1

March 13, 2014

VIA EMAIL AND HAND DELIVERED
Lisa Fay, EIS Project Manager MDNR Division of Ecological and Water Resources
Environmental Review Unit
500 Lafayette Road, Box 25
St. Paul, MN 55155-4025
Re: NorthMet Mining Project and Land Exchange
Supplemental Draft Environmental Impact Statement
Dear Ms. Fay:
The Nature Conservancy respectfully submits the following comments in response to the
Supplemental Draft Environmental Impact Statement issued December 6, 2013 for the above-
referenced NorthMet project. The Conservancy understands that these comments will be
included in the record of the U.S. Army Corps of Engineers relative to the Section 404 permit
application currently open for public comment as confirmed by email communications on March
6, 2014.


_________________________
Douglas T. Shaw, Ph.D.
Assistant Chapter Director
The Nature Conservancy in Minnesota, North Dakota, South Dakota

Minnesota, North Dakota, and South
Dakota
1101 West River Parkway Suite 200
Minneapolis, MN 55415-1291
Tel (612) 331-0700
Fax (612) 331-0770
nature.org

nature.org/wisconsin
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1. Executive Summary and Overview
The Nature Conservancy (“Conservancy”) files these comments because we believe the
Supplemental Draft Environmental Impact Statement (“SDEIS”) fails properly to identify, quantify
and discuss key aspects related to the impacts of the proposed NorthMet Project, the
alternatives that should be considered and the financial mechanisms by which mitigation of
impacts and restoration of habitat will occur. As a result, the SDEIS is inadequate for the
decision process.
The Conservancy is a global conservation organization working to conserve the lands and
waters on which all life depends. We work in all 50 U.S. states and 35 countries around the
world through the dedicated efforts of a diverse staff, including more than 550 scientists. In the
62 years since our founding in 1951, we have protected more than 119 million acres of land and
have a base of more than one million members and supporters worldwide. Using science to
guide our work, the Conservancy works collaboratively with partners to conserve Minnesota’s
most significant forests, lakes, rivers, streams, wetlands and prairies for the benefit of nature
and people. We own and manage more than 12,350 acres in northeast Minnesota, including
4,350 acres within the St. Louis River watershed. We work with partners to conserve 8.4 million
acres of critical lands and waters in Northeastern Minnesota that include the Superior National
Forest (“SNF”), the Boundary Waters Canoe Area and Wilderness, the St Louis River
headwaters and estuary, the Sand Lake-Seven Beavers landscape, the upper Cloquet River,
and numerous priority lake basins (Figure 1). The Conservancy is also a recognized expert in
the field of wetland and stream mitigation, executing over 36 wetland and stream banking, in-
lieu fee, (“ILF”) or permittee-responsible mitigation projects across 30 U.S. states. These
projects have directly led to the conservation of over 69,000 acres of wetlands and directed over
$235,000,000 in mitigation funding towards wetland and stream conservation projects.
The Conservancy’s primary interests in northeast Minnesota are the health of the forest
ecosystem and embedded wetlands, lakes, rivers and streams, especially the large intact
landscapes and watersheds noted above. Many of these watersheds are critical to maintaining
the high quality of waters flowing into Lake Superior via the St. Louis River and the Rainy River
via the Boundary Waters.
The proposed NorthMet Project would occur within the Sand Lake-Seven Beavers landscape,
an ecologically important forested wetland region that comprises the headwaters of the St. Louis
River and contains the state’s largest remaining areas of lowland conifer forest, as well as
extensive peatlands. The SNF lands that comprise the proposed NorthMet mine site have been
mapped as an area of high biodiversity significance by the Minnesota Biological Survey
(“MBS”). The Conservancy owns and manages the 6344-acre Sand Lake-Seven Beavers
Preserve in this landscape. We believe the conversion of the NorthMet site from lowland forest
to industrial mining and ore processing will result in a significant loss of high quality habitat that
is important to the ecological integrity of the Sand Lake-Seven Beavers landscape.
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The SDEIS does not adequately evaluate significant environmental concerns that would be
created by the development of the proposed NorthMet mine, including its associated processing
facility, waste areas and infrastructure. As described in the SDEIS, the NorthMet project would
leave a long-term legacy on the landscape and on the region’s waters. Its impacts would
require active treatment of water pollutants for up to five centuries, effectively in perpetuity.
While the SDEIS describes a best case scenario of mitigation and restoration, the historical
performance of mining operations around the world includes numerous instances of spills and
contamination.
1
The statistics on long-duration engineered systems indicate a high likelihood of
failure, and thus any analysis of the impacts must adhere to the highest standards of practice for
environmental assessment and review of the NorthMet proposal. Specifically, the EIS should
include and evaluate a range of meaningful project alternatives, potential modes of failure,
contingencies and mitigating measures, adaptive management, cumulative effects, transparent
estimates and durable vehicles for financial assurance. The SDEIS fails to meet these
necessary and appropriate standards.
Importantly, the Conservancy believes that a mine-by-mine approach to environmental
assessment is inadequate for informing environmental review, permitting decisions and
mitigating for mining impacts. Instead, regulatory agencies should take a regional, watershed
approach. This is because impacts to water resources are inherently regional and rarely
contained within the mining footprint. Also, these watersheds are still recovering from a century
of iron and taconite mining.
Despite the regional and cumulative nature of impacts, the cumulative effects assessment in the
NorthMet SDEIS receives inadequate focus, suffering from deficiencies in approach, scope of
affected area, future actions and environmental trends evaluated. The regional and cumulative
nature of mining impacts was recognized by the United States Environmental Protection Agency
(“USEPA”) in the recently released assessment of mining impacts in the salmon-dominated
Bristol Bay ecosystem in southwestern Alaska.
2
This regional assessment was completed under
the USEPA’s authority from the federal Clean Water Act and uses the watersheds of Bristol Bay
as the geographic frame of the assessment. Like these Alaskan watersheds, the St. Louis and
adjacent Rainy River watersheds of northern Minnesota represent continentally significant
aquatic ecosystems with natural resources that are ecologically, culturally and economically
important. They include pristine wilderness lakes, wild rice, walleye, and lake sturgeon in
addition, but not secondary, to significant mineral development potential. A watershed
framework similar to that used in the Bristol Bay assessment is needed to adequately evaluate
the direct and cumulative impacts of the NorthMet project and any subsequent mine
development in the region.

1
See e.g., Kuipers, J. 2003. Putting a Price on Pollution: Financial Assurance for Mine Reclamation and Closure,
Mineral Policy Center (Now Earthworks), Washington, DC.
2
U.S. Environmental Protection Agency, 2014. An Assessment of Potential Mining Impacts on Salmon Ecosystems
of Bristol Bay, Alaska, EPA 910-R-14-001ES, Region 10, Seattle, WA, January 2014 (hereinafter “Bristol Bay
Assessment”).
4

Watersheds are also the most appropriate frame for evaluating the adequacy of mitigation. A
watershed approach is necessary for addressing wetland and aquatic impacts and
implementing offsets in a way that best minimizes loss of wetland function across the region.
Activities, such as mining, where direct and indirect impacts to aquatic resources occur over a
large region and over many years, motivated inclusion of the watershed approach in the 2008
federal compensatory mitigation rule. The purpose of the federal compensatory mitigation rule
is to ensure full replacement for the loss of wetland functions and values.
3
Like a regional impact
assessment, a watershed approach to mitigation is developed in advance of significant impacts,
and utilizes watershed planning to determine and prioritize restoration needs and match them
with available compensatory resources. A watershed approach to mitigation can be
implemented and administered under the 2008 mitigation rule through an ILF program or
“umbrella” mitigation bank guided by a watershed conservation plan and subject to key
standards of practice.
Immediately following is a summary of the recommendations that are supported in the
comments and analysis of the Conservancy:
Summary of Recommendations:
High Biodiversity Sites (Pages 10-17)
1. All aspects of environmental review, permitting and mitigation for the NorthMet Project
and the Land Exchange should consider the high biodiversity value, landscape context
and irreplaceability of habitat that will be lost or impacted.

Land Exchange (Pages 18-23)
2. Given the fact that the proposed land exchange will result in a significant net loss of
biodiversity habitat, the U.S. Forest Service (“USFS”) should find that the Land
Exchange, as it is currently proposed, is not in the public interest as required by 36
C.F.R. § 254.3(b).
3. To avoid a significant net loss of biodiversity habitat, the Land Exchange should expand
the portfolio of non-federal tracts to be acquired to include lands with at least a MBS
rank of moderate within the St. Louis River Watershed. Focus should be on lands that
mimic the habitat lost in the exchange, including not only wetlands, but a wide variety of
lowland plant communities, forested bogs and swamp.
4. The final EIS should ensure that the lands with the highest MBS rankings remain part of
the Land Exchange. These include Tract 2 (Lake County north and Lake County south),
and Tract 3 (Wolf Lands 1-4).
5. The final EIS should eliminate Alternative B, the more limited Land Exchange, since it
has no ecological benefit.

3
Department of the Army, Corps of Engineers, 33 CFR Parts 325 and 332; Environmental Protection Agency, 40 CFR
Part 230, 2008
5


Wetlands and Mitigation (Pages 24-33)
6. The final EIS should resolve the uncertainties in the analysis of indirect impacts of
hydrologic alteration and provide a supported single estimate or range of acres and
wetland types affected. If the uncertainties cannot be resolved, worst case analysis
must be included and addressed.
7. The Record of Decision and permit conditions should include advance commitment to
mitigation for all indirect impacts, including identification of mitigation sites and
compensation ratios.
8. The final EIS should include a sequencing plan that demonstrates adherence to the
mitigation hierarchy of avoid, minimize and mitigate impacts to wetlands as required by
state and federal law.
9. A compensation ratio of 2:1 or higher (and no less than 2:1) should be used for
unavoidable impacts to bog, coniferous swamp, hardwood swamp and other wetlands of
the lowland conifer ecosystem.
10. Financial assurance, separate from that required for mine reclamation, should be
required to ensure the success of mitigation, to cover the costs of monitoring and
adaptive management and to ensure against indirect impacts to wetlands.
11. The final EIS should fully address monitoring design, adaptive management, and the
decision framework for identifying indirect impacts and associated mitigation.
12. Mitigation should focus on restoration of functional loss in the St. Louis River Watershed
and should include ecologically suitable wetland banking, on-site mitigation and an in
lieu fee program development.
13. The U.S. Army Corps of Engineers (“USACE”) should complete its feasibility
determination for peatland restoration within the St. Louis River Watershed and
incorporate this information into its determination of mitigation requirements for the
NorthMet project.

Water Pollution and Treatment (Pages 34-40)
14. The final EIS should identify for all phases of the project potential risk and release
scenarios that could occur during routine operation and probable failure scenarios at the
Mine Site, Plant Site, and Transportation Corridor including the tailings basins, stockpiles
and breakdown of the reverse osmosis systems. The final EIS should evaluate the effect
on downstream resources in terms of failure type, duration, and magnitude as was
accomplished in the USEPA’s Bristol Bay assessment.
15. If wetlands are to be used as a wastewater treatment method, the final EIS should
include an analysis of expected wastewater treatment performance during the winter, the
length of time a wetland treatment system can function before reaching capacity and
how the effectiveness of the system will be monitored. It should also discuss long term
maintenance of the system, such as removal and disposal of accumulated metals in the
wetland plants and sediments.
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16. The Adaptive Water Management Plan (“AWMP”) should provide a clear framework for
understanding how adaptive management will work. An adaptive management
framework is required that specifies the management assumptions, the monitoring
design, thresholds that will trigger mitigation actions, and the actions that will be taken if
those thresholds are met.
17. All permits should be conditioned on commitment to mitigating actions identified in the
AWMP and other adaptive management plans as documented in the final EIS and
Record of Decision.
18. Given its importance to the environmental risks of the NorthMet project, opportunity for
public comment on the AWMP should be provided prior to issuance of a Permit to Mine.

