Minnesota Pollution Control Agency Water Quality Trading Rule Development

1. Minnesota Pollution Control Agency Water Quality TradingRule Development

2. Why Trading? • The Minnesota Pollution Control Agency has developed some experience with water quality trading which has led us to believe that it can be a very useful water quality management tool • Rahr Malting Company – 1997 • Southern Minnesota Sugar Beet Cooperative – 2000 • Minnesota River Basin Phosphorus General Permit – 2005 • Water quality trading can provide management options to achieve greater efficiencies and environmental benefits than those available based on conventional regulatory requirements

3. Why Trading?Impaired Waters • The Draft 2008 Impaired Waters list contains 1,469 impairments including: • 500 lakes • 25 listed for multiple pollutants • 336 rivers & streams • 603 “reaches” listed for one or more pollutants

4. Why Trading?The legal angle • In 2004 the MPCA was sued over the issuance of a discharge permit to a new wastewater treatment facility planned for the cities of Annandale and Maple Lake • At issue was whether the MPCA’s issuance of a permit to a new source of pollutants to in the watershed of an impaired water, and prior to the completion of a TMDL, violated federal law • MPCA argued that a recent phosphorus reduction of 53,500 lbs/year achieved by the city of Litchfield more than offset the proposed 2,200 lbs/year load from the Annandale/Maple Lake project • No formal “trade” agreement was negotiated between the Litchfield and Annandale/Maple Lake facilities

5. Court of Appeals Decision • In August of 2005 the Minnesota Court of Appeals ruled that the MPCA had improperly issued the permit because the proposed discharge would contribute to the nutrient impairment in Lake Pepin and reversed the permit issuance • The Cities (Annandale & Maple Lake) and MPCA appealed the decision to the Minnesota Supreme Court which agreed to review the case

6. And Then We Waited… • Turns out the Supreme Court is a rather busy place and turn around time doesn’t appear to be their primary concern • MPCA didn’t issue any discharge permits for new and expanding facilities in the Lake Pepin watershed from August of 2005 to …. • We had a lot of time consider how the Annandale case changed the legal landscape given the numbers of new impairments we expect to see in the future • MPCA decided that trading should be part of the mix for successful water quality management

7. Supreme Court Decision • In May of 2007 the Supreme Court ruled that the MPCA’s approach in issuing the Annandale/Maple Lake permit had been reasonable and reinstated the permit • By this time we had 69 proposals for new or expanded facilities waiting for MPCA discharge permits • Although the court ruled that the MPCA’s offset based approach had been reasonable, we are now moving towards a trading based approach for new and expanded facilities in impaired watersheds

8. Water Quality Trading Goals • Improve water quality • Manage growth and development in impaired and unimpaired watersheds • Flexible and cost effective water quality management • Encourage ecosystem improvements based on the “ancillary benefits” derived from the implementation of ecological services • Design a water quality trading system that provides a consistent framework for buyers and sellers

9. EPA Water Quality Trading Policy (2003) Trading Objectives EPA supports implementation of water quality trading by states, interstate agencies and tribes where trading: A. Achieves early reductions and progress towards water quality standards pending development of TMDLs for impaired waters. B. Reduces the cost of implementing TMDLs through greater efficiency and flexible approaches. C. Establishes economic incentives for voluntary pollutant reductions from point and nonpoint sources within a watershed. D. Reduces the cost of compliance with water quality based requirements.

10. US EPA Office of Water Water Quality Trading Policy (2003) Trading Objectives (cont.) E. Offsets new or increased discharges resulting from growth in order to maintain levels of water quality that support all designated uses. F. Achieves greater environmental benefits than those under existing regulatory programs. EPA supports the creation of water quality trading credits in ways that achieve ancillary environmental benefits beyond the required reductions in specific pollutant loads, such as the creation and restoration of wetlands, floodplains and wildlife and/or waterfowl habitat. G. Secures long-term improvements in water quality through the purchase and retirement of credits by any entity. H. Combines ecological services to achieve multiple environmental and economic benefits, such as wetland restoration or the implementation of management practices that improve water quality and habitat.

