WaterLegacy Research – EPA Authority to Protect Water Quality

WaterLegacy has conducted extensive research into the Clean Water Act authority of the U.S. EPA under Section 404 to review and, if necessary, veto Army Corps of Engineers including a legal review and discussion of applicability as described in the Draft EIS (November 2009) of the PolyMet sulfide mining project in northeastern Minnesota.

WaterLegacy September 14, 2010 Letter to the EPA requested that PolyMet water resources be classified as Aquatic Resources of National Importance and that the U.S. EPA find that the PolyMet will have substantial and unacceptable impacts on aquatic resources of national importance and on municipal water supplies, fisheries and wildlife in violation of the Clean Water Act. WaterLegacy’s advocacy cited precedent suggesting that the EPA should veto any wetlands destruction permit proposed by the Army Corps for the PolyMet Project and included various exhibits pertaining to the affected resources:

ExhibitG_MDNRStLouisRiverStudy
 
Additional information on EPA's Section 404 veto authority is provided on EPA’s website.

WaterLegacy Defense of Wetlands & Streams from Mining Expansion

WaterLegacy has worked in collaboration with tribal allies to demand greater scrutiny and protection of water resources before expanding taconite tailings basin disposal facilities destroy additional wetland acreage in the Lake Superior watershed.

Minntac Tailings Basin Expansion

WaterLegacy submitted detailed comments to the Minnesota Department of Natural Resources, with copies to the U.S. Army Corps of Engineers and the U.S. EPA requesting that an Environmental Impact Statement be prepared before U. S. Steel’s Minntac Tailings Basin is allowed another “extension,” impacting 483 acres of land and more than 70 acres of wetlands, removing more than 4,000 lineal feet of streams and impacting 430 acres of watershed contributing area.

WaterLegacy emphasized the enormous cumulative impacts of the Minntac mine and tailings basin, impacting 45,123 linear feet (8.5 miles) of streams and over 10,000 acres of watershed without adequate analysis or mitigation. WaterLegacy also emphasized that the existing Minntac tailings basin is violating water quality standards, so further expansion would conflict with Clean Water Act requirements.

Read WaterLegacy Minntac Tailings Basin Comment, September 5, 2012.

UTAC (United Taconite) Tailings Basin Expansion

WaterLegacy submitted detailed comments in response to the U.S. Army Corps of Engineers (Army Corps) proposal to modify a wetlands destruction permit issued in 1982 for the UTAC tailings basin. The Army Corps proposed to require wetlands replacement before UTAC is allowed to expand its tailings basin and affect approximately 1,300 acres of wetlands and adjacent waterways. Our comments were also sent to Minnesota Pollution Control Agency and U.S. EPA staff.

WaterLegacy argued that the outdated UTAC wetlands destruction permit should be suspended to protect the public interest in water resources. WaterLegacy also advocated that a comprehensive Environmental Impact Statement be prepared to evaluate water quality impacts and alternatives as well as mitigation of wetlands destruction. WaterLegacy cited monitoring reports showing that pollution from the existing UTAC tailings basin violates water quality standards. Given the lack of effluent limits in existing UTAC tailings basin permits (which neither require containment or treatment of tailings basin pollution), WaterLegacy argued that conversion of wetlands to expand the UTAC tailings disposal facility would violate the Clean Water Act.

Read WaterLegacy UTAC Tailings Basin Comment, November 21, 2012.

WaterLegacy Advocacy to Ensure Citizen Participation in Water Certification Decisions

In addition to WaterLegacy’s comments on the PolyMet, Minntac and UTAC projects, WaterLegacy is requesting the Army Corps and EPA to conduct a more robust evaluation under the Clean Water Act of tailings basin expansion impacts to drinking water, fishing, wildlife and aquatic resources of national importance.

WaterLegacy is also working with the Minnesota Pollution Control Agency (MPCA) to ensure that citizens have an opportunity to participate in the administrative process before a decision is made whether or not to certify that destruction of wetlands is permissible under the Clean Water Act.

As a result of this advocacy, the MPCA has committed to go beyond the strict requirements of the rules to enhance public engagement in the certification process for major wetlands destruction cases, like PolyMet, Minntac and UTAC. In an email to Counsel for WaterLegacy, on November 8, 2012  MPCA staff member Dave Richfield wrote:

“This morning [Deputy Commissioner] Michelle Beeman and I further discussed the public notice process for 401 certification. We agree, for the purpose of ensuring public engagement, to go above and beyond the process allowed by Minnesota Rules 7001 and provide public notice of the MPCA preliminary determinations (draft 401 certification) for major cases. From this day forward our process will embrace this change.

“My 401 staff and I met this morning to discuss this. They are working on updating our website to explain the new process and working to create a new mailing list  via our “govdelivery”  system for distribution of public notices.”

MPCA information on its Clean Water Act Section 401 certification process can be found on the Agency website.

 

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