Water Flows and Levels (Pages 41-49)
19. More protective flow criteria (< 5% alteration) should be used for flows at the low and
high end of the frequency distribution to evaluate the potential for impact to aquatic
systems. Mitigating measures should be specified for periods when flow alteration
exceeds this criterion.
20. The final EIS should reevaluate assumptions about the basic hydrology of the project
site in light of current data, including baseflow estimates in affected streams.
Assessment of impacts and conclusions derived from flow and water quality modeling
results should be revisited if those assumptions are in error.
21. The final EIS should explicitly define and describe “adaptive engineering controls” as
well as address the capacity to accommodate the full spectrum of extreme storm events
at both the Plant Site and Mine Site, including event frequencies anticipated under future
climate change scenarios. The EIS should also describe the capacity of the wastewater
treatment plant (“WWTP”) to pattern permitted discharges on the natural flow regime.
22. The final EIS should include a sensitivity analysis of flow and water quality impacts to a
range of baseflow, climate, and leakage estimates. The results of this analysis should
be used to identify mitigating actions that would be implemented to avoid additional
impacts.
23. Given the potential for flow augmentation and its impact on erosion and sedimentation,
the EIS, Record of Decision and permit conditions should address appropriate
monitoring and adaptive management for thermal regimes, downstream sediment and
associated habitat impacts.
24. Assessment of potential hydrologic impacts of the NorthMet Project for the Partridge and
Embarrass Rivers should be evaluated based on up-to-date understanding of current
and future climate scenarios.



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Sulfates and Wild Rice (Pages 50-56)
25. NorthMet Project area waters that have restoration potential for wild rice should be
designated as “wild rice waters” and should be required to meet Minnesota’s sulfate
standard.
26. The “affected area” considered by the SDEIS for wild rice impacts should include the
entire St. Louis River watershed.
27. The current 10 mg/L sulfate standard for wild rice waters should remain in effect.
28. The waters affected by the NorthMet Project should not be permitted to seasonally
exceed the sulfate standard.
29. The NorthMet project discharges and other activities in the watershed should be
monitored and evaluated for flow regime alterations that could potentially impact
downstream wild rice waters. Potential corrective actions should be explicitly specified
in the water management plan.

Cumulative Effects Assessment (Pages 57-67)
30. The cumulative effects assessment should include other nearby non-ferrous mining
developments, as well as planned expansions of taconite mining and processing as
reasonably foreseeable future actions, as detailed in our comments.
31. The cumulative effects assessment should use the entire St. Louis River watershed as
the cumulative effects affected area for impacts to water resources, high biodiversity
sites, species, wild rice, and wetlands.
32. The cumulative effects assessment should include an analysis of how all projects have
cumulatively modified habitat availability and compare this with habitat needs of
dependent species using a population viability analysis approach
33. The cumulative effects analysis should incorporate climate change effects on sensitive
habitat, species and water resources.
34. The SDEIS should demonstrate how climate uncertainty will be mitigated in the project
design and operations, identifying the specific mitigating measures employed.
35. The state and federal government should conduct a “tier 1” regional environmental
assessment using a Programmatic Environmental Impact Statement (“PEIS”) or Generic
Environmental Impact Statement (“GEIS”) model before significant additional mining
development occurs.
36. The regional environmental assessment should focus on the St. Louis and Rainy River
watersheds and be structured similar to the USEPA’s Bristol Bay, Alaska assessment
and include the nine essential elements of that study.

Comparison of Alternatives (Pages 68-71)
37. The SDEIS should be supplemented to include at least one alternative from each of the
following categories: alternative sites; alternative technologies; modified designs or
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layouts; modified scale or magnitude; and alternatives incorporating reasonable
mitigation measures.
38. The underground mine alternative and the west pit backfill alternative should be
evaluated with more than a screening level analysis, and the accuracy of information
provided by the project proposer should be independently verified.
39. The Purpose and Need statement and analysis should fully encompass long-term and
watershed-wide environmental benefits and costs in addition to private economic
considerations.
Financial Assurance (Pages 72-81)
40. The final EIS should be supplemented to include a detailed description and dollar
estimate of costs of each component of reclamation to be secured by financial
assurance from PolyMet and an opportunity for public comment should be provided on
this essential supplementary analysis.
41. The final EIS should be supplemented to include an assessment of the risk and assign
cost factors associated with the failure of proposed abatement and reclamation systems
for the NorthMet project, as was done in the USEPA’s Bristol Bay assessment.
42. The final EIS should be supplemented to address the additional costs associated with
the unprecedented duration of reclamation, monitoring and treatment required by the
NorthMet project, such as facility obsolescence, and regulatory and technological
changes.
43. The final EIS should commit to a fully funded financial assurance mechanism, at least
90% of which is composed of a trust fund to be administered by a group of governmental
agencies, representing state, federal and/or local government.
44. The final EIS should agree to the release of financial assurance obligations only upon all
closure, reclamation and mitigation performance criteria being met.
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Figure 1 - NorthMet Project Area and Conservation Landscapes. Map created by The Nature Conservancy MN-ND-
SD Chapter, © March 2014 The Nature Conservancy. Data sources: TNC, MNDNR, MN Geological Survey, Natural
Resources Research Institute

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2. High Biodiversity Sites

All aspects of environmental review, permitting and mitigation for the NorthMet Project and the
Land Exchange should consider the high biodiversity value, landscape context and
irreplaceability of habitat that will be lost or impacted. Accordingly, by way of introduction and
preface to the Conservancy’s comments, we provide the following analysis of the biodiversity
aspects and setting of the NorthMet project.
A. The NorthMet project site is located in the headwaters of the St. Louis River,
specifically the Embarrass and Partridge Rivers adjacent to Sand Lake-Seven Beavers.
These watersheds have some of the highest condition and watershed integrity scores.
The St. Louis River watershed is identified as a Conservancy freshwater priority.
The Conservancy’s freshwater conservation targets in the St. Louis River include headwater to
large river systems including the St. Louis River headwaters in the Sand Lake-Seven Beavers
area, lake sturgeon, wild rice, several species of mussels, and the St. Louis River estuary itself,
as well as a long list of terrestrial and aquatic species of greatest conservation need (“SGCN”).
The NorthMet Plant site will have a 19.4 square mile footprint at the headwaters of the
Embarrass River sub-watershed (HUC 04010201030). The Mine site will have a 6.5 square
mile footprint in the headwaters of the 162 mi
2
Partridge River sub-watershed (11-digit HUC
04010201020). The Partridge River watershed is adjacent and tributary to the 295 mi
2
St. Louis
River headwaters sub-watershed (11-digit HUC 04010201015), identified as a Conservancy
freshwater priority. These watersheds have some of the highest condition and watershed
integrity scores in the St. Louis River watershed.
4
NorthMet Project impacts to these systems
and their associated biota are largely indirect, via impacts to flow, water quality, and habitat
associated with Plant and Mine site development, pit dewatering and flow augmentation, and
treated and untreated wastewater discharges. Conservancy comments and recommendations
with respect to NorthMet project impacts and implications for water quality, hydrology, wild rice
and wetlands are included in other sections of this document.
As noted, wild rice is a Conservancy freshwater conservation target, and both the Embarrass
River and Partridge River have stream reaches and lakes proposed for wild rice designation, as
well as historic evidence of wild rice in areas currently not being considered for designation.
The adjacent St. Louis Headwaters watershed in the Sand Lake-Seven Beavers area has
documented wild rice on the upper St Louis River above the Skibo Mill and below Seven
Beavers Lake.
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In 2009 the Minnesota Pollution Control Agency (“MPCA”) conducted intensive biological
monitoring of the St. Louis River. According to the St. Louis River assessment report “data in
this watershed shows the five stations not directly influenced by mine drainage produced strong
Index of Biological Integrity (“IBI”) scores above the upper confidence limits for their respective

4
MPCA 2013
5
Fedora 2005
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thresholds.”
6
There are no MPCA biological fish monitoring sites in the Mine Site area.
However there are three MPCA biological monitoring stations on the Partridge River tributaries
south of the Mine site with similar drainage areas, as well as multiple stations on the Embarrass
River starting with Spring Mine Creek. The latter sites already exhibit signs of biological
impairment based on fish and macroinvertebrate IBI scores.
7
Sub-watersheds of the Partridge
River scored relatively high on the MPCA fish and macroinvertebrate IBIs
8
and the Minnesota
Department of Natural Resources (“MNDNR”) Watershed Health Assessment Framework
(WHAF) for aquatic connectivity and stream species quality.
9


The SDEIS also conducted habitat assessment and aquatic biota surveys in the vicinity of the
NorthMet project area. Most of these sites scored moderate to well for habitat quality (SDEIS
Figure 4.2.6-1; Table 4.2.6-2). Wyman Creek, a tributary to the Partridge River that originates at
Spring Mine Lake between the Plant Site and the Mine site showed high conductivity readings
at low flows as well as fish IBI scores suggesting biological impairment. Wyman Creek is
classified as a cold water stream and MNDNR reports brook trout historically at this site. Mottled
sculpin, a cool-to-cold water species considered “intolerant” of habitat degradation were
collected in Wyman Creek. However, no trout were sampled in 2009 during the MPCA’s
biological monitoring visit. The MPCA assessment suggested that impairments in the
watershed were likely attributable to mining activities but recommended additional monitoring to
determine the source of biological impairment.
10

The SDEIS notes that there are no threatened or endangered fish or macroinvertebrate species
known to occur in the NorthMet Project area (SDEIS Section 4.2.6); however, “there are nine
RFSS [Regional Forester Sensitive Species], three SGCN species, and three state-listed
special concern species known to occur in the general vicinity of the NorthMet Project site. Of
these, suitable habitat likely exists for five special status species: headwaters chilostigman
caddisfly, Quebec emerald, ebony boghaunter, creek heelsplitter, and northern brook lamprey”
(SDEIS Section 4.2.6.) Two species of mussels—the creek heelsplitter and black sandshell—
are known to inhabit reaches of the St. Louis River below Sand Lake-Seven Beavers project
area. Both of these species are state species of Special Concern
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as well as RFSS. Mussels
were also sampled in a sub-watershed of the Embarrass. “Habitat for several freshwater
mussel species likely exists in the vicinity of the NorthMet Project area; however, only two
species of mussels were observed in two years of baseline freshwater mussel surveys.” (SDEIS
Table 4.2.6-6)

In sum, the biological monitoring of the NorthMet project site indicates the waters are capable of
supporting many important fish and macrobiotic species.


6
MPCA 2013
7
Ibid.
8
Ibid.
9
http://arcgis.dnr.state.mn.us/ewr/whaf/Explore/# [Accessed 2/27/2014]
10
Minnesota Pollution Control Agency, 2013. St. Louis River Watershed Monitoring and Assessment Report,
March, 2013, St. Paul, MN
11
Minnesota Rules, parts 6134.0100 to 6134.0400
12


B. The NorthMet project would directly affect 2400+ acres designated as having high
biodiversity significance, including native plant communities considered “imperiled” or
“vulnerable” and nine SGCN Need identified in the Minnesota’s State Wildlife Action
Plan.
From the SDIES, the total direct area footprint of the NorthMet Project is approximately 16,700
acres or 25.9 square miles consisting of two areas: “the NorthMet Mine Site totaling
approximately 4,300 acres or 6.5 square miles of leased mineral rights, and the Erie Plant site
totaling approximately 12,400 acres or 19.4 square miles of freehold land.”
As noted in the SDEIS, “the NorthMet Project Proposed Action would directly affect up to
1,718.6 acres of MBS Sites of High Biodiversity Significance”--all at the Mine site, as well as
“698.2 acres of “imperiled” or “vulnerable” native plant communities, 92.6 acres of “apparently
secure” native plant communities, and 178.9 acres of “widespread and secure” native plant
communities.” (SDEIS Section 5.2.4). The SDEIS also acknowledges direct effects on nine
species of SGCN and indirect effects on two.
The proposed NorthMet mine is located just north of important Conservancy project sites
including Sand Lake-Seven Beavers and the headwater drainages of the St. Louis River (Figure
2). The Sand Lake-Seven Beavers Complex in the St. Louis River headwaters is a
Conservancy Superior Mixed Forest (“SMF”) priority, a focus of our forest protection and
restoration work in northeast Minnesota, as well as a Great Lakes priority. As the headwaters of
the St. Louis River, the site is also part of the St. Louis River Great Lakes Area of Concern
(USEPA).
12
Since 2002, landowners in the project area have been actively engaged in efforts to
cooperatively manage the resources to meet shared goals, including sustainable forestry and
maintenance and restoration of ecosystems.
13
The resulting management plans have been
viewed as a pilot approach to landscape-scale collaborative forest management by the
Minnesota Forest Resources Council (“MFRC”).

