In this episode of The Water Table, Jamie is joined by Minnesota Lawyer & Lobbyist, Bruce Kleven, to discuss a petition that could regulate agriculture in a state where most farmers feel it’s already over-regulated. Find out why this petition filed by an environmental group is being called a “lawsuit against Mother Nature.”
Bruce Kleven has extensive skills and experience as a lobbyist, attorney and mediator, political strategist, speaker and parliamentarian. His areas of focus include agriculture, the environment, energy and transportation. He works with clients ranging from individuals to multi-national corporations. Mr. Kleven is a native of west-central Minnesota where his family of fifth-generation farmers emigrated from Norway in the 1870s. He grew up working on the family farm, which produces sugar beets, soybeans, and corn. He currently lives in the Twin Cities with his family.
Intro (00:02):
This is the Water Table.
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A chance to hear the agricultural side of these issues.
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A place for people to go find information and education.
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Water management is just going to become even more critical into the future.
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How misunderstood what we do, is.
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I would encourage people to open their minds and listen to this dialogue.
Jamie Duininck (00:32):
Coming up on today’s episode of the Water Table, I chat with Bruce Kleven, an attorney and lobbyist who focuses on agricultural issues in Minnesota. Today we are talking about the Minnesota Center for Environmental Advocacy and how they have a war on Mother Nature. Hope you enjoy listening, as much as I enjoyed talking with Bruce.
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Welcome to the Water Table podcast, today I have Mr. Bruce Kleven with me. Bruce is a lobbyist at the Minnesota State Capitol, working almost exclusively on agricultural issues. Bruce and I go back a long time, 20, 25 years, when I was at a meeting at the Minnesota Department of Agriculture and saw this guy that was kind of holding court there and kind of a gray-haired guy at the time, and he wasn’t very old. And then I find out that he grew up over in our area here where I live in Central Minnesota, and we formed a relationship and have been working together ever since on agricultural issues. So welcome to the Water Table, Bruce.
Bruce Kleven (01:44):
Yeah, thank you, Jamie. Thanks for the introduction. Yeah, we go way back to that meeting at the department, I remember it.
Jamie Duininck (01:51):
And have had some fun times and a lot of conversations over the phone or over a beer, just about the state of agriculture, not only nationally, but mostly in the state of Minnesota. And a lot of issues with water and with what we do here at Prinsco Water and the challenges that come with kind of blending the city folks and agriculture together and how we continue to navigate that whole issue. And that’s why we’re talking again today, is just about some things that are happening currently in your world. So Bruce?
Bruce Kleven (02:34):
Yup, we’re in the middle of the legislative session right now, Jamie, so there’s a lot going on with that. But I know today we’re going to cover the petition that was filed about a week ago, it was last Monday.
Jamie Duininck (02:45):
Yeah. The Minnesota Center for Environmental Advocacy filed a petition. But before we talk about the petition, who and what are this Minnesota Center for Environmental Advocacy? I think our listeners would want to know that.
Bruce Kleven (03:02):
Sure. MCEA for short, is a St. Paul based law firm, they’ve been around about 50 years or so. And Minnesota has a Minnesota Environmental Protection Act, and that allows citizens to bring lawsuits to enforce environmental laws, and so they go back to about the starting of that law in Minnesota, and over the years they’ve built up a big law firm, they’re well funded. You’ll find them intervening in all sorts of matters, they’re the ones leading the charge against PolyMet, Twin Metals, Line 3 Enbridge, feedlots, and now this most recent one down in Southeast on nitrates. And so they’re a well funded Twin Cities law firm, they do some work at the legislature, but when they don’t get their way, they tend to bring lawsuits to enforce public policy or set public policy through the court system.
Jamie Duininck (03:53):
And we have listeners from all over that aren’t just state of Minnesota, so some of the things you’re talking about there are… Some of the mining in Northern Minnesota that has had challenges along with pipelines through states, that cover many states, but come through Minnesota. And another one that more of our listeners might be a little bit aware of is the Limbo Creek in Renville County, they were part of that lawsuit, correct?