11. Water Quality Trading Rule Development • MPCA is developing a Water Quality Trading rule with the assistance of an advisory committee • The advisory committee process is intended to obtain guidance from the numerous interested sectors • Our objective is to complete a draft rule by June 2008

12. Advisory Committee • External Membership: • 70 people on email notification list • Representing 52 different organizations • MPCA Membership: • 19 agency staff on notification list • Representing various areas of expertise

13. Progress So Far • Developing a set of common goals and values • Water quality protection and restoration is the top priority • Accountability, additionality and equivalence • Market driven and results oriented system • Capture multiple ecological benefits • Establish incentives for management that benefits water quality • Efficient, equitable and sustainable • Flexible to adapt to changing knowledge and technology • Have evaluated various existing programs and regulations • Have developed a draft outline and started to analyze its components

14. Minnesota River Basin General Phosphorus Permit • Watershed permit applies all point sources in the Minnesota River basin • Pollutants of concern: • biochemical oxygen demand (BOD) • phosphorus • Authorizes point source/point source trades • 41 point sources are currently authorized to trade

15. Minnesota River Basin General Phosphorus Permit - Map

16. Minnesota River Basin Permit Drivers • Lower Minnesota River Watershed Low Dissolved Oxygen TMDL • Low flow dissolved oxygen depletion between Shakopee and the Twin Cities • Upstream sources of phosphorus contribute to excess algal growth • Algal decay causes in stream dissolved oxygen deficiency in the lower 22 miles of the Minnesota River • TMDL established waste load allocations for phosphorus sources upstream of Jordan • Individual waste load allocations for the 39 largest continuous dischargers • Collective wasteload allocations for everyone else • Virtually no reserve capacity • No phosphorus load allocated for new and expanding facilities

17. Minnesota River Basin Trading PermitHow Does it Work? • The basin permit is part of the TMDL’s implementation plan • Establishes phosphorus reductions and authorizes trading between the 39 largest point sources upstream of Jordan • Intended to achieve a cumulative phosphorus reduction of 35% in 5 years • Trading baselines • Existing facilities based on effluent loads from the 1999 & 2000 summer seasons • New facilities have no allocation so their trading baseline is zero • Credits • Facilities operating below their permit baselines can generate credits for sale • The permit establishes the Jordan Trading Unit as the medium of exchange (credit) based on each facility’s location in the watershed • Trade Ratios • 1.1 to 1 for existing facilities • 1.2 to 1 for new facilities

18. Minnesota River Basin Permit Trading Activity • Effluent limits for existing facilities take effect an May 1, 2008 • Preliminary review shows that 13 of the 39 facilities are not expected to meet effluent limits for the 2008 season • Expect to see new trade agreements early next year • Two new facilities are operating in the basin • Granite Falls Energy is trading with the Mankato WWTP • Poet Biorefining is trading with the Lake Crystal WWTP • Two additional trade agreements have been executed in the basin but the companies are not yet in operation

19. Potential Environmental Benefits of Point/Non-Point Trading Programs

20. Example of a Watershed Based Water Quality Trading Program • Great Miami River Watershed Water Quality Credit Trading Program • Run by the Miami Conservancy District, Dayton, Ohio • Excess nutrients and turbidity impairments in three sub-watersheds • TMDL completed for the Stillwater River watershed

21. Ohio’s Great MiamiRiver Watershed • Great Miami River Watershed • 4,000 mi² • 1.5 million residents • Dayton is largest city • Agriculture is dominant land use • Non-point source activities are considered major contributors to water quality impairments • Water Quality Credit Trading Program established in 2005 • Total Phosphorus and Total Nitrogen trading between POTWs and agricultural producers

22. Great Miami Economic Projections • 2004 economic analysis trading opportunities in the watershed • 20 year economic projection of the costs to meet water quality goals: • WWTP upgrades = $422.5 million • Total trading costs = $46.5 million • Agricultural BMPs = $37.8 million • Data and transaction costs = $8.7 million • Projected cost savings of $376 million

23. Great Miami Trading Program Results

24. South Nation River Watershed • Total Phosphorus Management Program • Established by South Nation Conservation in 1993 • Agricultural BMP implementation to offset point source regulatory requirements • Over 500 projects valued at $7.3 million

25. Total Phosphorus ManagementEligible Practices