The SNF lands that comprise the proposed NorthMet Mine Site are designated as an area of
high biodiversity significance by the MBS. The designation is based on the variety of lowland
plant communities including forested bogs and swamp forests dominated by black spruce, white
cedar, and tamarack and more open bog communities with some sparse cover of the previously
mentioned tree species. Wetlands make up the majority of acres, including some areas of open
shrub and graminoid wetlands that occur adjacent to the Partridge River. However, there are
significant areas of upland forests including jack pine-black spruce woodlands and mesic fire-
dependent forest, representing some of the most important upland forest types identified as
conservation targets by the Conservancy and partners in northeast Minnesota.


12
www.epa.gov/glnpo/aoc/ [Accessed 2/27/2014]
13
Sand Lake-Seven Beavers Forest Collaborative. See Fedora, 2005.
13

C. Wetlands impacts include 912.5 acres of wetlands directly at the area, mostly at the
Mine site, and potential impacts on adjacent wetlands via the groundwater drawdowns
associated with dewatering the mine pits and capture of runoff. Wetland types that will
be eliminated or impacted include coniferous bog, shrub swamp, shallow marsh, deep
marsh, sedge/wet meadow, hardwood swamp, conifer swamp forest, and open bog.
Although the SDEIS describes plans for reclamation at the site post-closure, imperiled,
vulnerable and other native plant communities of high biodiversity significance are very difficult
to restore, and thus it is highly unlikely that the impacts could be reversed via reclamation. A
wealth of research and experience supports the assertion that many of the most imperiled and
“vulnerable” native plant communities are very difficult to restore. For example, communities
such as peatlands take a long time to establish, and would not be compatible with some of the
stated goals for reclamation in the SDEIS including “rapidly establishing a self-sustaining plant
community …and minimizing the need for maintenance.” The Sand Lake-Seven Beavers
Ecosystem Analysis (a joint research project of the USFS and the Conservancy) describes the
sensitivity of sphagnum/black spruce forest to disturbance, describing how areas where this
community, affected by winter logging roads, has permanently converted to sedge-dominated
wetland. Even winter roads maintained as snowmobile trails or used every twenty years for
timber harvest will not recover to a sphagnum moss/black spruce forest.
14

Indirect effects on adjacent wetlands from dewatering are also significant. The SDEIS
anticipates impacts to adjacent areas and potential indirect impacts on wetlands and water
tables from groundwater table drawdown up to 3,200 ft. from the mine pit (SDEIS Section
5.2.2.3.2). These impacts have the potential to negatively impact adjacent high quality and
vulnerable wetland types as well as wetland functions. This issue is further discussed in our
comments on wetlands and mitigation herein. We also note that the question of the extent and
severity of impacts to adjacent wetlands is included in the SDEIS 8.3 and Appendix C.

A portion of the upper Partridge River and tributaries are also located within the potential impact
zone of groundwater drawdown. The independent analysis conducted by the Great Lakes
Indian Fish and Wildlife Commission (“GLIFWC”) estimated drawdowns of up to 3-5 feet in the
river zone. Drawdowns of this magnitude have the potential to reduce baseflow as well as
impact downstream riparian zone communities, instream habitat and water quality, as discussed
herein
C. Several rare and high quality communities that will be eliminated by the Mine Site are
ranked as having high vulnerability to climate change, meaning that they will be under
even greater pressure throughout their range. These include acid peatlands and forested
peatlands. Additional communities ranked as vulnerable to climate change that will be
negatively impacted by the project include wet forest systems, riparian areas, and
headwater stream systems.

14
Verry, 2004; Fedora 2005.
14

The Northern Forests Ecosystem Vulnerability Assessment and Synthesis produced for the
region assesses the vulnerability of communities to climate change predictions for the region
produced by a range of climate models (Handler et al, in press). Several of the rare and high
quality communities that will be eliminated by the NorthMet mine site were ranked as “high
vulnerability” to climate change. These include acid peatlands, forested peatlands, and wet
forest types. The table below shows the forest systems and community types potentially
impacted by the NorthMet project, and their estimated vulnerability to climate change based on
the Minnesota Forest Ecosystem Vulnerability Assessment and Synthesis (Handler et al. in
press), and the page number of the vulnerability assessment where they are discussed.
System Type Page Native Plant Community Vulnerability
Acid Peatland APN80 176 Black Spruce Bog High
Acid Peatland APN80 176 Black Spruce Bog: Treed Subtype High
Acid Peatland APN90 176 Graminoid Bog: Typic Subtype High
Acid Peatland APN91 176 Low Shrub Poor Fen High
Acid Peatland APN81 176 Northern Poor Conifer Swamp High
Acid Peatland APN81 176 Poor Black Spruce Swamp High
Acid Peatland APN81 176 Poor Tamarack - Black Spruce Swamp High
Fire dependent Fdn43 166 Aspen - Birch Forest: Balsam Fir Subtype Medium
Fire dependent Fdn32 166 Black Spruce - Jack Pine Woodland Medium
Fire dependent Fdn43 166 Northern Mesic Mixed Forest Medium
Fire dependent Fdn43 166 White Pine - Red Pine Forest Medium
Forested Peatland FPN73 174 Alder - (Maple - Loosestrife) Swamp High
Forested Peatland FPN73 174 Alder Swamp / Forested Peatland Complex High
Forested Peatland FPN62 174 Rich Black Spruce Swamp (Basin) High
Forested Peatland FPN81 174 Rich Tamarack - (Alder) Swamp High
Forested Peatland FPN63 174 White Cedar Swamp (Northeastern) High
Wet Forest WF64 172 Black Ash - Conifer Swamp (Northeastern) High
Wet Meadow WMN82 NA Northern Wet Meadow / Carr Unknown
Wet Meadow WMN82 NA Willow - Dogwood Shrub Swamp Unknown

Acid peatlands are highly sensitive to precipitation changes as they have no connection to
ground water. Low water levels can lead to drought stress and tree mortality, loss of sphagnum
biomass and decomposition of peat substrate. Higher water level can lead to a loss of tree
cover and more open communities. While forested peatlands typically have some connection
with groundwater, they are also very sensitive to water level changes. Low water levels can
lead to a shift in composition to upland species, and drying and decomposition of the peat
substrate. Many of the tree species characteristic of acid and forested peatlands are projected
to decline under climate change scenarios. In addition, the peat soils in both of these systems
contain a very high density of carbon and thus are very important for carbon storage.
The wet forest system is characterized by saturated soil conditions in the spring and dry
conditions during the summer. Climate change may alter the seasonal precipitation patterns
15

and lead to changes in growth and regeneration. Climate may also interact with the Emerald
Ash Borer leading to the loss a black ash, a dominant species in many of Wet Forest community
types.
Stream and river systems are also identified as potentially some of the most vulnerable systems
to climate change in the upper Midwest and Great Lakes due to the combination of increased
storm runoff, more frequent drought/reduced baseflows, land cover change, nutrient loading,
altered thermal regimes, and invasive species. Based on the IBI assessment of the Partridge
and Embarrass Rivers, several headwater streams have been classified as cold water or cool
water
15
. Both of these thermal regime types are also considered highly vulnerable in northeast
Minnesota under anticipated climate change due to the sensitivity of many cold water species to
increases in water temperature.
16


Rather than concede the loss of this ecosystem to the effects of climate change, we should
redouble efforts to protect this important habitat. As discussed in the section on adaptive
management and cumulative effects the effects of climate change must be factored into the
analysis of appropriate reclamation and mitigation strategies.

Recommendation: All aspects of environmental review, permitting and mitigation for the
NorthMet Project and the Land Exchange should consider the high biodiversity value, landscape
context and irreplaceability of habitat that will be lost or impacted.

References
Fedora, M. 2005. Ecosystem Analysis of the Sand Lake-Seven Beavers Project Area, in the Upper St.
Louis River Watershed, Minnesota. USDA Forest Service and The Nature Conservancy.
Handler, S, Duveneck, M. J., Iverson, L., Peters, E., Scheller, R. M., Wythers, K. R., Brandt, L., Butler, P.,
Janowiak, M., Swanston, C., Barrett, K., Kolka, R., McQuiston, C., Palik, B., Reich, P. B., Turner, C.,
White, M., Adams, Ch., D'Amato, Anthony, Hagell, Suzanne, Johnson, Rosemary, Johnson, Patricia,
Larson, Mike, Matthews, S., Montgomery, R., Olson, S., Peters, M., Prasad, A., Rajala, J., Shannon,
P. D., Daley, J., Davenport, M., Emery, M.R., Fehringer, D., Hoving, C. L., Johnson, G., Johnson, L.,
Neitzel, D., Rissman, A., Rittenhouse, C., Ziel, R. In Press. Minnesota forest ecosystem vulnerability
assessment and synthesis: a report from the Northwoods Climate Change Response Framework.
Gen. Tech. Rep. NRS-XX. Newtown Square, PA; U.S. Department of Agriculture, Forest Service,
Northern Research Station.
Minnesota Pollution Control Agency. 2013. St. Louis River Watershed Monitoring and Assessment
Report. Minnesota Pollution Control Agency. Saint Paul, MN. Document number: wq-ws3-
04010201b.
MPCA (2014) Development of a fish-based Index of Biological Integrity for assessment of Minnesota’s
rivers and streams. Minnesota Pollution Control Agency, Environmental Analysis and Outcomes
Division, St. Paul, MN.

15
MPCA 2014.
16
Easterling and Karl 2001, Kling et al. 2003, Lyons et al. 2010, Westenbroek et al. 2010, Wiley et al. 2010, Johnson
et al. 2014
16

The Nature Conservancy. 2000. Toward a new conservation vision for the Great Lakes region: a second
iteration. The Nature Conservancy, Great Lakes Program, Chicago, IL.
The Nature Conservancy and Nature Conservancy Canada. 2002. The Superior Mixed Forest Ecoregion:
A Conservation Plan. The Nature Conservancy of Wisconsin, Madison, WI, 127 p.
Verry, E.S. 2004. Land Fragmentation and Impacts to Streams and Fish in the Central and Upper
Midwest. Chapter 5. In George G. Ice and John D. Stednick, eds. A Century of Forest and Wildland
Watershed Lessons. Society of American Foresters. Bethesda, MD. pgs. 129-154.
Verry, E.S. and R.K. Kolka. Importance of wetlands to streamflow generation. Pgs. 126-132. In: Renard,
Kenneth G.;et al., eds. 1st Interagency Conference on Research in the Watersheds; 2003 October
27-30; Benson, AZ. [City, State]: US Department of Agriculture, Agricultural Research Service: 126-
132
Verry, E.S., F.R. Lewis, and K.N. Brooks. 1983. Aspen Clearcutting Increases Snowmelt and Storm Flow
Peaks in North Central Minnesota. Water Resources Bulletin, Vol. 19, No. 1, pp 59-67.
Westenbroek, S., Stewart, J., Buchwald, C., Mitro, M., Lyons, J., and Greb, S. 2010. A Model for
Evaluating Stream Temperature Response to Climate Change Scenarios in Wisconsin. Watershed
Management 2010: pp. 1-12.
Wiley, M.J., D. W. Hyndman, B. C. Pijanowski , A. D. Kendall, C. Riseng, E. S. Rutherford, S. T. Cheng,
M. L. Carlson, J. A. Tyler, R. J. Stevenson, P. J. Steen, P. L. Richards, P. W. Seelbach, J. M.
Koches, R. R. Rediske. 2010. A multi-modeling approach to evaluating climate and land use change
impacts in a Great Lakes River Basin. Hydrobiologia 657:243–262

17



Figure 2- NorthMet Project, Conservation Landscapes and Areas of High Biodiversity Significance. Map
created by The Nature Conservancy MN-ND-SD Chapter, © March 2014, The Nature Conservancy. Data sources: TNC,
MNDNR, Land Management Information Center

18





3. Land Exchange

A. Federal lands proposed for the NorthMet mine site have been designated as an area of
high biodiversity significance by the MBS. Our analysis shows that the proposed land
exchange will result in a significant net loss of biodiversity habitat.

