The chief administrative judge for the state of Minnesota’s Office of Administrative Hearings issued a report Oct. 1 concluding that the Minnesota Department of Agriculture can move forward with the state’s proposed Groundwater Protection Rule after it makes several minor required modifications.

Judge Tammy Pust ruled that MDA, over the last three years, established its statutory authority to adopt the proposed rules and that it followed the legal requirements to promulgate them. In addition, she wrote, MDA also established that the proposed rules are needed and reasonable. She listed 11 findings where word changes and clarifications are needed, and she listed actions to be taken.

The revisions needed range from defining what “significant” means when describing nitrogen contamination sources to allowing discretion on the part of the ag commissioner to exempt farmers from the specific rules, depending on circumstances.

If the MDA adopts revisions offered by the administrative judge, and she determines they have been corrected, MDA may proceed to adopt the rules.

Susan Stokes, MDA assistant ag commissioner, says the department is pleased that the administrative judge recognized that MDA met its burden of proof and arrived at a reasonable rule.

“We’re very pleased about the decision,” she says. “It was a long process [to promulgate the groundwater protection rule]. We had healthy input, and it ended at a good place.”

In 2010, MDA started the process of updating the rule, formerly known as the Nitrogen Fertilizer Management Plan. MDA completed the update in 2015. Comment periods and listening sessions on the update were held from October 2015 to January 2016, and again in 2017 and 2018.

Stokes says MDA would like to see the groundwater protection rule adopted by the end of the year. It would then take effect Jan. 1, 2020.

Farmer response
Members of the Minnesota Corn Growers Association have been active with testifying and submitting written comments throughout the rulemaking process.

In a news release following the judge’s report, MCGA noted that comments it provided were taken into consideration and included in several areas:

• The definition of “nitrogen fertilizer” will be amended to clarify that manure will not be included if chemicals or other substances are added to the manure to reduce odor or gas emissions, prevent foaming, or extend the time when nitrogen remains in the soil.

• The rule will be amended to require that MDA must apply exceptions to the regulations in areas that are not contributing to nitrate contamination in public drinking water, or where contamination is caused by a point source. Under the proposed rule, MDA could choose whether or not to apply these exceptions, even if all the necessary criteria were satisfied.

• The rule will be amended to clarify important procedural requirements for hearings that challenge mitigation levels assigned and orders issued by MDA.

“Since 2012, MCGA has invested nearly $6 million to fund research and educate farmers on ways to improve the efficient use of fertilizer in their farming operations,” MCGA noted in the news release. “Farmers have made a concerted effort to more efficiently manage nitrogen applications by implementing best management practices as well as practices that exceed BMPs when necessary.”

MCGA said it was disappointed the administrative law judge dismissed efforts on the part of farmers who worked to address groundwater quality concerns.

“MCGA will promote the positive impact of targeted, voluntary measures through this process and help shape a positive outcome for Minnesota corn farmers,” the news release said.

Read the administrative judge's report.