Update of Minnesota Environmental Review Rules
2009 Environmental Quality
Board Update:
Environmental Review
Program Rules
Gregg Downing, EQB Staff
MSBA Seminar, 11-18-09
Rule Amendments Status
- Notice of rule adoption appeared in Nov 16, 2009 State Register.
- Rules go into effect November 23
- Revisor will soon post amended rules; in meantime can refer to Notice of Adoption and Notice of Hearing (Jan 20, 2009 State Register) to see complete amended text.
- EQB will post links to Revisor’s rules
4 major topics addressed:
- Mandatory EAW/EIS categories for projects in shorelands
- Revised treatment of "cumulative potential effects" throughout rules
- Revisions to Alternative Urban Areawide Review (AUAR) process
- Miscellaneous other revisions
Cumulative Potential Effects
- EQB’s response to CARD decision (Citizens Advocating Responsible Development v. Kandiyohi County, 713 N.W.2d 817 (Minn. 2006)
- CARD case involved legal challenge to County’s decision that ElS not needed for 2 gravel mines
- Case went all way to Supreme Court
- Amendments consistent with CARD but take some concepts a step further and address other issues re cumulative potential effects as well
CARD case
- Court distinguished between broad scope for "cumulative impact" as used in rules for Generic ElSs and narrower scope for "cumulative potential effects" as used in rules associated with specific projects.
- Court stated geographic and temporal limits that apply in review of specific projects
Supreme Court interpretation
ln review of specific projects, RGU’s examination of other projects islimited to:
- Geographic limits: "projects in the surrounding area that might reasonably be expected to affect same natural resources"
- Temporal limits: "specific projects actually planned or for which a basis of expectation has been laid"
EQB’s CPE amendments
- Retain defn of "cumulative impacts" & use re GEISs
- Add defn for "cumulative potential effects" CPE = combined effects of project plus those of other projects in environmentally-relevant area that may affect same environmental resources (note: changed from CARD’s "surrounding area")
- Provide guidance on how to treat past projects in cumulative effects analysis- consider their current aggregate effects
- List factors indicative of "basis of expectation" for future projects
- Permit applications, detailed plans prepared
- Comprehensive plan, zoning indications
- Historic trend projections/forecasts
- List factors for RGU to consider re CPE when making discretionary EIS need decision:
- Significance of total cumulative effect
- Contribution of project in context of all other contributions
- Compliance with official plan addressing the cumulative effect
- Proposer’s efforts to minimize contribution
- Add explicit reference to cumulative potential effects in contents of EAW, EIS & AUAR
- Correct Appeals Court error in /I/ICEA vs. City of South St. Paul (April 4, 2006) re CPE in AUAR reviews
EQB’s CPE amendments
EQB’s CPE amendments
EQB’s CPE amendments
AUAR process amendments
Two major amendments:
- If AUAR includes a large specific project add a required "scoping process" at beginning
- Correct Court of Appeals "mistake" in River’s Edge case: declare that AUAR boundary is not the limit for analysis of impacts
AUAR process amendments
- Provide procedure by which small project that otherwise does not require review to be "dropped out" of an ongoing AUAR
Shoreland Amendments
New Mandatory EAW & EIS Categories for:
- Residential development in shorelands except in the 7 county Twin Cities metro area (leaving out metro area was only major revision due to comments)
- Resorts, campgrounds & RV parks in shorelands
- Land alterations in shoreland New Shoreland Categories
- Will affect residential, resort, RV parks, campgrounds, commercial, & aggregate mining projects in shoreland
- Some residential thresholds as low as 15 lots/units (currently 50 is lowest)
- Likely cause substantially more EAWs & ElSs - may cause shift to "greener" design
New Shoreland Categories
- Thresholds vary according to density of
- project and whether in a "sensitive" area
- Density refers to % common open space and #lots compared to SL rule standards
- "Sensitive SL area" = Natural Environment + designated trout, wildlife, migratory waterfowl & other special waters
New Residential Exemption in Shoreland
- Exempts residential developments in shoreland if less than 10 units/lots and all land within 300 feet of water preserved as common open space
Other amendments
- New mandatory EIS category with EQB as RGU for releases of genetically- engineered wild rice (2007 Legislative directive)
- Clarify that adoption/amendment of Comp Plans and zoning ordinances & rezoning (unless for benefit of specific project) are exempt governmental activities
Other developments
- Updated guidance - new (2010 Edition) Guide to MN Environmental Review Ru/es
- Revised EAW form and EAW Guidelines:
- Include new questions relating to shoreland impacts and updated treatment of cumulative potential effects
- MPCA ER Streamlining report for 2010 Legislature on options for streamlining ER (without reducing effectiveness)
- may lead to Legislative consideration of changes to ER
- MPCA has received many "angry" comments from public
This content is not meant to constitute advice of any kind, including without limitation, legal advice of any kind. If you require advice in relation to any legal matter you should consult an appropriately qualified lawyer.
