Although the Minnesota Pollution Control Agency (MPCA) and Minnesota Department of Natural Resources (DNR) collectively make up less than one percent of the state budget, the shutdown of these agencies, which began on July 1, is already affecting businesses that rely on these agencies and their permitting processes.
Due to the shutdown, the MPCA and DNR are no longer processing any environmental permit applications. Consequently, all pending permit applications or requests for modification will not be approved during the shutdown period. This standstill is having wide-spread consequences for businesses across the state. For example, the MPCA approves an average of 80 construction stormwater permits per week in the summer. Even though the general permit for construction stormwater discharges allows the projects to start within seven days of mailing notification to the agency, the MPCA takes the position that these construction projects may not proceed.
The DNR has also notified permit holders that it has "suspended" a number of types of permits already issued, including:
- DNR surface water use permits (other than domestic water supply and power production)
- DNR public water and aquatic plant management permits (including permits for commercial mechanical plant control and work in public waters)
- DNR general permits that require agency notification (including permits for temporary water appropriations and flood damage repair)
The DNR's authority to "suspend" these existing permits is unclear. For example, the DNR has statutory authority to cancel or limit surface water use permits, under some circumstances, but only after affording the permit holder a hearing. The water statute does not mention "suspension" of permits.
In contrast, the MPCA and DNR assert that other permits that have already been issued will remain valid, including:
- MPCA stormwater construction permits (if the application was approved before the shutdown)
- MPCA air emission permits
- DNR permit to mine
- DNR groundwater use permits (including permits for mine dewatering)
- DNR surface water use permits for domestic water supply and power production uses only (this does not include industrial or commercial uses)
- DNR general permits that do not require agency notification
Note that all permit requirements are still enforceable whether or not state staff are inspecting facilities. Permit reporting requirements, such as discharge monitoring reports or annual reports, should still be submitted to the MPCA and DNR on a timely basis. We recommend that submittals be sent to the appropriate agency by mail with a return receipt or by parcel delivery with tracking ability as evidence that the submittal was delivered on a timely basis.
Likewise, environmental review projects will generally be discontinued during the shutdown and MPCA licenses, such as landfill and wastewater operator licenses, that expire during the shutdown cannot be renewed.
Deadlines for public comment periods regarding pending permits and environmental review administered by the agencies will still be observed even if the notice period ends during the shutdown. The MPCA advises that comments should be submitted via mail or parcel delivery as described above. Both the MPCA and the DNR have suggested that they may extend public comment periods after the shutdown ends.
On June 29, Ramsey County District Judge Kathleen Gearin ordered the Department of Management and Budget to fund "critical core functions" of state government. Although the court adopted the governor's statewide objectives which recognized that government services needed to prevent "a severe and permanent negative financial impact to business" must be "reestablished within a few days," the court did not specifically approve continued funding for the permitting functions of the MPCA or DNR. Judge Gearin appointed retired Minnesota Supreme Court Chief Justice Kathleen Blatz as Special Master to hear and make recommendations to the court on petitions regarding application of Judge Gearin's June 29 order.
Businesses that have received a permit suspension notice should carefully evaluate whether the relevant agency has the statutory or regulatory authority to do so. In addition, businesses should note that if an agency's failure to process a permit application will have "severe and permanent financial impacts on their business" they may have a basis to petition the Special Master as the agency action may be inconsistent with Judge Gearin's order.