REGIONAL— A widely-published Canadian expert on wetlands and mining is challenging the adequacy of the science behind the environmental review of the proposed PolyMet copper-nickel mine, and that could pose new legal hurdles for the company and the regulators overseeing permitting of the project.

Among the nearly two-dozen permits that the company will need to begin mining operations is what’s known as a Section 404 wetlands permit, which must be issued by the Army Corps of Engineers. The Army Corps decision is subject to the complex provisions of the National Environmental Policy Act, or NEPA, which requires that the federal agency thoroughly examine a long list of potential impacts using scientifically-justifiable methods. The Environmental Impact Statement approved by the Minnesota Department of Natural Resources early last year, was supposed to provide that “hard look” by the agencies.

But Professor Jonathon Price, who leads the Wetlands Hydrology Research Laboratory at the University of Waterloo in Ontario, said the study failed to provide sufficient information to predict the potential loss of valuable wetlands in the vicinity of the proposed mine due the drawdown of water into the pit during mining operations. Price, in a report he prepared under contract with the group Water Legacy, calls the conclusions reached in the EIS “unsupported” and says the lack of good data in the study “creates an unacceptable degree of uncertainty.”

While some might be tempted to dismiss Price’s conclusions as the work of an environmentally-friendly academic, Price most often works for industry, particularly mining companies, which have relied on him for years to develop mitigation plans and wetlands modeling for Canadian hardrock mines as well as oil sands operations, where he has worked extensively on wetlands re-creation following oil sands stripping.

According to his university bio, “Dr. Price has…

authored and co-authored over 160 peer-reviewed journal articles on

topics including soil-water physics, micrometeorology, water quality,

contaminant transport, ecology, soil development as well as basin-scale hydrology of wetlands.”

Water Legacy attorney Paula Maccabee, who hired Price to review the EIS, noted that federal regulations require the Army Corps to certify that the wetlands impacts were subject to rigorous review— and Maccabee suspects this could be one area where the EIS fell woefully short. “This wasn’t a case of bad science,” said Maccabee, “there really was no science involved on this issue.”

The primary flaw, according to Price, was that the EIS relied on data collected from a former iron ore pit on the West Range to estimate the degree to which the creation of the PolyMet pit would lower groundwater levels and effectively drain some of the complex wetlands surrounding the proposed mine. Price called such an approach unacceptable because the EIS failed to take into account significant hydrological differences between the two mine sites that made the comparison (or analog) pit of little or no value for making predictions. Instead, Price concludes that the EIS should have used its water model, known as MODFLOW, to offer predictions of the potential wetlands drawdown. Doing so would have required more data collection in and around the PolyMet site, but Price said the EIS would have benefitted from the effort.

“As an applied scientist who has worked with mining facilities and other extractive industries, the lack of information regarding the PolyMet mine site hydrology was striking,” writes Price. “At the Victor Mine in Canada, for example, dozens of monitoring wells were required to identify area hydrogeology. In contrast, underlying consultants’ reports and the PolyMet FEIS appear to rely heavily on a short-­term pump test in a single well in one of the pertinent rock formations to reach their conclusions about the impacts of mine drawdown on wetlands and peatlands. From a scientific point of view, the information disclosed in the PolyMet FEIS and its underlying studies is inadequate to estimate impacts on wetlands.”

While Price does not offer his own estimate of wetlands loss due to the draining effect of the PolyMet pit, he wrote: “Lessons learned from the Victor mine suggest that NorthMet mine site wetlands drawdown is likely to be more extensive than predicted by the PolyMet analog hypothesis.”

DNR officials acknowledge that the EIS the agency conducted was “not performed to characterize impacts, but rather was done to inform where monitoring should take place for those areas that were identified as having a potential for indirect wetland effects.”

Assistant DNR Commissioner Barb Naramore stated that the function of the EIS is to identify and disclose potential environmental effects. “Where reasonably available information leaves uncertainties that can best be resolved through monitoring the actual project, statutory and case law support addressing these uncertainties through adaptive management,” she stated.

Naramore said the DNR opted to look at existing Iron Range pits, rather than modeling, to assess the risk for indirect wetland effects because it was a more straightforward approach, and she notes that the EIS clearly states that the co-lead agencies, including the Army Corps, were not relying solely on the information contained in the EIS. “Rather, if the project proceeds to construction and operation, wetlands would be monitored for potential indirect effects as part of an adaptive management plan. Permit conditions would include a plan for additional compensatory mitigation if indirect wetland impacts were identified, and appropriate changes to the adaptive management plan would be made as required,” stated Naramore.

DNR Commissioner Tom Landwehr declared the EIS adequate in March 2016. The Army Corps, which was a cooperating agency in the EIS process, never officially signed off on the adequacy of the document. The Army Corps has given no public indication when, or if, it plans to issue a Section 404 permit to PolyMet, but Maccabee said she expects the federal agency will eventually do so.

DNR officials tell the Timberjay that they now plan to issue their permit to mine decision by the end of the year.

Price’s conclusions and his expertise in the subject matter pose a new challenge for the Army Corps nonetheless, leaving it more vulnerable to legal challenge were it to issue the wetlands permit requested by PolyMet.

It’s an issue that Maccabee has been tracking for some time, and it came up in a June 29, 2017, letter to the Army Corps, in which Maccabee urged the federal agency to conduct supplement environmental review on several topics, including the indirect wetland impacts.

The complexity of the issue took on greater significance following the proposal by PolyMet to alter its original plans to build a wastewater treatment facility at the mine site. Instead, the company now plans to pipeline contaminated water to the processing plant located nine miles away. Under the original plan, wastewater from the mine site would have been treated before being discharged into the adjacent aquatic environment. The new proposal, if approved, would pump as much as 3.7 billion gallons of water annually away from the mine site’s watershed, potentially exacerbating the wetlands drawdown.

By raising the issue earlier this year, and by arguing that the Army Corps should order a new environmental review to take a closer look at the wetlands impact, Maccabee and Water Legacy have laid the groundwork for a new line of legal challenge to the PolyMet project should the Army Corps issue a Section 404 permit.

And this challenge would likely be tougher for Minnesota’s congressional delegation to overturn in Washington. Maccabee’s lawsuit alleging that the Forest Service gave PolyMet a “sweetheart” deal in a 6,650-acre land exchange clearing the way for the proposed mine, has been the target of a legislative initiative by Eighth District Rep. Rick Nolan to approve the exchange in law.

Nolan would likely face broader opposition, however, if he attempted to short circuit environmental review standards established in the Clean Water Act.