The SDEIS proposed action includes the exchange of a single 6,650.2-acre parcel of federal
land for multiple tracts within the proclamation boundary of the SNF.
17
A priority habitat for the
Conservancy is the 6,344 acre, Sand Lake-Seven Beavers preserve, located within the Sand
Lake-Seven Beavers landscape,
18
which harbors one of the state's largest areas of lowland
conifers. The landscape also includes rare plants such as Michaux's sedge, and sensitive
aquatic communities such as the Sand Lake peatlands. This landscape was identified as one of
a suite of priority conservation areas during the SMF ecoregional planning effort that concluded
in 2002.
19
Ecoregional planning involves identifying a suite of conservation areas that, taken
together, would allow for the conservation of all the biodiversity in an ecoregion, which is an
area with similar geology, vegetation, and climate. The proposed mine and plant site occur
within this significant landscape.

The Conservancy has a history of working closely with the USFS in the SNF on collaborative
forest restoration and planning efforts. Because of our experience and history managing this
landscape to enhance its conservation values, the Conservancy is particularly qualified to
comment on the proposed land exchange associated with the NorthMet proposal.

B. Ecological context of the proposed NorthMet project and proposed land exchange

Both the federal and exchange lands occur within the SMF ecoregion. The SMF is located near
Lake Superior and covers portions of Minnesota, Wisconsin, and Michigan, and the Canadian
Provinces of Ontario and Manitoba. The dominant ecosystems here are mixed boreal forest,
pine-hardwood forest, patterned peatlands, northern hardwood forest, and pine barrens. Within
the Minnesota portion of this ecoregion the Conservancy has several priorities for conservation:

 Wet and lowland system level conservation targets include conifer bogs and swamps, fens,
shrub swamps, aquatic emergent, rich conifer swamps and floodplain forest.
 Upland targets include jack pine-black spruce forest, mesic pine, spruce fir, mixed birch-
aspen-spruce-fir, and northern hardwood-conifer forests.
 Aquatic targets include riverine and lake systems.
Secondary conservation targets include wide ranging species such as the gray wolf, moose,
pine marten, Canada lynx, and forest interior birds. This ecoregion encompasses the north-

17
SDEIS, Section 3.3.1.
18
“Landscape” refers to a heterogeneous land area composed of a cluster of interacting ecosystems that are
repeated in similar form throughout.
www.support.natureconservancy.ca/pdf/blueprint/superior_mixed_forest.pdf
19
The Nature Conservancy, et al., The Superior Mixed Forest Ecoregion: A Conservation Plan (Nov. 2002),
www.support.natureconservancy.ca/pdf/blueprint/superior_mixed_forest.pdf (accessed 2/28/2014).
19

temperate-southern boreal forest transition zone and is projected to have significant impacts in
a changing climate. In addition to climate change, the primary threats to conservation and
ecological integrity are incompatible forest management, deer herbivory, invasive species, and
habitat loss due to activities such as mining and second home development.

The USFS goals for the Superior National Forest include restoring long-lived conifer species
and maintaining and increasing older forest growth stages.
20
These goals are based on the
recommended desired outcomes, goals and strategies developed in the MFRC’s 2003
Northeast Landscape Plan; a plan developed by approximately 60 people representing
agencies, conservation non-profits, industry, and private landowners.
21
The Conservancy
shares these goals.

C. Regulatory requirements for federal land exchanges

The USFS may complete a land exchange only after a determination is made that the public
interest will be served.
22
Factors to consider include the opportunity to achieve:
23


 better management of Federal lands and resources,
 meet the needs of State and local residents and their economies;
 secure important objectives, including but not limited to:
 protection of fish and wildlife habitats
 cultural resources
 watersheds
 wilderness and aesthetic values;
 enhancement of recreation opportunities and public access;
 consolidation of lands and/or interests in lands, such as mineral and timber interests;
 consolidation of split estates;
 expansion of communities;
 accommodation of existing or planned land use authorizations;
 promotion of multiple-use values;
 implementation of applicable Forest Land and Resource Management Plans;
 fulfillment of public needs

In addition, to determine that an exchange well serves the public interest, the authorized officer
must specifically find that the resource values served by the non-Federal lands to be acquired
equal or exceed the resource values served by the Federal lands to be conveyed.
24

Accordingly, the Conservancy has evaluated the comparative resource values of the federal and
exchange lands.


20
See USFS, Land and Resource Management Plan, Superior National Forest (July 2004), pp. 2-22 through 2-27.
21
Minnesota Forest Resources Council, Forest Resource Management Plan; Northeast Landscape (March 25,
2013), pp. 5-1 through 5-12 (available at:
http://mn.gov/frc/documents/council/landscape/NE%20Landscape/MFRC_Northeast_LA%20Plan_2003-03-
25_1.25.pdf) (accessed 2/28/2014).
22
36 C.F.R. § 254.3(b) (2013).
23
36 C.F.R. § 254.3 (b) (1) (2013).
24
36 C.F.R. § 254.3(b)(2)(i) (2013).
20

D. Analysis

Federal lands: The SDEIS acknowledges that the federal lands proposed for the NorthMet mine
site have been designated as an area of high biodiversity significance by the MBS.
25
"High"
sites contain very good quality occurrences of the rarest species, high-quality examples of rare
native plant communities, and/or important functional landscapes.
26


The biological survey designation of high significance shows the federal lands to include a
variety of lowland plant communities including forested bogs and swamp forests dominated by
black spruce, white cedar, and tamarack and more open bog communities with some sparse
cover of these tree species. Areas of open wetlands also occur along the Partridge River.
Although wetlands make up the majority of acres, the area also includes biologically significant
– due to the unusual diversity of species present -- upland forests, including jack pine, black
spruce, white pine, red pine, quaking aspen, white spruce, and balsam fir. There is also a high
concentration of rare plant occurrences within this area.

In addition, it is important to note that the federal lands were acquired under the Weeks Act of
1911 (36 Stat. 961, as amended 16 U.S.C. §§ 515, 521) which permitted the federal
government to purchase private land in order to protect the headwaters of rivers and
watersheds in the eastern United States. As noted above, the mine site is located within the
Sand Lake-Seven Beavers landscape, which encompasses the headwaters of the St. Louis
River. Conversion of the federal lands to mining is therefore contrary to the original intent of the
federal enabling legislation to protect ecologically significant headwaters.

The conversion of this site will result in a significant loss of high quality terrestrial and wetland
habitat.

Exchange Lands: The Hay Lake parcels (4,900 acres) are not within the Sand Lake-Seven
Beavers landscape, but they do contain some of the same lowland forests, bogs, and
shrub/herbaceous wetlands as in the landscape (Table 1). The Pike River runs through these
parcels and so this area includes riparian wetlands. However, the Hay Lake block contains a
higher proportion of shrub/herb and emergent wetlands and less lowland forest compared to the
SNF lands. White cedar swamp forest, an important component of the federal lands, does not
occur within the Hay Lake block. These sites also differ in upland composition, as the Hay Lake
block has a less diverse mix of plant communities with more young and recently cut sites.
There is some intact and recently cut upland forest (mesic fire dependent, aspen-birch, aspen-
birch-spruce-fir) and unlike the current federal lands, jack pine-black spruce woodland does not
occur on this site.

While this is a relatively large and contiguous block of forests and wetlands, the ecological value
is significantly less than the current federal lands on the proposed NorthMet mine site. In
comparison, the SNF lands on the NorthMet site have a greater diversity of upland and lowland
plant communities, are less disturbed, and have a higher concentration of rare plant species.


25
SDEIS, Table 5.3.4-1.
26
See, Minnesota DNR, Biodiversity Guidelines (available at:
http://www.dnr.state.mn.us/eco/MBS/biodiversity_guidelines.html (accessed 2/24/2014).


21

Of the much smaller tracts:

 One set of parcels (Wolf Lands 2) occurs within a site of moderate biodiversity significance
and includes large areas of lowland and upland forest communities similar to those on the
federal lands (Table 1). These parcels are also directly adjacent to the Conservancy’s Sand
Lake-Seven Beavers Preserve;

 The Lake North and Wolf Lands 1 are presumably both of low biodiversity rank (since they
were not identified as high biodiversity significance sites by the MBS). However, these
tracts occur adjacent to areas where the Conservancy does collaborative forest
management and these blocks could enhance that work.

 The Lake South block occurs in the Great Lakes ecoregion within the Marble Landscape
and is designated as high biodiversity significance on the MBS. This area includes patches
of lowland white cedar forest and some northern hardwoods.

 The McFarland Lake site occurs within the Pigeon River landscape and contains some
mixed pine as wells as mixed spruce-fir hardwood forests along with some lakeshore
habitat. Its biodiversity significance has not been designated by the MBS.

 The Hunting Club tract is located in the western end of the Border Lakes landscape which is
comprised of fire dependent forests of spruce fir-birch-aspen along with some white and red
pine. There are also some open riparian wetlands, emergent wetlands, and shallow open
water. Its biodiversity significance has not been designated by the MBS.

In general, addition of all of the land exchange tracts to USFS ownership would contribute to
somewhat less fragmented ownership pattern for the USFS and likely lead to improved
management on these parcels. While some of these tracts are small, they would still contribute
to consolidating ownership and management.

However, overall neither the proposed land exchange, nor Alternative B represents equal
ecological or resource values. Again, to determine that an exchange well serves the public
interest, the authorized officer must specifically find that the resource values served by the non-
Federal lands to be acquired equal or exceed the resource values served by the Federal lands
to be conveyed.
27
The proposed exchange appears to fail this test.

The SDEIS states that 6,025 ac of high biodiversity significance land would be lost through the
proposed land exchange while Alternative B would lose 4,573 acres.
28
The land exchange
would result in only 120 acres with high biodiversity significance and only a modest increase in
tracts with Moderate Biodiversity Significance (768 acres) in public ownership.
29
Thus, there
would be a net loss of 5,908 acres of high biodiversity lands, which is not nearly offset by a
modest net increase of 768 acres of lower quality, moderate biodiversity lands.

Although there would be a net increase in wetland types with both alternatives, there would be a
loss of 1,400 acres of floodplain with the proposed land exchange and 1,037 floodplain acres

27
36 C.F.R. § 254.3(b)(2)(i).
28
SDEIS, Table 5.3.4-1.
29
Id. The Conservancy notes that as MBS surveys are completed, there could be a modest change in these
numbers indicating lower loss of High Biodiversity Significance acreage.
22

with Alternative B.
30
Overall, for key wetland types, the proposed land exchange would net
significant increases in coniferous swamp (1955) and shrub swamp (541 ac) but also would
have decreases in coniferous bog (1,961 acres) and open bog (202 acres). Alternative B shows
similar differences that are proportional to the reduced land area.
31


For upland forests, analysis of Management Indicator Habitats (“MIH”)
32
shows that the
proposed land exchange would result in an overall increase in upland forest (1,365 acres), but
with a significant decrease in upland conifers (1,173 acres). This would also result in an
increase of young and immature forest (2,507 acres) and a large decrease in mature forest
(2,030 acres).
33
Restoring long-lived conifer species and maintaining and increasing older forest
growth stages are important objectives of the SNF 2004 Forest Plan and the MFRC
Management Plan.
34


Endangered, Threatened and Special Concern Species (“ETSC”) populations would decline by
11 occurrences under both the proposed land exchange and Alternative B options. The
proposed land exchange option would add 2 species leading to a net loss of 9.
35


Alternative B would involve a smaller land exchange and result in less total land conversion. In
general, the negative impacts of Alternative B are similar to the proposed land exchange but
involve less land area. However, given the footprint of the mine site, development as proposed
in the alternative would in all likelihood seriously compromise the ecological integrity of the
lands remaining in federal ownership around the NorthMet site.

While there are many factors, positive and negative, that would affect ecological integrity in
these land exchange options, the large losses of High Biodiversity Significance land, ETSC
populations, floodplain, mature forest, and upland conifer forest indicate that these land
exchanges as proposed do not meet the requirement for exchange of equal or greater resource
value. Admittedly, there are many other factors, economic, cultural and management needs
that may be considered. However, from the Conservancy’s perspective of protecting our most
ecologically-significant natural resources, and the statutory standard of at least equal resource
value, the proposed exchange does not sufficiently compensate the public for the lost
biodiversity significance of the federal lands.



