The Hwy 55/62 Interchange Reconstruction Project and Camp Coldwater Spring: Did the Minnesota Department of Transportation Violate the Minnesota Environmental Policy Act?
Released December 10 2003
by John M. Gleason
Bemidji State University, M.S. Candidate
Public policy professionals; public servants; environmental engineers; hydrogeologists; land-use planners; natural resource professionals; citizens interested in watershed management and environmental issues.
To understand the dispute between the Minnesota Department of Transportation (MnDOT) and the Minnehaha Creek Watershed District (MCWD), background information is provided on:
· Hwy 55/62 interchange reconstruction project.
· History of Coldwater Spring.
· Minnesota Department of Transportation.
· Minnehaha Creek Watershed District.
The Hwy 55/62 Interchange Reconstruction Project
The Hwy 55/62 interchange reconstruction project is part of a larger project MnDOT refers to as the Hiawatha Corridor Project. Hwy 55 and Hiawatha are alternate names for the same road. The project involves reconstruction of Hwy 55 between I-94 and Hwy 62/Crosstown. The Hwy 55/62 interchange is located just beyond the northeast perimeter of the Minneapolis/St. Paul International (MSP) airport. The project began in 1988 after decades of planning. It includes construction of the Twin City metro area's first Light Rail Transit (LRT) line from downtown Minneapolis to the airport and the Mall of America in Bloomington. [MNDOT-A]
History of Camp Coldwater and Coldwater Spring
Camp Coldwater is a Minnesota pioneer village site located in south Minneapolis and a part of Fort Snelling State Park. It has been called the Birth Place of Minnesota. It is registered as National Historic Landmark [Sierra]. Archeological evidence &Mac246; some from as long ago as 9,000 years - indicates early Native American settlements at this location [Jeffrey, 2000]. In 1820 soldiers of 5th U.S. Infantry camped at the spring for three summers while building Fort Snelling. The center of the historic settlement was the cold, flowing spring for which the community took its name. [White].
Early in the Spring [of 1820] Col. Leavenworth discovered the fountain of water where the troops now are, & to which they moved as soon as the ice would permit. It is a healthy situation, about 200 feet above the river, and the water gushing out of a lime stone rock is excellent. It is called "Camp Cold Water." -J ames Duane Doty, Camp Cold Water, July 31, 1820 [White]
Spring water was piped to the fort until the 1940s. In 1960 a portion of the land that included the spring was fenced by the US Bureau of Mines for Cold War research. The fence remained until 1997 when Camp Coldwater was vacated. [White], [Jeffrey, 2000]. The U.S. Fish and Wildlife Service took control of the site in 2002 [TRIB-16, 2002].
The spring flows at over 100,000 gallons a day. It is 470 F year around. The spring forms Coldwater Creek which flows down the Mississippi River gorge into a wetland and a waterfall before emptying into the Mississippi river. [Jeffrey, 2000].
The Minnehaha Creek WaterShed District
Watershed Districts are special purpose units of local government whose boundaries follow natural watershed divides. The Minnesota State Legislature established the Watershed Act in 1955. That act recognizes that hydrological boundaries rarely match political boundaries, so it established watershed districts to integrate water management efforts between city, county and state agencies. [BWSR, 2000], [Smith, 1997]. As outlined by statute, the purposes of Watershed Districts are:
To conserve the natural resources of the state by land use planning, flood control, and
other conservation projects by using sound scientific principles for the protection of the
public health and welfare and the provident use of the natural resources. [BWSR, 2000]
The Minnehaha Creek Watershed District (MCWD) is chiefly responsible for protecting the water resources of the Minnehaha Creek watershed, located in the Minneapolis area of Minnesota. It covers approximately 181 square miles that ultimately drain into Minnehaha Creek, which then enters the Mississippi River. Besides Minnehaha Creek, the watershed includes well-known bodies of water such as Lake Minnetonka, the Minneapolis chain of lakes, and Minnehaha Falls. There are eight major creeks, 129 lakes, and thousands of wetlands within the district. [MCWD-10]
The Minnesota Department of Transportation
The Minnesota Department of Transportation&Mac226;s (MnDOT) role is to develop and implement policies, plans and programs for highways, railroads, commercial waterways, aeronautics, public transit and motor carriers. Minnesota has the fifth largest highway system in the United States. MnDOT is building a light rail transit line in Minneapolis. The Hwy 55/62 interchange construction project is part of the light rail project. [MnDOT-E].