Bruce Kleven (04:22):
Yeah, that’s right, Jamie. They led the charge on the Limbo Creek issue, that had to do with what is and what is not a public water. And their goal there, it was kind of a proxy fight there in Limbo Creek, what they really wanted to do was establish the fact through the court system that the Public Waters Inventory is not the final list of public waters in the state, but they wanted to apply it to the Buffer Law and bring a bunch more miles of waterway back on the list for buffers, that was the real goal of Limbo Creek. They also are the ones, you and I have talked about, the drainage registry that’s pending at the Minnesota legislature this year, they’re one of the lead groups on that as well.
Jamie Duininck (05:00):
Yeah. So those are all topics we could get into and maybe should at some point, it would be a good podcast. But today we want to just focus on what’s currently happening with the MCEA, and really why this started was kind of the rumors that there was going to be a petition to revoke Minnesota Department of Ag and Minnesota Pollution Control agency’s ability to issue permits for water, for drainage, things like that, because of the nitrate issue. I know that’s changed a little bit, what are we really at there and kind of explain that story a little bit.
Bruce Kleven (05:40):
Sure. So the initial intel on this filing, and it was filed last Monday, so it’s been out for eight days, and it was a petition to the EPA. And in order for this to make sense, I have to set the table quickly. There’s three laws that are involved here, and I’ll go through them quickly just to set the context because otherwise this probably wouldn’t make much sense. And the first one really is the Clean Water Act of 1972, that was passed and each state was delegated to carry that out. And so in Minnesota, the Minnesota Pollution Control Agency is the dedicated authority here, and so they’ve had that authority for 50 years or so. And then the second one is the Groundwater Protection Act, that came in 1989, and that was kind of a groundbreaking law here where the legislature did an overhaul and they basically assigned responsibilities to the Department of Health, MPCA, the Department of Ag and DNR, and everybody had a different role.
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Minnesota Department of Health regulates public water supplies and wells, Minnesota Department of Agriculture is pesticides and fertilizer, and MPCA is surface water and other pollutants. And so the Groundwater Protection Act gave the Department of Ag the authority over nitrogen and fertilizer and pesticides. And then the third one was recent, and that was in 2019, the Department of Ag put out a rulemaking to regulate the application of commercial fertilizer in the fall, and restrict it down in the karst region. For your listeners, Jamie, the karst region is the Southeast corner of Minnesota, basically from Minneapolis straight South, and then all the way East to the corner. The Karst region is very porous, groundwater mixes with surface water very easily there. And so what the rule did was restrict fall application of commercial fertilizer, you can’t do it down there. And that rule was applied largely statewide.
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So those are the three laws that have come into play to this petition on Monday. The petition itself asks the EPA to use its emergency authority to step in and regulate nitrates, and that translates into regulating agriculture. What they’re really saying here is that the MPCA and the Minnesota Department of Ag haven’t done enough to keep nitrates out of the water in the karst region, and so they want the EPA to step in, and that’s despite the 2019 rule that the department put in place. What they’re saying is, it’s not happening fast enough for us, we want the EPA to step in, and that’s what that petition was about.
Jamie Duininck (08:12):
Just to explain a little further to help me, the 2019 rule really would do relatively the same thing if they let it happen, if they let it work the way it’s supposed to work, is that what you’re saying?
Bruce Kleven (08:25):
Yeah.
Jamie Duininck (08:26):
But instead they’re saying, hey, this isn’t going quick enough for us, so we’re going to… Go ahead.
Bruce Kleven (08:33):
Yeah, that’s my read of it, Jamie. It’s not going quick enough for them. And this stuff takes time. A good example is Atrazine. Atrazine came out in the late ’70s, and it was revolutionary because it was a grass herbicide that killed grass weeds in a grass plant. In other words, it took quackgrass out of corn, it was a selective herbicide. And back then the guys were putting pounds on per acre, now it’s a micro rate. And over time, over 40, 50 years, that trend line has gone way down to where Atrazine is not even a conversation anymore at the Department of Ag, but it took time for that to happen.
