state, best​ management practices shall be promoted through education, support programs, incentives, and other​ mechanisms.​ History: 1989 c 326 art 1 s 3; 1990 c 391 art 10 s 3; 1991 c 345 art 2 s 16; 2009 c 101 art 2 s 107​ 103H.105 CONSERVATION EASEMENTS TO PROTECT SENSITIVE AREAS.​ (a) Agricultural land within a sensitive area identified in section 103H.101, subdivision 2, or by the​ Board of Water and Soil Resources and land in or immediately surrounding a sinkhole is marginal agricultural​ land for purposes of section 103F.515, subdivision 2, and is eligible for the reinvest in Minnesota reserve​ program under section 103F.515.​ (b) Notwithstanding section 103F.515, subdivision 2, paragraph (c), clauses (1) and (4), and subdivision​ 4, the Board of Water and Soil Resources may authorize acquisition of hillside easements that restrict hillside​ pasturing or grazing of livestock.​ History: 1989 c 326 art 1 s 4; 1990 c 391 art 10 s 3; 2009 c 176 art 1 s 50​ 103H.111 LIABILITY AFTER PROTECTION OF SENSITIVE AREA.​ (a) A landowner within a sensitive area, identified under section 103H.101, has a complete defense to​ liability for degradation of groundwater caused by surface water from the sensitive area recharging​ groundwater if:​ (1) the landowner's portion of the sensitive area is subject to a plan adopted by the soil and water​ conservation district to protect the groundwater from degradation through surface water recharge;​ (2) the projects and practices required by the plan have been implemented and have been certified as​ having been implemented by the soil and water conservation district;​ (3) the projects and practices required by the plan are maintained according to the plan; and​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 103H.111​MINNESOTA STATUTES 2018​3​ (4) the landowner has not allowed unlawful practices on the property that disrupt the projects and​ practices required by the plan.​ (b) The soil and water conservation district's plan must include appropriate best management practices​ and water resource protection requirements.​ History: 1989 c 326 art 1 s 5​ 103H.151 BEST MANAGEMENT PRACTICES.​ Subdivision 1. Development by Pollution Control Agency. Except as provided in subdivision 2 for​ agricultural chemicals and practices, the Pollution Control Agency in consultation with local water planning​ authorities shall develop best management practices for the prevention of groundwater degradation for​ specific activity categories. The Pollution Control Agency shall contact and solicit comments from affected​ persons and businesses in developing the best management practices. The Pollution Control Agency must​ publish notice and also solicit comments and recommendations from state agencies and local governments​ affected by or regulating the activities.​ Subd. 2. Agricultural chemicals; best management practices. The commissioner of agriculture, in​ consultation with local water planning authorities, shall develop best management practices for agricultural​ chemicals and practices. The commissioner shall give public notice and contact and solicit comment from​ affected persons and businesses interested in developing the best management practices.​ Subd. 3. Education and promotion. The commissioners of the Pollution Control Agency and agriculture,​ in conjunction with the Board of Water and Soil Resources, soil and water conservation districts, and the​ Minnesota Extension Service, must promote best management practices and provide education about how​ the use of best management practices will prevent, minimize, reduce, and eliminate the source of groundwater​ degradation. The promotion and education shall include demonstration projects.​ Subd. 4. Evaluation. The commissioners of agriculture and the Pollution Control Agency shall, through​ field audits and other appropriate means, monitor the use and effectiveness of best management practices​ developed and promoted under this section. The information collected must be submitted to the Environmental​ Quality Board, which must include the information in the report required in section 103A.43, paragraph (d).​ History: 1989 c 326 art 1 s 6; 1995 c 220 s 94​ GROUNDWATER QUALITY MONITORING​ 103H.175 GROUNDWATER QUALITY MONITORING.​ Subdivision 1. Submitting monitoring results. The results of monitoring groundwater quality by state​ agencies and political subdivisions must be submitted to the Minnesota Geospatial Information Office.​ Subd. 2. Computerized database. Agencies monitoring groundwater shall maintain computerized​ databases of the results of groundwater quality monitoring using standards adopted by the Office of MN.IT​ Services and geospatial technology standards and guidelines published by the Minnesota Geospatial​ Information Office. The database must be accessible to the Pollution Control Agency, Department of​ Agriculture, Department of Health, and Department of Natural Resources.