B. THE DISPUTE
When MnDOT began preparing for the reconstruction of the hwy 55/62 interchange, the MCWD worried that the construction may permanently alter the flow of groundwater to Camp Coldwater Springs (CCS), about 300 yards from the planned construction site. It was then learned that CCS and the interchange construction site were not under the jurisdiction of a watershed district. Both the MCWD and an adjacent watershed district petitioned the Minnesota Board of Water and Soil Resources (BWSR) to extend its boundaries to include this area. The adjacent watershed district has no adopted rules so they have no permitting authority over construction in the area. At a public hearing, MnDOT supported the adjacent watershed's petition. The BWSR assigned the Camp Coldwater Spring area to the MCWD and the area that includes the construction site to the other watershed district. [MCWD-05, 2002].
As construction proceeded, the MCWD monitored the flow of water at CCS. They observed that when MnDOT pumped water at the construction site, the flow to CCS and was diminished. When pumping stopped, flow rates increased at CCS. In March of 2001, the MCWD requested access to the construction site to allow dye tests to explore the possible groundwater connections between the construction site and CCS. MnDOT raised barriers to this proposal. When threatened with court action by MCWD, they permitted two dye tests. Neither test was at the Hwy 62/55 intersection which is where the proposed permanent drain systems would be at their lowest point. Dye was introduced at a location between the intersection and CCS. The dye was detected at CCS within 90 minutes. This indicated a direct and efficient fracture path. [MCWD-05, 2002]. MnDOT still refused to accommodate a test at the intersection, citing construction time tables. [TRIB-13, 2001]. They warned that the dye test might delay the light rail construction project by one year [TRIB-05, 2001].
A New Law to Protect Camp Coldwater Spring
At this time, in May 2001, Governor Ventura signed into law legislation protecting Camp Coldwater Spring. This legislation extended the Minnesota Historic Sites Act and the Minnesota Field Archaeology Act. The Fort Snelling State Historic Site boundaries, originally established in 1952, were expanded to include Camp Coldwater Springs. [TRIB-04, 2001].
Neither the state, nor a unit of metropolitan government, nor a political subdivision of the state may take any action that may diminish the flow of water to or from Camp Coldwater Springs. [Revisor, 2000 section 138.73, 1.16 subdivision 13].
Citing this new law and the Minnesota Environmental Rights Act, the MCWD filed suit in Hennepin County District Court (now the Fourth Judicial District Court, State of Minnesota) to halt groundwater pumping at the intersection so that a dye test could be conducted [MCWD-02, 2001]. The Minnesota Environmental Rights Act gives individuals the right to sue to protect the state's natural resources from pollution, impairment, or destruction. [Revisor, 2003 Chapter 116B].
The judge ruled in favor of MCWD and ordered MnDOT to cease groundwater pumping at the intersection to allow for the dye trace testing. Seventeen days later, dye was detected at CCS, confirming that it receives groundwater from the area of the intersection. MnDOT took no corrective action and proceeded with groundwater pumping and construction. [MCWD-05, 2002].
MCWD filed suit in Hennepin County District Court to prevent MnDOT from proceeding without redesigning the interchange. In pre-trial negotiations, MnDOT and MCWD agreed on a course of action. The stipulation was entered as an order of the court. A few weeks later MnDOT presented a design that violated the stipulation as it did not minimize groundwater withdrawal. An independent consultant confirmed that the design did not conform to the stipulation. MnDOT and MCWD agreed on another solution but with MnDOT expressing concern about the cost estimate of $4 - $8 million. [MCWD-03, 2001] [MCWD-05, 2002] [TRIB-09, 2001].