30
SDEIS, Table 5.3.3-1.
31
SDEIS, Table 5.3.3-1.
32
Management Indicator Habitats are “… communities, or special habitats selected for their emphasis in planning,
and which are monitored during forest plan implementation in order to assess the effects of management
activities on their populations and the populations of other species with similar habitat needs which they may
represent” (Forest Service Manual 2620.5, Washington Office amendment 2600-91-5).
33
SDEIS, Table 5.3.4-1.
34
See USFS, Land and Resource Management Plan, Superior National Forest (July 2004), pp. 2-22 through 2-27;
Minnesota Forest Resources Council, Forest Resource Management Plan; Northeast Landscape (March 25, 2013),
pp. 5-1 through 5-12 (available at:
http://mn.gov/frc/documents/council/landscape/NE%20Landscape/MFRC_Northeast_LA%20Plan_2003-03-
25_1.25.pdf) (accessed 2/28/2014). The land exchange as proposed is clearly contrary to these objectives.
35
SDEIS, Table 5.3.4-6.
23

TNC Table 1. Proposed Land Exchange non-federal tracts indicating acres, Conservancy
priority landscape, and MBS biodiversity rank.
Name Acres
Priority
Landscape
MBS
Biodiversity
Rank
Tract 1 Hay Lake 4651.5 None Unknown
Tract 2
Lake County
North 199.5 SL7B Low

Lake County
south 120 Marble High
Tract 3 Wolf Lands 1 120 SL7B Low*
Wolf Lands 2 760 SL7B Moderate
Wolf Lands 3 279.4 SL7B Low*
Wolf Lands 4 400 SL7B Low*
Tract 4 Hunting Club 160
Border
Lakes Unknown
Tract 5 McFarland Lake 32.1
Border
Lakes Unknown
* Inferred because these sites were within original MBS survey area

Recommendation: Given the fact that the proposed land exchange will result in a significant
net loss of biodiversity habitat, the USFS should find that the Land Exchange, as it is currently
proposed, is not in the public interest as required by 36 C.F.R. § 254.3(b).
Recommendation: To avoid a significant net loss of biodiversity habitat, the Land Exchange
should expand the portfolio of non-federal tracts to be acquired to include lands with at least a
MBS rank of moderate within the St. Louis River Watershed. Focus should be on lands that
mimic the habitat lost in the exchange, including not only wetlands, but a wide variety of lowland
plant communities, forested bogs and swamp.
Recommendation: The final EIS should ensure that the lands with the highest MBS rankings
remain part of the Land Exchange. These include Tract 2 (Lake County north and Lake County
south), and Tract 3 (Wolf Lands 1-4).
Recommendation: The final EIS should eliminate Alternative B, the more limited Land
Exchange, since it has no ecological benefit.

24

4. Wetlands and Mitigation

A. Direct impacts to wetlands will be significant, and indirect impacts could potentially
be even more extensive. Proposed mitigation for direct impacts is largely out-of-basin.
Advance commitment to mitigation is needed for all indirect impacts.

The Conservancy understands that 912.5 acres of coniferous bog, coniferous swamp, open
bog, shrub swamp, shallow and deep marsh, sedge and wet meadow and hardwood swamp will
be directly impacted and permanently lost as a result of filling, excavation and construction of
the containment system, largely within the Mine Site. We further understand that 68% of
directly impacted wetlands are coniferous or open bog, coniferous swamp and hardwood
swamp habitats acknowledged by the USACE
36
and the State of Minnesota
37
as “unique,”
difficult to replace and providing important physical, chemical and biological functions to
watersheds. These same wetlands are also the focus of our comments on High Biodiversity
Sites and the Land Exchange.
We note that Shrub swamps
38
represent 12% of the impacted wetland acres and are recognized
as distinct wetland types and offer some important functions for wildlife and water quality
39
.
However, it should be recognized that shrub swamps often represent a degraded successional
form of more herbaceous wetlands such as marsh and fen caused by artificial drainage or fire
suppression. As such they may not always be appropriate targets for mitigation or restoration.
The Conservancy thus recommends careful evaluation of the setting and prior history of all
shrub wetlands in the impacted areas, and where appropriate using the original historic wetland
type as the target for compensatory replacement.
We understand that the SDEIS proposes up to 1825 acres
40
of wetland mitigation for these
direct impacts through off-site wetland restoration and preservation at three locations
41
, two of
which are located outside the St. Louis River watershed near Hinckley and Aitkin. The majority
of these replacement wetlands are identified as “in-kind” mitigation, including large amounts of
bog and coniferous swamp wetlands that are acknowledged in the SDEIS as difficult to restore.
For the Zim site, this is implicitly acknowledged through the identification of easier-to-restore
wetland types as “contingency habitat,” and it is noted that “if target communities are not
achieved, credits would need to be re-calculated.” (SDEIS 5.2.3.3.2).

36
U.S. Army Corps of Engineers, St. Paul District, March 2013. Special Public Notice, Guidance Regarding Use of
Wetland Preservation for Mitigation Banking in Minnesota
37
Minnesota Department of Natural Resources, www.dnr.state.mn.us/snas/confierous_peatlands.html
38
The term “shrub swamp” is often used interchangeably with “shrub carrs,” and “alder thickets” in the SDEIS
39
Board of Water and Soil Resources, 2004. Comprehensive General Guidance for Minnesota Routine Assessment
Method (MnRAM), Evaluating Wetland Function, Version 3.3
40
This acreage assumes a 2:1 compensation ratio would be applied by the permitting agencies
41
Additionally, on site mitigation of 102 acres of wetlands is proposed for the Mine Site during reclamation, but
these acres are intended as a contingency and not included in the preliminary credit calculations.
25

The Conservancy also understands that potential exists for “indirect” impacts to several
thousand
42
additional acres of wetlands caused by changes in wetland hydrology, water quality
or fragmentation as a result of mine construction, operations or spills. Of interest here are
hydrologic impacts to wetlands from mine dewatering and resulting groundwater drawdown.
The SDEIS (SDEIS 5.2.3.2.2) describes two different analytical methods used to determine
extent and likely severity of these impacts and provides a range of from 165 to 1,398
43
acres as
moderate to high likelihood of impacts. This is a large range of estimates, and which estimate is
ultimately used to guide decisions will have profound implications for mitigation and monitoring.
Additionally, the Cooperating Agencies (SDEIS 8.3, MDO 8) provide an alternative analytical
method for estimating these indirect impacts from groundwater drawdown and determine that as
many as 5,720 acres would be vulnerable to “severe” impacts. These differences are indicative
of large uncertainties in the effects of hydrologic alteration that should be reconciled in the EIS
and an appropriate single estimate or range provided. We support the Cooperating Agencies’
method as technically valid, and no less reasonable than the two approaches documented in
the SDEIS. Given the prevalence of indirect impacts from groundwater drawdown that have
been documented in a variety of settings across the United States, including in the vicinity of
mines and well fields
44
and the complexity of hydrology in the affected area, the Conservancy
suggests that the precautionary principle should prevail in determining estimates of acres of
wetlands affected and an appropriately large acreage estimate used. If the uncertainty persists,
the SDEIS must consider the worst case analysis, and if another basis is used for decision
purposes, must justify the basis on which a lesser impact is predicted.
The Conservancy appreciates the commitment to provide compensatory mitigation for 27 acres
of wetlands indirectly affected by fragmentation as a result of mine construction. However,
indirect effects on hundreds to thousands of acres from hydrologic alterations including
groundwater drawdown are proposed to be handled differently. Rather than evaluating
opportunities to avoid or minimize these impacts, the project proposes to monitor wetlands most
likely to be impacted and take corrective action, including additional mitigation and/or
“hydrologic controls” only if impacts are documented through monitoring. However, indirect
wetland impacts are notoriously difficult to document through conventional water level and
vegetative monitoring, especially during the early years of operation, as changes may be subtle
at first and many wetlands have built-in natural resilience to short-term hydrologic changes.
Experience has shown that at such time that impacts become obvious from accumulated

42
The SDEIS provides a range of from 6,500-7,350 acres of wetlands potentially affected by indirect impacts from
all causes, depending on which method is used to estimate wetlands affected by groundwater drawdown.
43
Latter estimate includes 530.7 acres of coniferous and hardwood swamp and sedge meadow denoted as
Moderately Likely to experience indirect impacts.
44
e.g., Golder & Associates, 2012. Report on Cumulative Impacts Assessment for Groundwater Takings in the
Carden Plain Area, Report 09-1112-6065 for Ontario Stone, Sand & Gravel Association, Missasauga, Ontario;
University of Wisconsin Water Resources Institute, Groundwater Drawdown, undated fact sheet,
aqua.wisc.edu/publications/pdfs/GroundwaterDrawdown.pdf; Mortellaro, S., S. Krupa, L. Fink & J. VanArman,
1996, Literature Review on the Effects of Groundwater Drawdown on Isolated Wetlands, Technical Publication 96-
01, South Florida Water Management District, West Palm Beach, Florida; U.S. Environmental Protection Agency,
1996, An Assessment of the Ecological Impacts of Groundwater Overdraft on Wetlands and Riparian Areas in the
United States, Office of Water report 813-5-96-001.
26

monitoring data, significant wetland function has already been lost. There is substantial
evidence from across the country of real and long-term impacts to wetlands caused by
groundwater drawdown.
45
These impacts from altered groundwater are no less real or less
predictable than indirect impacts from fragmentation. For this reason the Conservancy strongly
supports an up-front commitment to avoidance and minimization of impacts and compensation
for lost wetland functions -- at a minimum for wetlands identified as highly likely or moderately
likely to experience groundwater drawdown and fragmentation impacts. Such commitment
should include identification of viable mitigation options and sites, and applicable compensation
ratios in advance of project permitting, along with performance expectations such as timing and
triggers for implementing mitigation.
46

Recommendation: The final EIS should resolve the uncertainties in the analysis of indirect
impacts of hydrologic alteration and provide a supported single estimate or range of acres and
wetland types affected. If the uncertainties cannot be resolved, worst case analysis must be
included and addressed.
Recommendation: The Record of Decision and permit conditions should include advance
commitment to mitigation for all indirect impacts, including identification of mitigation sites and
compensation ratios.
B. The impacted wetlands are of high ecological significance, provide important
ecological functions, and are part of a high priority conservation landscape. Restoring
these wetland types is difficult and typically has a low rate of success.

As noted in our comments on High Biodiversity Sites and the proposed Land Exchange, the
SNF lands that comprise the impacted wetlands have been mapped as an area of High
biodiversity significance by the MBS, with a high concentration of rare plant occurrences and
wetland communities of high conservation interest including forested bogs and conifer swamp
forests dominated by black spruce, white cedar, and tamarack and more open bog communities
with sparse tree cover. There are also some areas of open shrub and graminoid wetlands that
occur adjacent to the Partridge River and undoubtedly contribute to its aquatic ecosystem
functions. The SDEIS appropriately acknowledges the High Biodiversity Significance of this
complex of wetlands, adding that many of the individual wetlands were rated as Exceptional in
terms of floristic quality and diversity using the MnRAM assessment methodology (SDEIS
5.2.3.3.2). As part of the Sand Lake-Seven Beavers
47
conservation landscape, a Conservancy
priority, the impacted wetlands are part of a larger complex of lands that sustain the headwaters
of the St. Louis River and provide other important landscape and watershed functions
48
.