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And down in the karst region, we’ve had the feed lot rules in since 2000, 2002, that’s a 20 year times span, and we’ve had this nitrogen rule since 2019, so we need just a little bit more time for this to work out. I don’t think anybody’s taking the nitrates lightly, but to have it be an emergency all of a sudden and not give this nitrogen rule time to work, kind of doesn’t make any sense. But Atrazine’s a good comparison to letting time filter out and show how the practices can wind up in a change.
Jamie Duininck (09:42):
So just back up a little bit too, just for me and our listeners, but the Groundwater Protection Act, is that a Minnesota law or is that a federal law? Yeah, so when you go all the way back…
Bruce Kleven (09:54):
Good question. The Groundwater Protection Act is a Minnesota law of 1989. It’s not a federal one.
Jamie Duininck (10:00):
So when you go back to the Clean Water Act, that’s federal in ’72, and then Minnesota took it a step further in ’89. And I just share that because there’s a lot of, Minnesota already has protection on top of protection, is how I would say that, with, we have our own drainage laws that there is federal drainage laws too, and we kind of double dip on that. Where other states, I’ll just use South Dakota as an example, don’t really have many of those. So it gets confusing for, I think, farmers and people that are interested in this and want to know more, when you have a law at the federal level and then you circumvent that, so to speak, or try to add more to it, but it doesn’t always work that way with your own state law. And it almost feels like, now would you say that that’s what we’re doing again? So the Groundwater Protection Act is, what they’ve did in 2019 is just going above and beyond that, would that be correct or not?
Bruce Kleven (11:03):
Yeah. I would say it goes above and beyond, but others would say it’s just implementing what should have been done in ’89 through rules. So I think that’s a debatable point. But do you know what the irony is here? When you talk about the drainage, that we have our own, we also have our own wetland law, which is way more stringent than the feds. And our feed lot rules here in Minnesota are more stringent than our surrounding states and in other places in the country. So when you have that and you have an environmental group saying you’re still not doing it good enough, that’s a little curious.
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We have industries leaving the state because permitting at the MPCA takes so long. There was a soybean plant up in Crookston, they developed that for a couple years, and in December or January they took off for North Dakota. Huber wood processing up in Cohasset, they left the state over permit. And there was one more, those have just happened in the last three months. So when we get a petition saying, Minnesota’s not doing enough, most people in the regulated industry and ag that I work with, think that we’re way, way too stringent already, compared to surrounding states.
Jamie Duininck (12:06):
Right. And if you go further into the whole water quality drainage side, and you know what, if it’s going to do some tiling and you go get a 1026, you go down to Iowa, nobody knows what a 1026 permit to tile is because they just don’t… It is a federal permit that you get from FSA and NRCS, but they don’t apply for them because they don’t have to. In many, many areas of our country that tiling is a rite of our water management and the farmer’s rite of passage. So it is interesting to see where we’re going here, and how does this play out, do you think? What are some of the next steps? And when you look at it from the standpoint of what we just talked about, of many people that have the knowledge of where other states are at from the standpoint of regulation, think we’re already over-regulated, and then this is being proposed here, how does it play out?
Bruce Kleven (13:09):
Sure. I think there’s maybe two comments on that question. The first is, this just seems like this is a proxy war in a larger battle, and that is how agriculture is done and how it’s operated and run. In their petition, they say, and I’m quoting here, the root cause of this pollution is public policy that makes polluting actions cheaper and easier than sustainable practices. And so if this is a proxy war on how ag is done, what is sustainable? They use industrial agriculture throughout their petition, what is that exactly? And what is sustainable, what is not sustainable? And so it’s a larger war on how agriculture is done.
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And the second thing I think that might be afoot here is a principle called sue and settle. And we saw this in the Obama years where groups would sue the EPA and they would settle out of court and establish a new policy at the EPA without doing any rulemaking or any authorization from Congress.
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So this petition might wind up in some kind of sue and settle outcome where the legislature doesn’t do anything, the agencies don’t do anything, but the MCEA reaches an agreement with the EPA that going forward, this is going to be the new policy on feedlots, for example. And you won’t get it through a legislature and you won’t get it through rulemaking, that could be an outcome here. The structure of this petition is from them to the EPA. The state agencies are not really a true party to this, this is not a lawsuit, it’s not a court action. It’s a request for the EPA to step in and take over what the state agencies have been doing for 50 years.