In August of 2001, MnDOT filed a motion asking that the court stipulation be withdrawn and that they be relieved of responsibility for groundwater protection. In September 2001, MnDOT announced they were terminating the project. They argued that the legislation protecting CCS flow set an unattainable standard and that the cost to comply with the stipulation was higher than expected. [MCWD-04, 2001] [MCWD-05, 2002] [TRIB-11, 2001] [TRIB-12, 2001] [TRIB-13, 2001]
More Scientific Studies
Later in 2001, the Federal Highway Administration stated that it will not allow damage to CCS. After conducting a hydrogeologic review, they issued a report confirming that there is a groundwater connection between the interchange and the CCS [MCWD-05, 2002]. In February of 2002, the MCWD presented new scientific data finding a 30% reduction in flow to CCS from the MnDOT construction site at the interchange. MnDOT rejected these scientific studies citing similar fluctuations at monitoring wells elsewhere in south Minneapolis, too far away to be affected by the pumping. MnDOT concluded that other factors like lower rain fall amounts produced the lower water levels. MCWD argued that data from these wells was not useful because there was separate pumping occurring in that area for another large project. MnDOT would not accommodate district requests to turn over recent data from those wells. [MCWD-06, 2001] [MCWD-08, 2001] [TRIB-15, 2002].
During the 2002 Legislative session, MnDOT lobbied to have the law protecting Coldwater Spring repealed but those attempts failed [Losure, 2002, p 227]. MnDOT and the MCWD reached a tentative agreement in 2002, in part because the state Legislature exempted any compromise between MnDOT and the MCWD from the law protecting Camp Coldwater Spring. The compromise plan is estimated to cost about $500,000, much lower than MnDOT&Mac226;s previous estimate of $4 to $8 million. [TRIB-17, 2002]. MCWD approved the plan in spring of 2003 and construction began in July, with completion scheduled for 2005. [TRIB-18, 2003]. Highlights of the revised interchange design:
· Reduced depth of excavation.
· Control of surface water run-off by 4 shallow settling ponds.
· A roadbed liner that will prevent polluted highway surface water from flowing to Camp Coldwater Spring.
· Monitoring of groundwater flow by MnDOT and pre-defined 'trigger events' that automatically result in MnDOT and MCWD discussion on appropriate remediation efforts. [MCWD-09, 2003]
The research focus is on (1) understanding the Minnesota Environmental Policy Act and (2) review of MnDOT environmental assessments for the Hwy 55/Hiawatha Corridor construction project.
Minnesota Environmental Policy Act
The Minnesota Environmental Policy Act (MEPA) of 1973 is the state equivalent to the National Environmental Policy Act (NEPA) of 1970. Like the national act, MEPA is a broad policy statement that:
· Establishes a state environmental quality board.
· Requires state agencies to consider the environmental consequences of their regulations and actions.
· Requires environmental assessments for projects with significant environmental effects resulting from any state agency action. [Revisor, 2003 Ch 116] [Kubasek, p 122]
The mission of the Minnesota Environmental Quality Board (MEQB) is to lead Minnesota environmental policy, ensure compliance with state environmental policy, manage the environmental review process, and coordinate environmental agencies and programs. [MEQB, 2003] [Revisor, 2003 Ch 116C]
Environmental Impact Statements
Where there is potential for significant environmental effects resulting from any major state agency action, the action must be preceded by a detailed environmental impact statement (EIS). It should describe the proposed action in detail, analyze its significant environmental impacts, discusses appropriate alternatives to the proposed action and their impacts, and explore methods by which adverse environmental impacts of an action could be mitigated. [Revisor, 2003 Ch 116D]. The Minnesota Environmental Quality Board (MEQB) determines the categories of actions for which an EIS is necessary [MEQB, 2003].