​ Subd. 3. Report. Every five years, the Pollution Control Agency, in cooperation with other agencies​ participating in the monitoring of water resources, shall provide a draft report on the status of groundwater​ monitoring to the Environmental Quality Board for review and then to the house of representatives and​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 4​MINNESOTA STATUTES 2018​103H.111​ senate committees with jurisdiction over the environment, natural resources, and agriculture as part of the​ report in section 103A.204.​ History: 1989 c 326 art 1 s 7; 1991 c 345 art 2 s 17,18; 1994 c 557 s 16; 1999 c 86 art 3 s 11; 2009 c​ 101 art 2 s 107; 2010 c 392 art 1 s 12; 2012 c 272 s 59; 2013 c 134 s 30; 2013 c 142 art 3 s 36​ HEALTH RISK LIMITS​ 103H.201 HEALTH RISK LIMITS.​ Subdivision 1. Procedure. (a) If groundwater quality monitoring results show that there is a degradation​ of groundwater, the commissioner of health may promulgate health risk limits under subdivision 2 for​ substances degrading the groundwater.​ (b) Health risk limits shall be determined by two methods depending on their toxicological end point.​ (c) For systemic toxicants that are not carcinogens, the adopted health risk limits shall be derived using​ United States Environmental Protection Agency risk assessment methods using a reference dose, a drinking​ water equivalent, and a relative source contribution factor.​ (d) For toxicants that are known or probable carcinogens, the adopted health risk limits shall be derived​ from a quantitative estimate of the chemical's carcinogenic potency published by the United States​ Environmental Protection Agency and determined by the commissioner to have undergone thorough scientific​ review.​ Subd. 2. Adoption. (a) Health risk limits shall be adopted by rule.​ (b) If the commissioner determines that emergency conditions exist and the public health and welfare​ require the health risk limits to be adopted as soon as possible, the commissioner shall promulgate the adopted​ health risk limits notwithstanding chapter 14 but the adopted health risk limits adopted under this paragraph​ are only effective for one year.​ Subd. 3. Review and revision. (a) The commissioner shall review each adopted health risk limit at least​ every four years.​ (b) The commissioner may revise health risk limits under subdivision 2.​ Subd. 4. Adopting existing recommended allowable limits. (a) Notwithstanding and in lieu of​ subdivision 2, until November 1, 1994, the commissioner may adopt recommended allowable limits, and​ related toxicological end points, established by the commissioner on or before February 15, 1994, as health​ risk limits under this subdivision. Before a recommended allowable limit is adopted as an adopted health​ risk limit under this subdivision, the commissioner shall:​ (1) publish in the State Register and disseminate through the Minnesota Extension Service and through​ soil and water conservation districts notice of intent to adopt a recommended allowable limit as an adopted​ health risk limit for specific substances and shall solicit information on the health impacts of the substance;​ (2) publish the recommended allowable limit in the State Register and disseminate through the Minnesota​ Extension Service and through soil and water conservation districts allowing 60 days for public comment;​ and​ (3) publish the adopted recommended allowable limit in the State Register and, at the same time, make​ available a summary of the public comments received and the commissioner's responses to the comments.​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 103H.201​MINNESOTA STATUTES 2018​5​ (b) A recommended allowable limit adopted by the commissioner as an adopted health risk limit under​ this subdivision may be challenged in the manner provided in sections 14.44 and 14.45.​ (c) During the comment period under paragraph (a), clause (2), 25 or more persons may submit a written​ request for a public hearing as provided under section 14.25 for any health risk limits as adopted under this​ subdivision.​ History: 1989 c 326 art 1 s 8; 1994 c 557 s 17,18​ EVALUATING DETECTION OF AND MANAGING POLLUTION​ 103H.251 EVALUATING DETECTION OF POLLUTANTS.​ Subdivision 1. Methods. (a) The commissioner of agriculture for pollution resulting from agricultural​ chemicals and practices and the Pollution Control Agency for other pollutants shall evaluate the detection​ of pollutants in groundwater of the state. Evaluation of the detection may include collection technique,​ sampling handling technique, laboratory practices, other quality control practices, climatological conditions,​ and potential pollutant sources.​ (b) If conditions indicate a likelihood of the detection of the pollutant or pollutant breakdown product​ to be a common detection, the commissioner of agriculture or the Pollution Control Agency must begin​ development of best management practices and continue to monitor for the pollutant or pollutant breakdown​ products.