Constructing a new hog barn (or expanding an existing barn) in Minnesota requires pork producers to navigate a maze of requirements across several layers of government. The facility may require a feedlot permit from the Minnesota Pollution Control Agency or the county where the facility is located. Many feedlot projects also require a zoning permit (e.g., a conditional use permit) from the county where the facility is located. And in some cases, an additional zoning permit is required from the township where the facility is located.
But before the permitting process can be completed, hog producers seeking to construct a new facility or expand an existing facility in Minnesota may be required to complete a separate environmental review process to determine whether the project has the “potential for significant environmental effects.” This article will provide an overview of this environmental review process.
What Is the Environmental Review Process?
The environmental review process is intended to provide information to governmental agencies and citizens about environmental effects that may be caused by projects that require government approval so that this information may be used to determine whether the project should proceed and to avoid or minimize adverse environment effects from those projects. The environmental review process consists of two separate components. First, an Environmental Assessment Worksheet, or EAW, is a brief document that sets out the basic facts about a proposed project and is used to determine whether the project has a potential for “significant environmental effects” and, if so, to help determine the scope of the additional analysis that is required. If a potential for “significant environmental effects” has been found, an Environmental Impact Statement, or EIS, will be required. An EIS is a longer document that “describes the proposed action in detail, analyzes its significant environmental impacts, discusses appropriate alternatives to the proposed action and their impacts, . . . explores methods by which adverse environmental impacts of an action could be mitigated,” and “analyze[s] those economic, employment, and sociological effects that cannot be avoided should the action be implemented.”
If (as discussed more thoroughly below) an EAW is required for a feedlot construction or expansion project, no governmental agency may make a final decision to grant a permit or approve a project until either (1) a petition for an EAW is dismissed; (2) a determination has been made that an EIS is not required; (3) an EIS has been determined adequate; or (4) a variance has been granted by the Environmental Quality Board from the requirement to complete an EIS.
When Is an EAW Required?
An EAW is required for the construction of a new feedlot with a capacity of 1,000 animal units or more (i.e., 3,334 head or more of swine weighing between 55 pounds and 300 pounds) or for the expansion of an existing feedlot by 1,000 animal units or more. An EAW is also required for the construction of a new feedlot with a capacity of 500 animal units or more—or the expansion of an existing feedlot by 500 animal units or more—if the facility is located in shoreland, a flood plain, or other specified sensitive areas.
But even if an EAW is not required under either of these criteria, either the governmental unit with approval authority over a proposed feedlot or the Environmental Quality Board may require that a discretionary EAW be completed if it determines that because of its nature or location, the project “may have the potential for significant environmental effects.” The Environmental Quality Board is a board comprised of the commissioners of eight state departments, the chair of the Board of Water and Soil Resources, and a public member appointed by the Governor from each congressional district. If two or more projects will be undertaken by the same proposer “over a limited period of time” and “will have environmental effects on the same geographic area,” these projects will be considered to be a Phased Action and must be considered together in determining whether an EAW or EIS will be required.
A discretionary EAW may also be required if a petition is filed with the Environmental Quality Board and is signed by at least 100 individuals who reside or own property in Minnesota. Among other required information, such a petition must include “a brief description of the potential environmental effects which may result from the [proposed] project” and “material evidence indicating that, because of the nature or location of the proposed project, there may be potential for significant environmental effects.”
If a complete petition that satisfies all legal requirements is filed, the chair of the Environmental Quality Board (or her designee) must designate the Responsible Governmental Unit, or RGU, for the environmental review of the project. The RGU must then review the evidence presented (by the petitioners, the project proposer, or any other person) or otherwise known to the RGU and determine whether, “because of the nature or location of the proposed project, [it] may have the potential for significant environmental effects.” If so, the RGU must order the preparation of an EAW; if not, the RGU must deny the petition. This decision should be made within a maximum of 35 days after a complete petition is filed.