MnDOT Environmental Assessments for the Hwy 55 Project
MnDOT completed a Final Environmental Impact Statement (EIS) for the Hiawatha Corridor Project in 1985. According to the MEQB, that document was still legally adequate in 2000 when the dispute between MnDOT and the MCWD began. According to MnDOT, the 1983 Draft EIS together with the 1985 Final EIS adequately evaluated the impacts of the entire project corridor. [MnDOT-A].
In 1999, MnDOT addressed the issue of whether an updated or new environmental impact statement was needed to address concerns about Camp Coldwater Springs:
'Camp Coldwater Spring was not identified in either the 1983 or 1985 statements because the project avoids the spring, located on Bureau of Mines property. The project has been designed to avoid impacting the flow of groundwater to the spring. MnDOT will monitor both water quantity and quality during construction to insure that the spring is not impacted'. [MnDOT-B].
The research question is: The Hwy 55/62 interchange reconstruction project and Camp Coldwater Springs: Did the Minnesota Department of Transportation violate the Minnesota Environmental Policy Act? To answer that question the primary analysis focuses on:
A summary of MnDOT actions during the dispute.
MNDOT action compared to the state&Mac226;s environmental policy.
The role of the Minnesota Environmental Quality Board in this dispute.
Summary of MnDOT Actions
· Did not assess the environmental impact to Camp Coldwater Springs because it is not in the immediate path of the construction.
· Supported publicly the assignment of the construction area and Camp Coldwater Springs to a watershed district adjacent to the Minnehaha Creek Watershed District that had no permitting authority.
· Refused to accommodate a dye trace test at the intersection.
· Refused to change the design or stop construction when the dye trace test (ordered by the court) established a connection between the intersection and Camp Cold Spring.
· Redesigned the intersection to a standard far below that stipulated by the court. The redesign did not include a continuous impervious layer and six times as much groundwater as stipulated would be withdrawn.
· Filed a motion asking that the court stipulation be withdrawn and that they be relieved of responsibility for groundwater protection.
· Terminated the project because of higher than expected cost estimates to comply with the court ordered stipulations.
· Lobbied to remove the legislation protecting Camp Coldwater Springs.
· Rejected comprehensive hydrogeologic studies done by experts working for the Minnehaha Creek Watershed District, even after an independent assessment by the Federal Highway Administration confirmed groundwater connection between the interchange and Camp Coldwater Spring.
· Would not share their data that they cited in supporting their claim that CCS would not be impacted by the construction.
In reviewing the MnDOT mission statement and strategic directions, there is no reference to the environment or of protecting and preserving the state's environmental resources. Their strategic focus is on building roads, 'Build More, Build Faster' [MnDOT-G, 2003].
MnDOT Actions vs. The Minnesota Environmental Policy Act (MEPA)
So how do these MnDOT actions compare with the state's environmental policy act? Following are the MEPA goals and MEPA instructions to state agencies and departments that are most applicable to this research.
Assess environmental impacts for major projects; EIS required.
Serve as trustee of the environment for succeeding generations (goal 1).
Preserve important historic, cultural, and natural aspects of our national heritage (goal 4). Define, designate, and protect environmentally sensitive areas (goal 7).
Ensure that environmental amenities and values will be given at least equal consideration in decision making along with economic and technical considerations (instruction 3).
The Role of the Minnesota Environmental Quality Board (MEQB)
The MEQB manages the environmental review process for the state. Since the MEQB permitted MnDOT to ignore the impact of the Hwy 55 construction on Camp Coldwater Springs, a brief analysis of the MEQB is provided.
MEQB is made up of a chair, the heads of 10 of state agencies, and a few citizens. All are appointed by the Governor. So the body that oversees and administers the state&Mac226;s environmental policy consists entirely of political appointments. The Commissioner of MnDOT is one of the members. There are no scientists on the MEQB. [MEQB, 2003] [Revisor, 2003 Ch 116C].