45
Id.
46
Council on Environmental Quality, 2011. Appropriate Use of Mitigation and Monitoring and Clarifying the
Appropriate Use of Mitigated Findings of No Significant Impact, January 14, 2011.
47
Parts of which are also known as The Headwaters Site or The Hundred Mile Swamp
48
Minnesota Department of Natural Resources, MBS, 2007. An Evaluation of the Ecological Significance of the
Headwaters Site, Superior Uplands Section, Laurentian Uplands Subsection, Lake and St. Louis Counties, Minnesota;
The Nature Conservancy, 2002. Superior Mixed Forest Ecoregional Plan.
27

Minnesota’s peat wetlands, including bogs and associated lowland conifer habitat, are of high
regional and international significance because of their extent, condition, and associated
species diversity and rarity. They provide essential habitat for several species of greatest
conservation need, including Connecticut warblers, boreal chickadees, rusty blackbirds, olive-
sided flycatchers, the butterflies disa alpine and bog copper, and northern bog lemmings.
49

Moose also use lowland conifer forest as post-parturition habitat, a stage of their life cycle
critical to calf survival,
50
and forage in the edges of bog habitat.
51
These wetland communities
are also recognized for their subtle and complex hydrology and water chemistry and their
sensitivity to disturbance. Lowland conifer communities are considered among the most
vulnerable to climate change and are highly sensitive to changes in water levels, both from
surface water or groundwater alterations.
52
They are also among the least well understood of
any wetland type in the region, meaning that little is known about how they transport and store
water, transform water chemistry or sustain their ecological functions, including their
acknowledged roles as natural carbon and water storage reservoirs, regulators of stream flow
and as habitat for a variety of migratory birds and other wildlife.
53

Many scientists and restoration practitioners have cautioned that impacts to imperiled,
vulnerable and other native plant communities of high biodiversity significance are highly
unlikely to be reversed through wetland restoration or creation. A wealth of research and
experience supports the assertion that many of the most imperiled and “vulnerable” native plant
communities are very difficult to restore and indeed many such projects have low rates of
success
54
The low success rate is generally reflected in mitigation guidance used by state and
federal agencies, many of which call for a greater reliance on avoiding and minimizing impacts
to such wetlands, higher compensation ratios or case-by-case determinations for mitigation
when impacts are unavoidable.
55

56


49
Minnesota Department of Natural Resources, 2006. Tomorrow’s Habitat for the Wild and Rare: An Action Plan
for Minnesota Wildlife,Comprehensive Wildlife Conservation Strategy. Division of Ecological Services, St. Paul, MN
50
McGraw, A., 2011. Characteristics of Post-Parturition Areas of Moose and Effective Temperature of Cover Types
in Moose Home Ranges in Northeast Minnesota, Master’s thesis, University of Minnesota-Duluth. January 2011.
51
Minnesota Department of Natural Resources, www.dnr.state.mn.us/snas/confierous_peatlands.html
52
Handler, S, Duveneck, M. J., Iverson, L., Peters, E., Scheller, R. M., Wythers, K. R., Brandt, L., Butler, P., Janowiak,
M., Swanston, C., Barrett, K., Kolka, R., McQuiston, C., Palik, B., Reich, P. B., Turner, C., White, M., Adams, Ch.,
D'Amato, Anthony, Hagell, Suzanne, Johnson, Rosemary, Johnson, Patricia, Larson, Mike, Matthews, S.,
Montgomery, R., Olson, S., Peters, M., Prasad, A., Rajala, J., Shannon, P. D., Daley, J., Davenport, M., Emery, M. R.,
Fehringer, D., Hoving, C. L., Johnson, G., Johnson, L., Neitzel, D., Rissman, A., Rittenhouse, C., Ziel, R. In Press.
Minnesota forest ecosystem vulnerability assessment and synthesis: a report from the Northwoods Climate
Change Response Framework. Gen. Tech. Rep. NRS-XX. Newtown Square, PA; U.S. Department of Agriculture,
Forest Service, Northern Research Station.
53
Minnesota Department of Natural Resources, www.dnr.state.mn.us/snas/coniferous_peatlands.html; U.S.
Department of Agriculture, Natural Resources Conservation Service, Hydrogeomorphic Wetland Classification
System: An Overview and Modification to Better Meet the Needs of the NRCS, Technical Note 190-8-76
54
e.g. Kentula, M.E., 2002, Wetland restoration and Creation, U.S. Geological Survey, Water Supply Paper 2424,
water.usgs.gov/nwsum/WSP2425/restoration.html.
55
U.S. Army Corps of Engineers, St Paul District, 2009. Final St. Paul District Policy for Wetland Compensatory
Mitigation in Minnesota.
28

C. The SDEIS should demonstrate how the project will address the full mitigation
hierarchy required under state and federal rules

The 2008 Federal Mitigation Rule
57
reaffirmed an appropriate “mitigation hierarchy” for
regulatory protection of wetlands and other aquatic resources that has been reflected in federal
and state guidance applicable to Minnesota.
58
The mitigation hierarchy insists that a project
applicant must first consider designs, locations and approaches that avoid impacts, then
develop plans to minimize those impacts that are unavoidable, and compensate for lost wetland
functions and values. The Rule also asserts that compensatory mitigation must be sited with
respect to the context and needs of the watersheds in which they occur. Minnesota’s Wetland
Conservation Act
59
similarly sets out a required “sequencing” plan that shows the applicant has
avoided, minimized, replaced or otherwise compensated for lost wetland functions according to
the hierarchy. See generally, Board Order, Kells v. City of Rochester, 597 N.W.2d 332 (Minn.
Ct. App. 1999) (landowner failed to demonstrate compliance with WCA sequencing
requirements).
The SDEIS provides a mere two paragraphs of description of avoidance and minimization
actions incorporated into the project design.
60
(SDEIS, 5.2.3.3.1). Moreover, there is no
systematic analysis of avoidance or minimization alternatives. A systematic analysis requires
consideration of “different development designs, methods and/or locations to avoid and
minimize impacts.
61
” Insufficient efforts have been made to avoid and minimize impacts through
alternative project designs such as underground mining which was taken out of consideration
largely for economic justifications. We recommend that the EIS include a thorough sequencing
plan that demonstrates adherence to the mitigation hierarchy required by state and federal law
and evaluates meaningful alternatives for avoiding and minimizing wetland impacts.
Recommendation: The final EIS should include a sequencing plan that demonstrates
adherence to the mitigation hierarchy of avoid, minimize and mitigate impacts to wetlands as
required by state and federal law.
D. Higher compensation ratios and financial assurance are warranted because of the
scale, type and setting of impacted wetlands and the difficulty restoring their
functions and values

56
U.S. Army Corps of Engineers, St Paul District.2013. Version 1 of the Guidelines for Wetland Compensatory
Mitigation in Wisconsin (Guidelines), August 1, 2013.
57
Department of the Army, Corps of Engineers, 33 CFR, Parts 325 & 332; Environmental Protection Agency, 40 CFR,
Part 230, Compensatory Mitigation for Losses of Aquatic Resources, Final Rule, April 10, 2008.
58
U.S. Army Corps of Engineers, St. Paul District, 2009; Minnesota Board of Water and Soil Resources, The
Minnesota Wetland Conservation Act Manual, version 1.3, September 2004.
59
Minn. R. 8420.0520
60
Such actions include placing waste rock back in the East and Central Pits after year 11 to reduce additional direct
wetland impacts, siting of a rail spur to avoid wetlands and placement of flow discharge points to minimize aquatic
impacts.
61
Minnesota Board of Water and Soil Resources, 2004. The Minnesota Wetland Conservation Act Manual: A
Comprehensive Implementation Guide to Minnesota’s Wetland Law, version 1.3, Sept 2004.
29

The USACE, St. Paul District mitigation policy, implemented as a joint Memorandum of
Understanding with the Minnesota Board of Water and Soil Resources
62
prescribes a base
compensation ratio of 1.5:1 for wetlands in the northern part of the state, with incentives for in-
place, in-kind and in-advance mitigation, not to be reduced below a minimum of 1:1. The policy
includes a provision for case-by-case determinations of compensation ratios for impacted
wetlands that are difficult to replace, or wetlands that provide an “exceptional level of functions”
as determined using a functional assessment method such as MnRAM. Acknowledging the
ecological significance, condition, and difficulty replacing the majority of the wetlands that will be
impacted by the NorthMet project, the SDEIS assumes that a compensation ratio of as much as
2:1 may be applied to the mitigation plans. However, the policy gives the USACE discretion in
such cases and no maximum compensation ratio is specified.

State law appears to go even farther. For rare natural communities, the Minnesota Wetland
Conservation Act states that the replacement plan for activities that involve modification of a
rare natural community as determined by MNDNR’s Natural Heritage Program must be denied if
the applicable local government unit determines that proposed activities will permanently
adversely affect the natural community. Rare natural communities are defined as “native plant
communities having a state rank of S1, S2 or S3 that are mapped or determined by the MBS to
be eligible for such mapping or any native plant community that is contained within an area
mapped or determined by the MBS to be eligible for mapping....as a site of Outstanding or High
biological diversity.”
63
As noted above, the wetland area affected by direct impacts from the
NorthMet project meets this definition because it is mapped as a High biodiversity site.

It should be pointed out that in other Midwest states such as Michigan and Missouri, mitigation
ratios as high as 4:1 or 5:1 are specified for impacts to forested wetlands or wetlands with rare
or imperiled species. In some states, wetlands with rare or imperiled species are not deemed
appropriate for compensatory mitigation at all, and require strong emphasis on the “avoid” and
“minimize” steps in the mitigation hierarchy.
64


The Conservancy believes that a high compensation ratio is warranted for the majority of the
impacted wetlands at the NorthMet project site, especially the lowland conifer and bog wetlands
complex that is part of the Sand Lake-Seven Beavers ecosystem, given their uniqueness,
significance and landscape context and the difficulty and low success rate of replacement for
these wetland types. We strongly recommend that a compensation ratio of 2:1 or higher be
used for unavoidable impacts to these wetlands after all reasonable measures have been
evaluated for avoiding or minimizing those impacts. Moreover, because of the uncertainty in the
range of wetlands to be affected by indirect impacts, as discussed above, it is even more
important that a higher ratio of mitigation be used, so that the uncertainty does not undermine
the assurance of appropriate mitigation overall.

62
U.S. Army Corps of Engineers, St Paul District, 2009.
63
Board of Water and Soil Resources, 2004.
64
Mich Admin Code, R 281.925; Missouri Department of Natural Resources, Water Pollution Control Program,
State of Missouri Aquatic Resources Mitigation Guidelines, 1998.
30

The 2008 Mitigation Rule and St. Paul District policy also allows for the agency to require
financial assurance mechanisms to ensure that compensatory mitigation is successfully
implemented and permit conditions are satisfied in the event of unforeseen circumstances.
Under the Rule, the USACE District Engineer can determine that financial assurance is not
necessary if alternate mechanisms are in place to ensure confidence in mitigation outcomes.
Minnesota state rules (Minn. R. 8420.0552) also require financial assurance for mitigation.
PolyMet argues that mitigation will be approved and constructed in advance of authorized
impacts, so financial assurance is not required. (SDEIS, Section 3.2.2.4) However, given the
difficulty and poor record of success in restoring lowland conifer wetland systems and the long
period of time needed to restore vegetative structure and to confirm that mitigation has been
successful, the Conservancy believes that financial assurance should be set forth in the final
EIS as required under state and federal law. Such financial assurance should be separate from
that required for mine reclamation and long term maintenance and should be required until
mitigation success criteria are demonstrated to have been fully achieved, not just until
construction is completed.
It is important to recognize that mitigation is not likely to restore all lost functions and that
restoring wetland functions of any kind will take considerable time. Thus it is important that
these shortcomings are compensated through higher than normal mitigation ratios. However, it
is also important that success criteria for this kind of wetland mitigation goes beyond
conventional compliance success, to include functional success, to determine if ecological
functions
65
of the system have been restored, and landscape success, to determine how
restoration has contributed to ecological integrity of region or watershed.
66

Recommendation: A compensation ratio of 2:1 or higher (and no less than 2:1) should be
used for unavoidable impacts to bog, coniferous swamp, hardwood swamp and other wetlands
of the lowland conifer ecosystem.

Recommendation: Financial assurance, separate from that required for mine reclamation,
should be required to insure the success of mitigation, to cover the costs of monitoring and
adaptive management and to insure against indirect impacts to wetlands.

