PolyMet wetlands permit revoked - here’s what you need to know

On June 6, the U.S. Army Corps of Engineers announced that it had revoked the wetlands destruction permit (Clean Water Act Section 404) for the PolyMet mine proposal. This is a critical turning point in the long legal and regulatory saga of this proposed sulfide mine, and there are a lot of good questions about this decision and what it means. 

What happened?

The U.S. Army Corps of Engineers (USACE) revoked a key permit needed by PolyMet to build a mine. This permit had been stayed (suspended) after a federal district court found that the U.S. Environmental Protection Agency (EPA) had failed to make a key determination when the permit was proposed - whether the permit may affect a downstream state’s (in this case, a state and a federally recognized tribe) water. The court ordered the EPA to make that determination. The EPA then found that the PolyMet wetlands permit may affect the Fond du Lac Band of Lake Superior Chippewa’s water quality standards for mercury and specific conductance (a measure of “salty” pollutants such as sulfates and chlorides.) This led to a three-day hearing in 2021 where Fond du Lac, PolyMet, the EPA, and members of the public presented evidence to the Army Corps. 

After examining the evidence, the Army Corps revoked the permit because it would violate Fond du Lac’s water quality standards, and no conditions could be added to the permit to avoid those violations. Read the Army Corps decision here. 

Is this a big deal?

Yes, for several reasons. First, this is one of the key permits needed to construct and operate the proposed mine. Without it, the PolyMet proposal cannot proceed. 

Second, this is the first time that a tribal government has successfully asserted their sovereign rights through the section of the Clean Water Act that protects downstream states. The Fond du Lac Band of Lake Superior Chippewa has a well-regarded, well-managed water quality program that is treated as a state under the Clean Water Act. It’s very important that the Army Corps decision respected Fond du Lac’s sovereignty and recognized the Band’s need to protect its citizens from mercury pollution. 

What does “downstream state” mean? 

Many times, waters covered by the Clean Water Act cross state boundaries. Sometimes, states have different water quality standards. All water quality standards need to be based on science, but the unique conditions of each state mean that there can be differences.  Federally recognized tribal governments with water quality programs can apply to be treated as a “state” under the Clean Water Act, and set their own water quality standards. The Fond du Lac Band of Lake Superior Chippewa was recognized for “treatment as a state” in 1996, adopted its first set of water quality standards in 2001, and its standards were reviewed and approved by the Environmental Protection Agency most recently in 2020.

What is this permit and why does PolyMet need it?

The permit is called a “Section 404 permit,” named for the section of the Clean Water Act that is about wetlands. This permit is required when a proposal would damage wetlands that are covered by the Clean Water Act. The PolyMet “NorthMet” mine site is in the middle of a large wetlands complex next to the Partridge River, and their permit application states that the proposal would directly destroy 912 acres of wetlands. In addition, thousands of acres of nearby wetlands may be drained and dried out by the proposed mine. 

Can’t PolyMet just resubmit a new application for a permit?

While PolyMet can reapply for a permit after redesigning their proposal, the USACE decision is based on a scientific opinion that digging up and drying the wetlands at the PolyMet mine site would send mercury and other pollutants downstream. In other words, it would be very difficult to redesign the mine to avoid this. Any new permit application would have to go through a public comment process and would also be subject to legal challenge if a new permit was issued.

What does this decision mean now that PolyMet and Teck have merged?

This is unclear. Teck’s Mesaba deposit, located about 3 miles east of the PolyMet mine site, was not directly covered by the USACE decision to revoke the Section 404 permit. However, the wetlands and other features of the Mesaba deposit are similar. Since the Mesaba deposit has never undergone environmental review or permitting, if “NewRange Copper Nickel LLC” were to seek to develop it, it would be starting from scratch.

What are the likely next steps after this decision?

This is a final decision of the Army Corps, and all final decisions are subject to potential appeal in the courts. If PolyMet chooses to appeal the decision, it would have to show that the decision was arbitrary, capricious, and not based on substantial evidence. As of this date, no appeal of the decision has been filed. If one is filed, MCEA will be involved in some way.

PolyMet may decide, as it did in 2010, to redesign the proposal and resubmit it for new permits. If it does, this would start a new permitting process that MCEA would be involved in. After the decision, PolyMet has said it plans to announce “in the coming weeks” how it will respond. 

Aaron Klemz, Chief Strategy Officer, St. Paul Office, 6/21/23