In summary, MnDOT did not assess the environmental impact to Camp Coldwater Spring and the head of MnDOT is on the board that manages the state&Mac226;s environmental review process and ensures compliance with the state&Mac226;s environmental policy.
So, did the Minnesota Department of Transportation violate the Minnesota Environmental Protection Act? Based on the actions of MnDOT versus the goals and instructions specified in MEPA, yes.
MnDOT displayed a near total disregard for Camp Coldwater Spring; they focused only on the cost and schedule of the construction as matters of interest, in direct violation of MEPA. With the full weight of their office, MnDOT actively and aggressively fought efforts to protect Camp Coldwater Spring; behavior in direct contradiction of the instructions to state agencies in MEPA. They attempted to circumvent agreements and court stipulations, lobbied to repeal the law protecting the spring, fought testing, and disputed all scientific data presented to them.
Based on the review of the legal aspects of this dispute, it is evident that MEPA alone is insufficient legally to protect any natural resource or prohibit any state agency from acting in an environmentally reckless manner. It is a broad policy statement that provides few legal constraints or remedies. The state's groundwater protection laws are similarly broad and provide no information helpful to this research [Revisor, 2003 Ch 103H]. It is also concluded that by establishing the Minnesota Environmentally Quality Board as a body consisting only of gubernatorial political appointments, the state's environmental review policy may be fundamentally flawed.
Why worry about Camp Coldwater Spring (CCS), or any groundwater? We should worry because groundwater is a preciously rare natural resource. Less than .01 % of all water is accessible for human use. [UMich, 2003]. When unveiling a new water conservation initiative in October of 2003, Minnesota Gov. Tim Pawlenty said,
'We have more freshwater than any other state. Protecting and restoring this crown jewel of our quality of life should be our No.1 environmental priority' [TRIB-19].
Considering that CCS has historical and cultural significance as well as significance as a fresh water resource, it is very disappointing that a state agency is so negligent in its duty to protect our environment. Specialized legislation was needed to save CCS from MnDOT. What will happen in similar situations now or in the future? Since MEPA and current groundwater laws were not enough to force MnDOT to alter a construction design that would significantly decrease groundwater flow, it would seem prudent to enact legislation to protect all or most groundwater.
This research examined just one MnDOT project. But one must now question if the callous disregard for environmental protection MnDOT demonstrated in this project is a common practice. It is doubtful that any other watershed district in the state beside the Minnehaha Creek Watershed District has the financial means to challenge and sue MnDOT. MCWD includes many affluent urban and suburban communities; a funding base likely unequalled in the state. They got the attention of state lawmakers who passed emergency legislation to protect CCS. They were able to hire expert hydrogeologists to conduct robust scientific studies and to retain an attorney who specializes in water law. It is a rare situation where a watershed district's legal counsel, scientific experts, and political connections are better than MnDOT's.
In the end, Camp Coldwater Spring was saved and the Hwy 55 construction is proceeding. A combination of responsive political action and good science overcame the threat posed by the MnDOT project. In the coming years it'll be interesting to see if Gov. Pawlenty treats fresh water like a 'crown jewel'.
What can we do?
It is asked that the intended audience of this research scrutinize and monitor MnDOT plans and actions. A great way to get involved with groundwater issues is participation with a local watershed district. A directory of Minnesota watershed districts is available online. Watershed districts provide a forum for public input, and may have a citizen advisory committee. Additionally, voters in Minnesota should understand that the board that oversees the state's environmental policy consists entirely of political appointments made by the governor.
G. PROFESSIONAL DISCLOSURE
The researcher's brother is Mark Gleason. Mark represented Richfield and South Minneapolis in the Minnesota State House of Representatives from 1998-2002. His district included Camp Coldwater Spring and the site of the Hwy 55/62 interchange reconstruction. He was the chief author of the House bill protecting Camp Coldwater Spring.
contact the author: email.
REFERENCES will be posted soon.