Jamie Duininck (15:03):
As I sit and listen to this, and you can get frustrated right away just with where these things are going. And yet here on the Water Table podcast, over the last couple of years, we’ve interviewed numerous people around what’s happening from the standpoint of positive things in agriculture, positive things in water quality in agriculture, whether it’s drainage water management, whether it’s wetlands that are being built for taking nitrates out, whether it’s biochip reactors, all kinds of different things that have real positive water quality advantages.
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Most of these are funded by our industry and are being implemented by the land grant universities around the Midwest of Ohio State and Purdue and Illinois, Iowa State, Minnesota, North Dakota State University. We have a big sample now, over 20 years, and you know a lot of this too from conversations we’ve had, but maybe a naive question, but I want to ask it. Why do you never see these organizations… Why do you never see people like the MCEA reach out to us, our industry, and say, what are you doing? What are you doing to be proactive? What are some of the results of your proactive… Because it’s really good. We got a great story to tell and it’s like they don’t want to hear it.
Bruce Kleven (16:35):
That’s exactly right Jamie, that was going to be my answer, they just don’t care. We have variable rate spreading right now. We have injectors on the manure application. We have agronomic rates. All those things are standard practices. You could say a generation ago, my grandpa probably just loaded up the spreader and went out south of the barn, that’s what he did. Now we have agronomic rates, we have the mapping. I run combine in the fall and map the fields. Those are all things that are being implemented right now. And what they really are trying to do, and this is a discussion probably for another time, but there’s a difference between point sources and nonpoint. And part of what was going on in the Federal Clean Water Act of 1972 was to get all the point sources regulated.
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So think of a city wastewater treatment plant or an ethanol plant. What they’re trying to do now is go after nonpoint, and they’ve been doing that for a number of years, but that’s really sort of a lawsuit against some other nature in a way. You can do everything right and you get a 4″ rain in June, some of the dirt’s going to get washed down the river. We can’t plan for that. We can’t regulate that. We can’t get a permit for that. But in their neat little world, you just simply put the fertilizer down and then the corn roots take it up and everything works out, and 105 days later on 105 day corn, you just simply go out there and combine it. Your listeners know that that is not how the world works, so this is really sort of a claim against Mother Nature in a way, and it’s really hard to get your arms around it.
Jamie Duininck (18:06):
Right. And be careful what you wish for because that four inch rain, you’re going to have less dirt going down the streaming river on a tiled water managed field than you are on a non-tiled field. So when you don’t like something, but it’s providing environmental benefits, then it’s pretty hard to reconcile that in your mind.
Bruce Kleven (18:30):
Yeah. I was part of the buffer law in 2015, and we had that discussion. There was an undercurrent in 2015 on the buffer law, there is the water quality aspect to it, but it was also an effort to make farmers do something. They wanted to make them do something. And they took their land out of production and they didn’t compensate them for it, because they said they could. That was one of the undertows at the legislature that year was, we’re going to make them do it.
Jamie Duininck (18:56):
Yep, for sure. So where do you think this all goes? What do you think the next… I don’t know if this is something that… These things sometimes move kind of slowly, but what does the next year look like around this stuff?
Bruce Kleven (19:13):
Yeah, another good question. I understand that these take some time to figure out, EPA has to digest this. There have been other actions like this over the years. I think Flint in Michigan was a similar invocation of authority where the EPA stepped in because the state hadn’t done enough, I don’t know the particulars, but that’s the kind of thing here. There was one in Pennsylvania and one Wisconsin over the years, and in looking at that and talking to people who were involved, those took several years. So I don’t think this is something that’s going to happen quickly.
(19:43):
But having said that, we have a legislative session next year, and who knows what could come of that. There may be pressure now on the legislature to step in a little bit more and make the agencies do what the MCEA is asking the EPA to do. And say, all right, we’ll back off our petition, but then we want this bill passed or these three bills passed, that’s a possible outcome for next year. I don’t think they expected the DFL trifecta in November, nobody really did. And it took them a while to assemble their data and their petition, and they got it out a little late for this session. But I think it’s possible this could be in play next year as a pressure point.
