The U.S. Environmental Protection Agency (EPA) disapproved Minnesota’s long-standing practice of excluding waterways used for the production of wild rice in the state’s listing of impaired waters under the Clean Water Act.

In a March 2021 letter to the Minnesota Pollution Control Agency, EPA leaders partially approved Minnesota’s listing of impaired waters. But the state’s decision to exclude waterways with high levels of sulfate, deadly to wild rice, violates the Clean Water Act, according to the federal agency.

“The 11 tribes in Minnesota have consulted with the Minnesota Pollution Control Agency and the Environmental Protection Agency for years on the issue of excluding known impaired wild rice waters on Minnesota’s 303(d) list,” said April McCormick, secretary treasurer for the Grand Portage Band of Lake Superior Chippewa.

Every two years, states submit a list, 303 (d), of impaired waters to the EPA.

“We have never been able to get either agency to list impaired wild waters in the past but now we are very encouraged by the EPA’s willingness to hear our concerns; we expressly asked them to reject the state’s 2020 listing of impaired waters as submitted because of its exclusion of wild rice waters and meet with us to hear our concerns,” McCormick said.

Since meeting with tribes, the EPA is now in the process of developing a list of Minnesota waters that it considers as having excessive levels of sulfate; Minnesota will then have to include these waterways in their list of impaired waters.

“It’s a big deal that the EPA is willing to exercise oversight in Minnesota. The EPA is saying they are back on the job,” said Paula Maccabee, director and counsel for WaterLegacy, a nonprofit environmental rights organization.

The agency’s willingness to act in this case differs from its behavior during the Trump administration. Maccabee pointed to the agency’s past behavior in 2018 of refusing to allow staffers’ written concerns over issuing a water permit for the Polymet copper mine in the state be included into the public record.

The Clean Water Act was enacted in order to create a safety net, preventing states from giving into political pressure from industries such as coal plants and mines when overseeing the health of public waterways.

The federal agency is intended to act independently of such influences providing more perspective.

Wild rice, or manoomin ‘the good berry’ is considered a sacred food yo Ojibwe and plays an important role in culture and tradition in addition to providing nourishment.

“Manoomin or Psin (in the Dakota language) is a spiritual food. It is a sacred gift from the Creator. It is part of our migration stories, to come to a place where the food grows naturally on the waters. It’s part of our ceremonies and meals at community gatherings,” McCormick, a citizen of the Grand Portage Band of Lake Superior Chippewa.

“Manoomin/Psin is inherently a part of who we are as Anishinaabe so we have a responsibility to protect it.”

Since 1973, the Minnesota Pollution Control Agency has included a measure of 10 milligrams per liter of sulfate in waters used for production of wild rice. Water is considered to be unsafe for wild rice if it exceeds this limit.

Sulfate has been identified by the Minnesota Department of Natural Resources and the Army Corps of Engineers as a chemical that affects the growth and vitality of wild rice.

According to Minnesota tribes however, the state has routinely excluded wild rice waters from these measures claiming that they haven’t been able to establish reliable standards to determine the impact of sulfate levels on wild rice.

In 2015, the Minnesota legislature passed a law forbidding the state’s Pollution Control Agency from enforcing their 10 milligram per liter limit in wild rice waters.

Weary of the state’s repeated failure to include waterways that are impaired for wild rice production on their listings submitted to the EPA, tribes created their own list.

“Tribes have asserted to the EPA that there are at least 21 known, impaired wild rice waters (or 50 segments, per the Minnesota Pollution Control Agency’s methodology that should be listed on the 2020 303(d) List. We look forward to the EPA publishing a list that includes all known impaired wild rice waters,” said McCormick.

Increasingly tribes are successfully leveraging their authority as sovereign entities to exercise control over water quality on their lands, many tribes can legally claim ‘treatment in the same manner as a state’ status under the Clean Water Act.

Although the EPA may not include all waters listed by tribes as impaired, their willingness to take tribal concerns into consideration is an important first step according to Maccabee.

“The fact that the EPA has partially disapproved Minnesota’s 2020 303(d) list is historic, and is a culmination of all our joint tribal letters. It’s really a powerful tribal effort,” McCormick said.

“Protecting clean water and Manoomin isn’t only a tribal issue, it’s about protecting this essential resource for all Minnesotans.”

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