E. Careful monitoring design is needed to validate indirect wetland impacts and evaluate
progress of mitigation toward satisfaction of success criteria

Monitoring is a critical part of the design of any mitigation program, and is essential for
determining progress toward success criteria, and as proposed in the SDEIS, for confirming the
extent and severity of indirect impacts caused by hydrologic or water quality alterations and
consequent need for additional mitigation. As stated above, the Conservancy supports up-front

65
Including carbon storage, hydrologic functions and habitat for rare species
66
Kentula, M.E., 2000, Ecological Engineering, Perspectives on Setting Success Criteria for Wetland Restoration
31

commitment to mitigation for all Highly and Moderately Likely indirect impacts from groundwater
drawdown. However, we recognize the need for intensive monitoring to confirm and verify initial
estimates. The SDEIS notes that wetland monitoring plans and an adaptive management plan
for determining response to indirect impacts will be developed as part of the permitting process.
However, we believe more detail is needed in the EIS on the monitoring, adaptive management
and decision framework that will be used to determine if and to what extent and severity indirect
impacts are occurring, the trigger points that would require mitigation to be implemented, and
the compensation ratios that would be required.
Monitoring to confirm indirect impacts from groundwater drawdown requires a robust sampling
design to collect data from a representative sample of sites, stratified by predicted impact
category (High, Moderate, Low, None) and adjusted for acreage. A robust monitoring design
should require monitoring in all potential impact categories, not just in Highly and Moderately
impacted zones. Additionally, biological monitoring, including annual vegetation surveys, should
be done in conjunction with hydrologic monitoring locations, and hydrologic monitoring should
utilize continuous recorders at all sampling sites, with all data collected made available to the
Co-Lead Agencies and to the public. In addition to shallow monitoring wells or piezometers,
deeper wells at the same locations (in combination with shallow wells) would provide better
evidence of the impacts of groundwater drawdown. Weather stations at one or more sites are
needed to help distinguish true drawdown impacts from the effects of weather and climate.
Multi-parameter biological monitoring is also recommended, not just of plants, which often have
considerable resilience and do not show impacts for several years, especially in forested
wetlands, but also of invertebrates and other biota sensitive to changes in hydrology. Focus
should be on edges of wetlands and other locations that provide early indicators of hydrologic
impacts. Reporting annual average water levels or other such integrated statistics may be
nearly meaningless when used to detect drawdown impacts, and it is important to detail the
wetland hydrograph at daily, weekly and monthly intervals, all of which are easily possible with
the use of continuous recorders.

While water levels and their reductions are important thresholds for evaluating potential wetland
stress, most such indicators have been developed from literature reviews and information
provided from generalized guidance such as soil surveys. Actual outcomes in the field often
stubbornly refuse to follow the predictions of such methods, underscoring the need for effective
monitoring. In addition to water levels, annual and growing season hydroperiods
67
and
hydropatterns
68
are biologically important for determining wetland function and should be
reported in consultation with agency staff. The commitment to identify and monitor reference
wetlands in the monitoring design is laudable. We recommend that monitoring parameters at
reference wetlands be the same as impacted wetlands in terms of frequencies, type and
locations. Reference locations should be free of all direct and indirect effects from the NorthMet

67
A hydroperiod is defined as the number of days per year that an area of a wetland is dry or the length of time
that there is standing water at a location. Hydroperiod is one of the most important factors affecting emergent
plant zonation.
68
A depiction of water levels through annual cycles; this includes water depth and duration, along with quantity,
timing and distribution of surface water to a specific wetland area.
32

project or other disturbance, including existing or future mining projects, yet close enough in
proximity, setting and type that weather and other regional factors are reasonably similar to that
of the impacted wetlands.
Recommendation: The final EIS should fully address monitoring design, adaptive
management, and the decision framework for identifying indirect impacts and associated
mitigation.
F. Mitigation should focus on viable options within the St. Louis River basin, including
watershed- based approaches, mitigation banks or other opportunities to restore
aquatic functions at a scale commensurate with the impacts from the NorthMet
project

The Conservancy acknowledges the difficulty finding appropriate mitigation sites in northeast
Minnesota under present state and federal policy and agrees that PolyMet used a systematic
approach for identifying and evaluating potential off-site mitigation opportunities in the SDEIS.
The sites identified, while not ideal, do hold promise for replacing some lost wetland values if
successful, albeit in locations far removed from the project impacts and, with the exception of
the Zim site, outside the St. Louis River watershed. However, the method employed is a
traditional site suitability method and not based on a watershed plan that identifies needs for
restoring and preserving wetland services as anticipated by the 2008 Mitigation Rule. The Co-
Lead Agencies should require that site searches focus on a larger suite of in-watershed
mitigation opportunities including ecologically suitable wetland banking, on-site mitigation and in
lieu fee program development that addresses restoration of functional loss in the St. Louis
watershed.

As per the 2008 Mitigation Rule, out-of-basin mitigation should be strongly discouraged given
the cumulative un-replaced losses of functions and services that accrue in the impacted
watersheds. As noted in the SDEIS (SDEIS, 5.2.3.3.2), opportunities exist for restoration of
tens of thousands of acres of peatlands affected by ditching within the St. Louis River watershed
and northeast Minnesota in general, but a determination by the USACE of the feasibility of this
for mitigation is not yet completed. The Conservancy strongly urges the USACE to complete
this assessment prior to making a final determination of mitigation requirements for the
NorthMet project.

Moreover, the present approach to determining mitigation needs and solutions on a project-by-
project basis is not sustainable in Northeast Minnesota. If additional mining occurs as expected
in the Lake Superior basin, this approach will become increasingly infeasible. The Mitigation
Rule strongly encourages a watershed approach to mitigation when practicable and
appropriate.
69
The rule also states that the level of information and analysis needed to support a
watershed approach should be commensurate with the scope and scale of the proposed
impacts.
70
The proposed wetlands impacts from the NorthMet Project are unprecedented in

69
33 CFR 332.3(c)(1)
70
33 CFR 3332.3(c)(3)(iii)
33

scale for Minnesota; impacts from additional mining would add significantly to the scope and
scale. The Conservancy believes a coordinated watershed approach to identifying mitigation
needs and options is warranted for the Lake Superior basin in Minnesota and that sufficient
information is available to conduct a watershed-wide analysis. This kind of approach has been
successfully implemented in several trial watersheds in Minnesota and Wisconsin and
documented by the Conservancy in a forthcoming national mitigation handbook.
71


A watershed approach involves developing a watershed plan with four key elements: identifying
watershed needs, identifying potential sites, assessing the potential of sites to meet watershed
needs, and prioritizing sites, areas and desired outcomes. Such a watershed plan would
include restoration and preservation opportunities for wetlands and other aquatic features,
including stream habitat connectivity, on public and private lands. Using a watershed approach,
mitigation could be implemented as an in-lieu fee program or umbrella bank in accordance with
a watershed plan as is currently being discussed in the context of the Northeast Minnesota
Mitigation Strategy.
72


Recommendation: Mitigation should focus on restoration of functional loss in the St. Louis
River Watershed and should include ecologically suitable wetland banking, on-site mitigation
and an ILF program development.
Recommendation: USACE should complete its feasibility determination for peatland
restoration within the St. Louis River Watershed and incorporate this information into its
determination of mitigation requirements for the NorthMet project.




71
Miller, N., J. Wagner and T. Bernthal. 2013. An Ecosystem Service-Based Watershed Approach to Wetland
Conservation in the Great Lakes Basin. National Wetlands Newsletter Vol 35, No 1, pp. 14-29; Wilkinson, J, M. P.
Smith, and N. Miller. 2013. The Watershed Approach: Lessons Learned through a Collaborative Effort. National
Wetlands Newsletter Vol 35, No 1, pp. 9-13)
72
http://www.bwsr.state.mn.us/wetlands/NE-Background.pdf (accessed March 6, 2014)
34

5. Water Pollution and Treatment

A. The SDEIS analysis of the potential impacts from contaminated water is predicated on
best-case assumptions whereby all equipment functions as designed, no operator error
is anticipated, and the potential for failure is insignificant. The SDEIS does not provide
adequate analysis of the potential impacts from wastewater releases that could
reasonably be expected to occur due to human error, equipment breakdowns, or other
system failures associated with wastewater collection, transportation, and treatment.
The quality of treated effluent, runoff or seepage from the project has a strong influence on the
quality of downstream receiving waters. The Conservancy understands that rock from the site
is acid-generating, and acid water moving through the rock will mobilize metals and sulfates.
This creates the potential for leachate from these processes to impact groundwater and surface
water.
73
Therefore, potential water contamination from point and non-point sources related to
the NorthMet mine and processing facility is an important environmental issue associated with
the project.
The Conservancy understands that wastewaters generated from the Mine Site will include runoff
and leachate from the Category 1 Stockpile containment system; runoff and leachate collected
from the temporary Category 2/3 and 4 stockpiles and ore surge pile; water collected from the
mining pits; and “contact-stormwater.”
74
The wastewater treatment facility (“WWTF”) will treat
wastewater from the Mine Site as well as reject concentrate from the reverse osmosis system at
the Plant Site.
According to the SDEIS Figure 3.2-12, p. 3-57, PolyMet does not expect there to be any direct
discharge to receiving bodies from the Mine Site during the operational phase. However, it
could be anticipated that some unrecoverable groundwater seepage from a variety of sources
such as rock stockpiles or mine pits would impact groundwater, which would then provide a
pathway to the Partridge River. The SDEIS states that at closure, approximately 10 gallons per
minute (approximately 14,000 gallons per day) of untreated wastewater from the Mine Site is
expected to be released as seepage from the stockpiles and mine pits (SDEIS 5.2.2). This
seepage would also be expected to impact the Partridge River.
At closure (years 21-40), the Mine Site WWTF will continue to treat waters from the Category 1
stockpile, West Pit, and backfilled East Pit, as well as reject concentrate from the reverse
osmosis system at the Plant Site. The SDEIS states that at closure (year 40), a reverse
osmosis system will be added to the Mine Site to treat waste from the Category 1 stockpile and
the east and west pits. However, PolyMet would like to transition from a mechanical to a non-
mechanical/passive water treatment at some point during the post-closure period (SDEIS 3.2.1).

73
U.S. Environmental Protection Agency, 2010. NorthMet Project- Draft Environmental Impact Statement
CEQ#20090387 letter to the US Army Corps of Engineers.
74
Stormwater that has come into contact with mining operations. “Non-contact stormwater” will be discharged to
the surrounding site.
35

The Plant Site, which will be used to process ore, will include a hydrometallurgical processing
facility, a Hydrometallurgical Residue Facility (built on top of the existing LTVSMC tailings
basin), Tailings Basin with Pond, and a WWTP. The Hydrometallurgical Residue Facility will
have a double liner. Groundwater leakage will be collected and pumped back to the
Hydrometallurgical Residue Facility Pond, which is collected and pumped back to the
Hydrometallurgical Plant.
Water treated at the WWTP will include process water from the Hydrometallurgical Facility and
seepage from the tailings basin. The WWTP will include a reverse osmosis system designed to
achieve a sulfate concentration of 10 mg/L (SDEIS 3.2.2.3.10). The treated wastewater from
the WWTP would be discharged to the tributaries around the tailings basin, including Unnamed
Creek, Second Creek, Trimble Creek, and Mud Lake Creek (SDEIS 3.2.2.3.11). The reject
concentrate from the reverse osmosis system will be transported via pipeline through the
Transportation Corridor from the Plant Site to the Mine Site. According to the SDEIS, 21 gallons
per minute (approximately 30,000 gallons per day) of untreated water from the tailings basin
would be released to the environment at closure (SDEIS 5.2.2). It could also reasonably be
anticipated that some water drainage could seep from the tailing basin during the operational
phase as well as at closure. This water would be expected to contain sulfates and other
contaminants, and could seep through groundwater to wetlands that drain to the Partridge
River.
The SDEIS presumes that during routine operation at the mine site and processing plant, all
wastewater would be collected and treated in a manner that meets state and federal discharge
permits. The USEPA, however, cites mining studies showing that wastewater treatment and
collection failures are, “a common feature of mines.”
75
The SDEIS does not consider
operational failures that might come from human error or equipment breakdowns during the
operation of the facility, but instead refers to a number of required plans that are under
development (SDEIS 3.2.2). However, the SDEIS notes that these plans are only preliminary in
nature.
There are many ways in which a failure could occur in any mining operation, and the
downstream impacts would vary in terms of failure type, duration, and magnitude. The SDEIS
does not examine possible or probable failure types, the duration, or potential magnitude of
accidents or failures that could likely occur at the project site. Possible failure modes include a
pipeline leak, an undetected equipment failure, or overload of the wastewater treatment
systems. The duration of a major failure could vary from a few hours to a few months,
depending on the type and location of the failure and its ease of detection.
During closure, the potential failures associated with routine operation and potential failure
modes of the waste rock storage, Tailings Basin, Hydrometallurgical Residue Collection, and
water collection pits would continue to be of concern. A breach or compromise of the
wastewater collection, treatment, or transportation system would take longer to identify during
the closure/post-closure phase than during the operational phase because of reduced staffing at

75
Bristol Bay Assessment, 2014. U.S. Environmental Protection Agency. An Assessment of Potential Mining
Impacts on Salmon Ecosystems of Bristol Bay, Alaska, EPA 910-R-14-001ES, Region 10, Seattle, WA, January 2014.
36

the mine site. Furthermore, the growth of underbrush, snow accumulation, and other factors
may make it harder to detect or access equipment at the Plant Site, Mine Site, and
Transportation Corridor. Based on the record of historic and currently operating mines, the
USEPA (2014) notes that in any mining scenario, “some failure of the water collection and
treatment system would be expected to occur during operational or post-closure periods.”
76