​ Subd. 2. Analysis of pollution trend. The commissioner of agriculture for pollution resulting from​ agricultural chemicals and practices and the Pollution Control Agency for other pollutants shall develop and​ implement groundwater monitoring and hydrogeologic evaluation following pollution detection to evaluate​ pollution frequency and concentration trend. Assessment of the site-specific and pollutant-specific conditions​ and the likelihood of common detection must include applicable monitoring, pollutant use information,​ physical and chemical properties of the pollutant, hydrogeologic information, and review of information​ and data from other local, state, or federal monitoring databases.​ History: 1989 c 326 art 1 s 9​ 103H.275 MANAGING POLLUTANTS WHERE GROUNDWATER IS POLLUTED.​ Subdivision 1. Areas where groundwater pollution is detected. (a) If groundwater pollution is detected,​ a state agency or political subdivision that regulates an activity causing or potentially causing a contribution​ to the pollution identified shall promote implementation of best management practices to prevent or minimize​ the source of pollution to the extent practicable.​ (b) The Pollution Control Agency, or for agricultural chemicals and practices, the commissioner of​ agriculture may adopt water source protection requirements under subdivision 2 that are consistent with the​ goal of section 103H.001 and are commensurate with the groundwater pollution if the implementation of​ best management practices has proven to be ineffective.​ (c) The water resources protection requirements must be:​ (1) designed to prevent and minimize the pollution to the extent practicable;​ (2) designed to prevent the pollution from exceeding the health risk limits; and​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 6​MINNESOTA STATUTES 2018​103H.201​ (3) submitted to the house of representatives and senate committees with jurisdiction over the environment,​ natural resources, and agriculture.​ Subd. 2. Adopting water resource protection requirements. (a) The Pollution Control Agency, or for​ agricultural chemicals and practices, the commissioner of agriculture shall adopt by rule water resource​ protection requirements that are consistent with the goal of section 103H.001 to prevent and minimize the​ pollution to the extent practicable. The proposed rule must be submitted to the house of representatives and​ senate committees with jurisdiction over the environment, natural resources, and agriculture before adoption.​ The water resource protection requirements must be based on the use and effectiveness of best management​ practices, the product use and practices contributing to the pollution detected, economic factors, availability,​ technical feasibility, implementability, and effectiveness. The water resource protection requirements may​ be adopted for one or more pollutants or a similar class of pollutants. A water resource protection requirement​ may not be adopted before January 1, 1991.​ (b) Before the water resource protection requirements are adopted, the Pollution Control Agency or the​ commissioner of agriculture for agricultural chemicals and practices must notify affected persons and​ businesses for comments and input in developing the water resource protection requirements.​ (c) Unless the water resource protection requirements are to cover the entire state, the water resource​ protection requirements are only effective in areas designated by the commissioner of the Pollution Control​ Agency by order or for agricultural chemicals and practices in areas designated by the commissioner of​ agriculture by order. The procedures for issuing the order and the effective date of the order must be included​ in the water resource protection requirements rule.​ (d) The water resource protection requirements rule must contain procedures for notice to be given to​ persons affected by the rule and order of the commissioner. The procedures may include notice by publication,​ personal service, and other appropriate methods to inform affected persons of the rule and commissioner's​ order.​ (e) A person who is subject to a water resource protection requirement may apply to the Pollution Control​ Agency, or for agricultural chemicals and practices the commissioner of agriculture, and suggest an alternative​ protection requirement. Within 60 days after receipt, the agency or commissioner of agriculture must approve​ or deny the request. If the Pollution Control Agency or commissioner of agriculture approves the request,​ an order must be issued approving the alternative protection requirement.​ (f) A person who violates a water resource protection requirement relating to pollutants, other than​ agricultural chemicals, is subject to the penalties for violating a rule adopted under chapter 116. A person​ who violates a water resource protection requirement relating to agricultural chemicals and practices is​ subject to the penalties for violating a rule adopted under chapter 18D.​ History: 1989 c 326 art 1 s 10; 1999 c 86 art 3 s 12​ 103H.280 SUPPLEMENTAL AUTHORITY.​ The authority of the Pollution Control Agency and the commissioner of agriculture in this chapter is​ supplemental to other authority given by law and does not restrict other authorities.​ History: 1989 c 326 art 1 s 11​ Copyright © 2018 by the Revisor of Statutes, State of Minnesota. All Rights Reserved.​ 103H.280​MINNESOTA STATUTES 2018​7​