Nonetheless, the construction or an expansion of an animal feedlot is exempt from the environmental review process (including the petition and other discretionary EAW requirements) if each of the following criteria is satisfied: (1) the feedlot will be located outside shoreland, a flood plain, or other specified sensitive area; (2) the feedlot will have a total cumulative capacity of less than 1,000 animal units; (3) the proposer provides a written commitment “to design, construct, and operate the facility in full compliance with Pollution Control Agency feedlot rules”; and (4) the county where the feedlot will be located holds “a public meeting for citizen input” at least 10 days before the permit is issued.
Which Governmental Agency Is the RGU?
The Responsible Governmental Unit, or RGU, is the agency that is responsible for “verifying the accuracy of environmental documents,” overseeing the environmental review process, and determining whether an EAW or EIS will be required for a particular project. With respect to animal feedlots, the agency that will issue the feedlot permit (either the Minnesota Pollution Control Agency or the county where the feedlot is located) will be the RGU.
How Does the Environmental Review Process Work?
If an EAW is required for a project, the project proposer must submit to the RGU a draft EAW with the necessary supporting data. The RGU will then review the documents and, within 30 days (or an extended period to which the project proposer agrees), determine whether the submission is complete.
Once the EAW is complete, the RGU must publish (both in a local newspaper and in the EQB Monitor available through the Environmental Quality Board’s website) a notice that the EAW has been completed and is available for public review. The public may submit written comments to the RGU on the need for an EIS within 30 days after the publication of this notice. The RGU may (but is not required to) hold a public meeting during the comment period to provide information to the public about the EAW and gather written comments on the need for an EIS.
After the 30-day comment period has run, the RGU must determine—based “on the information gathered during the EAW process and the comments received on the EAW”—whether the proposed project “has the potential for significant environmental effects.” If the RGU determines that the project has the potential to cause significant environmental effects that cannot be effectively mitigated or controlled, the RGU must require an EIS. Otherwise, the RGU must issue a “negative declaration” determining that an EIS is not necessary. In either case, the RGU must make specific findings of fact to support its decision. The decision on the need for an EIS must be made within 15 days (excluding weekends and legal holidays) after the expiration of the public comment period, but this deadline may be extended for an additional 15 days at the request of the RGU.
If the RGU determines that an EIS is required, the RGU must also determine (based on the information gathered during the EAW process) the issues to be covered in the EIS and “define the form, level of detail, content, alternatives, time table for preparation, and preparers of the EIS.” Once the draft EIS is completed, the RGU must make the draft document available for public review and comment and hold an informational meeting in the county where the project is proposed. Ultimately, at the conclusion of this process, the RGU must determine that the final EIS is adequate.
What Remedies Are Available during the Environmental Review Process?
Any person who is “aggrieved” by a final decision on the need for an EAW, the need for an EIS, or the adequacy of an EIS may seek review of the decision in the Minnesota Court of Appeals. The standard to reverse such decisions, however, is high, and requires the person seeking review to show that the decision was unlawful, unsupported by substantial evidence, or arbitrary and capricious.
Additionally, if an RGU fails to follow the statutory procedures or act within the specified time periods, any person may file a lawsuit in the district court to require the RGU to act in accordance with the legal requirements. Nonetheless, the Minnesota Pollution Control Agency has, in the past, unilaterally extended the statutory deadlines during the environmental review process. Although these extensions are rarely challenged by project proposers, in one recent case in which a unilateral extension by the MPCA of the comment period was challenged, the district court allowed the agency to ignore the plain letter of the law and continue to accept comments after the 30-day deadline.
ACTION ITEMS: When planning to construct a new feedlot or expand an existing feedlot, pork producers should determine whether a mandatory EAW is required for the facility. If so, the producer should work with his consultants and the applicable RGU to submit the necessary information and coordinate the timing of the environmental review process with other permitting activities to allow the project to move forward as efficiently as possible.
This information is general in nature and should not be construed as tax or legal advice.
