Serving Northern St. Louis County, Minnesota

Tribes could see more pollution control powers

Marshall Helmberger
Posted 11/22/16

REGIONAL— In recent years, tribal governments have become far more outspoken in their opposition to developments that threaten water quality on tribal lands. But for years, tribes have not had …

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Tribes could see more pollution control powers

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REGIONAL— In recent years, tribal governments have become far more outspoken in their opposition to developments that threaten water quality on tribal lands. But for years, tribes have not had sufficient authority in many cases to take action when polluters located off the reservation were negatively affecting tribal waters.

Those days may soon be over, in part due to the efforts of northeastern Minnesota’s Fond du Lac band.

When Congress updated the federal Clean Water Act in the 1990s, it granted tribal governments authority in some cases to regulate even off-reservation polluters when they impact tribal resources, much as state authorities, like the Minnesota Pollution Control Agency, have done for years.

More than 50 tribal entities, including Fond du Lac, have long had the authority to set their own water quality standards for tribally-controlled waters. Yet those same tribes had lacked the ability to enforce regulatory authority on polluters located off the reservation, even when they were harming tribal resources. The Clean Water Act had authorized the Environmental Protection Agency to extend those powers to tribes, but for decades the federal agency had failed to establish a process for actually doing so.

That changed late last month when the EPA published new guidelines in the Federal Register that established the process for tribes to apply for what is known as “Treatment as a State” or TAS. The Fond du Lac band could be one of the first tribal governments in the nation to apply for the new authority, although the tribal council has not yet made a final decision to do so, according to Nancy Schuldt, water projects coordinator for the band. “It’s something we’ve been interested in pursuing for about 10-12 years,” said Schuldt. “Years ago, we were on that track, but we were stonewalled by the lack of a process. We were the instigators for establishing the process that’s now in place.”

While Schuldt said the band generally benefits from very high quality waters and aquatic environments on the reservation, she said the St. Louis River, with its high mercury levels, is a noted exception, one that has become a focus of the band’s attention.

And that’s where tribal officials could butt heads with industries in the state, like taconite mines, which are believed to contribute to the mercury problem in the St. Louis River. “There likely will be challenges,” said Schuldt, if tribes seek to exercise their newfound authority. “There are regulated industries that are not very comfortable with tribal authority in this area,” she said.

One of the biggest areas of potential concern for Fond du Lac officials is the discharge of high levels of sulfates from taconite tailings basins. While concerns about sulfates have most often centered around their impact to wild rice, Schuldt said the link to mercury mobilization in aquatic environments is another serious issue. While all forms of mercury are toxic to humans, research has demonstrated that elemental mercury is not readily absorbed into the human bloodstream through the gut. But when mercury is converted to methylmercury, it is readily absorbed, significantly increasing its toxic effects. Schuldt said research is now suggesting that sulfates in wetlands appear to facilitate the conversion of elemental mercury to methylmercury. That’s normally not a high risk, said Schuldt, since sulfate levels are naturally very low in the region. “But where sulfate is added to a system that is naturally very low, it’s likely to increase mercury methylization,” she said.

At this point, however, Schuldt said tribal officials can’t point to any particular factor with certainty. She noted that many peatlands in the St. Louis River watershed have been ditched over the years and that discharge from those areas might be contributing methylmercury to the river.

Several years ago, the band joined forces with the EPA and the MPCA on a joint study of the river in hopes of learning more about the sources of methylmercury contamination. About two and a half years into the study, Schuldt said the MPCA abruptly withdrew. Since then, she said, the band, working in cooperation with other agencies, has continued to collect data in hopes of finding answers to the problem.

Whether those answers focus remedial efforts on stemming discharge from bog ditches, taconite tailings basins, or other factors remains to be seen.

First, said Schuldt, the Fond du Lac tribal council will need to approve seeking TAS authority. The former tribal chair, Karen Diver, who had strongly supported the push for the authority, left her position last November to assume a post in the Obama administration. “We’re under new leadership and they’ll have to make that decision,” said Schuldt. “But we’re getting our ducks in a row. We’ll probably be looking at early next year to apply, if we’re greenlighted.”

The other wild card is how the EPA under an incoming Trump administration might respond to such a request. Given that the authority is pretty clearly expressed in the Clean Water Act, the agency will likely have to respond in some manner, although delay is certainly a possibility.

And even if the EPA eventually grants the authority to Fond du Lac, Schuldt said decisions on any remedial plan the band might develop would be subject to EPA approval. “It would not work in a vacuum,” said Schuldt. “We would be working closely with EPA Region 5 to identify the regulatory actions that need to take place, and we would want to work with our state partners as well.”

The Timberjay sought comment for this story from the Minnesota Iron Mining Association, but the organization had no immediate comment on the issue.

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