Jamie Duininck (20:22):
So I just kind of smirked when you said that because we have listeners from all over, and I’m guessing several of them are going to rewind there. Hey, what? Wait, what did he just say about DFL? How long, in Minnesota, are we going to keep calling the Democratic Party, the Democratic Farmer-Labor Party, since they left the farmers and the laborers a long time ago?
Bruce Kleven (20:46):
Yeah, that’s a little discussion in the hallway, it’s really the party name, it was a merger in 1944 I think, between the Democrats and the Farmer Labor Party at the time, and that was the origins of it. It would really be up to the party to do that internally, I don’t know if I can answer that.
Jamie Duininck (21:01):
I didn’t expect an answer, it was more of a comment. But I think what I want to do here is just continue to monitor this situation over time and maybe have you back on. It’s going to be really interesting to see where this all heads and how agriculture responds really, because we have, like I said, we have such a story to tell around the good things that are happening with how we’re managing water quality. To the point where, I’ve been involved for over 20 years, and to see the progress that’s being made, it has been surprising to me that we have the kind of results we have now. And I think agriculture is going to change a lot in the next 20 years around water quality. But it’s going to be our proactive changing, not being forced to change, in a way. We’re going to proactively change in agriculture because we see the good that we can do and still maintain the results as far as high yields and farmers being able to make a living.
Bruce Kleven (22:07):
Yeah, you’re seeing that with the technology on the machinery now, there’s drones that are coming in to spot spray a whole quarter. The old way was you had to broadcast, now they’re coming in with an ultraviolet light or some sensor that says, this is corn, this is a weed, and it just does a little spurt. You’re seeing that, it costs money, but those kind of things are coming in, they’re coming quickly.
Jamie Duininck (22:33):
Right. Yep, for sure. Well, Bruce, appreciate the time on this topic. And you’re over in the capitol every day this spring and every spring, anything else you want to share just about how the session, not necessarily probably how the session’s going, but more in a little broader sense in how you think the changes that are happening in Minnesota, which are a lot right now, how that is going to affect us out here in rural Minnesota and rural America?
Bruce Kleven (23:09):
Our current makeup of our legislature is very metro dominated, and so the Democrats are in charge of all three of our branches. But it’s really a very metro concentration, and part of that is because the second and third ring suburbs in the Twin Cities have tipped towards the Democrats in recent years. And so we always had kind of a Democrat, Republican difference in philosophy, and now it’s gotten to be much more urban rural, and so the folks that are in charge don’t really come from rural areas, and so on the long arc, that’s a concern. This particular session, we’ve had a number of bills that have come in on treated seeds and this drainage registry authority, we’ve talked about the registry. Some of the rural Democrats are understanding the severity of that, and I think we’re going to get those taken care of.
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So I think we’ll come out of the session at the end, in three weeks, in pretty decent shape. We’ve certainly had some risks, some discussions along the way, but for the most part, I think we’ll be okay this session. A lot of the attention’s been on larger party priorities, like the Roe v. Wade decision and Paid Family Leave and other larger issues, that’s taken a lot of the oxygen in the room so that the ag stuff has not been too bad this year, and I think we’ll be okay.
Jamie Duininck (24:25):
Yeah. Good. Well, we appreciate what you do for agriculture, you’re kind of behind the scenes there a lot over the last 25 years, you really know what’s what’s happening. But try to stay behind the scenes and then inform all of us out here that are living on the land and out in rural America, what’s happening from a policy standpoint. And I think a lot of us, if not all of us in agriculture are all people like you, a lot of gratitude around just keeping us informed in what’s around the corner or what’s looming. So thank you for that from me and from agriculture, and let’s stay in touch here on the Water Table and continue to share once in a while what you see going on and how we should be thinking about it out here in the field.
Bruce Kleven (25:18):
Yeah, that sounds good. Thank you for that and having me, Jamie, it’s been a good job for me. So appreciate joining you today, and I’ll maybe see you again.
Jamie Duininck (25:26):
Thank you. Well, thanks for listening to this episode. I have so much fun recording these, I hope you have as much fun listening as I do recording. These episodes are available on all major podcast platforms as well as YouTube. So find them and download them when you can. Thanks for joining us.