The Mine Site drains to the Partridge River, and the Plant Site drains to the Embarrass River.
Both rivers are tributaries to the St. Louis River, which is part of the Lake Superior watershed.
Studies of rivers and lakes in St. Louis County and Lake County suggest that waters near the
proposed mine site and plant site have low buffering capacity, meaning that there is a low ability
for the receiving waters in this area to naturally buffer the acidifying effects of elevated sulfates
in wastewater effluent or run-off from the project.
77
The ability of receiving waters to buffer any
acid effluent or runoff from the facility could be further compromised by the cumulative effects of
past or future mining in the region and exacerbated by the effects of extended drought as a
result of climate change.
78
The low buffering capacity of receiving waters in the vicinity of the
Project Site requires preventative measures to eliminate or reduce wastewater discharges from
the Project that would exceed water quality standards. These preventative measures should be
required during both routine operation and under potential failure scenarios, rather than relying
on clean-up or mitigation measures to address the impacts after a release or excedence occurs.
The USEPA Bristol Bay assessment
79
demonstrates that information on potential modes of
failures in mining operations can be meaningfully identified and substantively evaluated in
advance of detailed plans, designs or permit information. The USEPA calculates and discloses
the probabilities and consequences of thirteen potential mine scenario failures, including water
collection and treatment failure, pipeline failure and tailings dam failure. The probabilities range
from “certain” to “95% chance per pipeline in 25 years” to “recurrence frequency of 2,500 to
250,000 years.”
80

As the Bristol Bay analysis demonstrates, it is essential to incorporate realistic assumptions
about mine failure scenarios and their consequences into the NorthMet EIS so that a more
realistic picture of environmental risks can be obtained. The lack of such information, combined
with the assumption that everything will work as predicted, is inconsistent with the “hard look”
test the courts have used
81
to evaluate the adequacy of environmental impact statements, and a
deeper analysis is warranted here given the vulnerability of receiving waters.

76
Bristol Bay Analysis, p. ES-16
77
Nichols, D.S. and R.E. McRoberts. 1986. Relations between lake acidification and sulfate deposition in Northern
Minnesota, Wisconsin, and Michigan. Water, Air, and Soil Pollution 31, 197-206.
78
Schindler, D. W. 1997. Widespread effects of climatic warming on freshwater ecosystems in North America.
Hydrological Processes, Vol. 11, No. 8, pp. 1043-1067.
79
Bristol Bay Analysis, pp. 14-5 and 14-6.
80
Id. at 17.
81
The National Environmental Policy Act (NEPA) states that all Federal agencies "to the fullest extent possible"
must provide a detailed environmental impact statement (EIS) (42 U.S.C. 4332). Courts consistently have held that,
at a minimum, NEPA imposes a duty on Federal agencies to take a "hard look at environmental consequences"
(Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir., 1972).
37

Recommendation: The final EIS should identify for all phases of the project potential risk and
release scenarios that could occur during routine operation and probable failure scenarios at the
Mine Site, Plant Site, and Transportation Corridor including the tailings basins, stockpiles and
breakdown of the reverse osmosis systems. The final EIS should evaluate the effect on
downstream resources in terms of failure type, duration, and magnitude as was accomplished in
the USEPA’s Bristol Bay assessment.
B. The Tailings basin, Waste Rock Stockpiles, and Hydrometallurgical Residue Facility
are potentially significant threats to groundwater quality. Therefore, the stability and
structural integrity of these storage systems warrant additional consideration when
evaluating potential risk scenarios.
The SDEIS states that conceptual designs for the waste rock stockpiles, tailings basin, and
Hydrometallurgical Residue Facility have been designed and modelled to meet safety and water
quality criteria, and that the integrity will continue to be monitored throughout operation and
lifetime closure (SDEIS Section 5.2.14). The USEPA however has raised concerns about the
structural integrity of the tailings basin.
82
Furthermore, the USEPA has identified a history of
tailings dam and rock stockpile failures in other mines.
83
The Conservancy is concerned that the
tailings basin will contribute to water quality impacts by leaking contaminants into the ground
waters that may be hydraulically connected to surface water. Given the concerns regarding
the structural integrity of these storage systems, the Conservancy believes that the analysis of
the stability of the Tailings Basin, waste rock stockpiles, and Hydrometallurgical Residue Facility
warrant special consideration when evaluating failure and risk scenarios.

C. The nature of the effluent from mining operations, and the harsh weather conditions
of northern Minnesota pose unique challenges to the effective operation of the
wastewater treatment systems proposed at the Project site. The potential barriers to
effective wastewater treatment should be discussed and addressed in the SDEIS.
During the operational phase, a reverse osmosis system would be used at the Plant Site as the
final wastewater treatment method prior to discharge to the Second Creek and Trimble Creek.
This reverse osmosis system will be in place during the operational phase and through the first
forty years of the closure phase.
The Conservancy understands that forty years after closure, a reverse osmosis system would
be added to the Mine Site to actively treat wastewater until it could be demonstrated that a
passive treatment system would adequately treat mine site wastewaters. The Bristol Bay
Analysis cites several studies of reverse osmosis systems used in mining applications,
indicating that treatment can be compromised through fouling and scaling caused by calcium,
silt, or metals build up. In addition, these studies indicate that the membranes can be damaged

82
U.S. Environmental Protection Agency, 2010. NorthMet Project – Draft Environmental Impact Statement
CEQ#20090387 letter to the U.S. Army Corps of Engineers.
83
Bristol Bay Assessment, p. 9-2
38

by abrasive materials such as silt.
84
The NorthMet SDEIS does not address potential causes of
breakdown or compromise of the reverse osmosis system, or the potential for release in such
scenarios, nor does it assure that replacement membranes would be promptly available and
easily installed in order to minimize any impacts from what would seem to be routine failures of
these systems in other facilities.
Minnesota’s mining reclamation rules state that a “mining area shall be closed so that it is
stable, free of hazards, minimizes hydrologic impacts, minimizes the release of substances that
adversely impact other natural resources and is maintenance free.”
85
Thus, it is important that
long-term maintenance needs of active or “passive” treatment systems be thoroughly
understood, documented and incorporated into calculation of financial assurance requirements.
Although a reverse osmosis system has been added to the planned mine site wastewater
treatment system, the SDEIS suggests that a passive treatment system remains an important
part of the long-term water treatment strategy, and that PolyMet desires to transition from a
mechanical to a non-mechanical/passive treatment system once a passive system can be
proven effective (SDEIS, Section 3-2). The Conservancy recommends that any consideration of
a passive system (e.g. an artificial wetlands treatment system) include an analysis of
performance over the long term and under extreme weather conditions as experienced in the
region. Studies at the Dunka Mine in northern Minnesota have shown that the effectiveness of
wetlands systems at removing metals tends to decrease as temperatures decrease, with outlet
concentrations of metals approaching inlet concentrations during winter.
86
Therefore, although
the amount of water being discharged decreases in freezing weather, the water that is
discharged has a higher metal contaminant loading, suggesting that its performance during the
winter is compromised. The USEPA echoes the concerns about treatment efficiencies of
wetlands in severe winter environments. The USEPA also notes that passive systems are not
maintenance free, and any discussion of wetlands treatment should also include an explanation
of the long term maintenance of the system, such as removal and disposal of accumulated
metals in the wetland plants and sediments.
87

Large and long-term projects like the NorthMet project are inherently complex and subject to
considerable uncertainty. For this reason, experts in the field of Adaptive Environmental
Assessment and Management have argued that it is unrealistic to assume that such projects
can be designed to be “fail-safe.” Given the inevitability of errors, break downs, accidents, and
unexpected events over the long run, some amount of failure should be anticipated and
incorporated into the project’s design and management.
88
The focus of design and assessment
should be on development of decision frameworks and strategies that ensure it is “safe-fail,” or
safe in failure, rather than fail-safe. The approach taken in the SDEIS is simply to assume that

84
Bristol Bay Analysis, p. 8-17.
85
Minn R. 6132.3200 (2013) (emphasis added).
86
ITRC (Interstate Technology & Regulatory Council), 2010. Dunka Mine, Minnesota. Mining Waste Treatment
Technology Selection Web. Washington D.C. Interstate Technology & Regulatory Council, Mining Waste Team.
87
U.S. Environmental Protection Agency, 2010.
88
Holling, C. S., 1978. Myths of ecological stability: Resilience and the problem of failure, in Studies on Crisis
Management. C.F. Smart and W. T. Stanbury, eds., Butterworth, Montreal
39

everything will work as predicted, failures will not occur and the regulatory process will ensure
that environmental risks will be mitigated. As the USEPA has pointed out in Bristol Bay and
elsewhere, this is simply not realistic, especially over the effectively perpetual treatment
associated with this project.
Recommendation: If wetlands are to be used as a wastewater treatment method, the final EIS
should include an analysis of expected wastewater treatment performance during the winter, the
length of time a wetland treatment system can function before reaching capacity and how the
effectiveness of the system will be monitored. It should also discuss long term maintenance of
the system, such as removal and disposal of accumulated metals in the wetland plants and
sediments.
D. Adaptive management is proposed as a framework for dealing with uncertainty, but
the SDEIS does not describe an effective AWMP. The SDEIS does not comprehensively
evaluate risk due to the lack of a thorough examination of potential failures and the lack
of an effective adaptive management plan.
The SDEIS makes numerous references to adaptive management throughout the report, and
specifically cites AWMP as a key element for managing risk and uncertainty related to water
treatment and contamination (SDEIS ES-24). Adaptive management is defined as:
Adaptive management promotes flexible decision making that can be adjusted in the face of
uncertainties as outcomes from management actions and other events become better
understood. Careful monitoring of these outcomes both advances scientific understanding and
helps adjust policies or operations as part of an iterative learning process….It is not a ‘trial and
error’ process, but rather emphasizes learning while doing. [It] does not represent an end in itself,
but rather a means to more effective decisions and enhanced benefits.
89

Although adaptive management is seen as compatible with environmental analysis under
National Environmental Policy Act (“NEPA”), it is intended as a rigorously scientific approach to
learning and adapting to change and uncertainty in complex projects.
90
As such, an adaptive
management framework is required that specifies the management hypotheses or assumptions
to be tested, the monitoring design that will be used to test that hypothesis and determine if
changes (adaptations) are needed, thresholds that will trigger management and mitigation
actions, and what actions will be taken if those thresholds are met.
91
The “wait and see”
approach reflected in the SDEIS is not adaptive management, and is an inadequate strategy for
addressing uncertainty and change.

89
National Research Council, 2004. Adaptive Management for Water Resources Planning. The National Academies
Press, Washington, DC. Also B.K. Williams, 2011. Adaptive management of natural resources: framework and
issues. Journal of Environmental Management 92: 1346-1353
90
Ruhl, J.B. and R.L. Fischman, 2010. Adaptive Management in the Courts. Minnesota Law Review 95:425-484.
91
Schultz, C. and D. Seesholtz, 2013. Adaptive Management and Cumulative Effects: Satisfying Legal Requirements
and Addressing Stakeholder Concerns, presentation, December 10, 2013. The Human Side of Restoration Webinar
Series, Colorado State University, Colorado Forest Restoration Institute, U.S. Department of Agriculture, Forest
Service, National Forest Foundation.
40

While the SDEIS does include general information about adaptive management plans, it states
the AWMP (and other adaptive plans), are preliminary in nature and will be “adjusted” during the
final design and permitting process (SDEIS, Section 5.2.2.3.5). In fact, there is almost no
information about the AWMP in the SDEIS, and information on the decision framework is
missing entirely. This information can and should be incorporated into the final EIS now, and an
opportunity for public comment on a developed AWMP should be provided, rather than deferring
it to the permitting phase of the project. Likewise, the responsibilities of designing, interpreting
and financing the necessary monitoring should be clearly documented in the final EIS, and the
cost of monitoring and potential mitigation should be factored into the amount of the financial
assurance.
For example, the SDEIS estimates that approximately 10 gallons per minute (approximately
14,000 gallons per day) of untreated wastewater from the mine site is expected to be released
from the Mine Site due to seepage, and 21 gallons per minute (approximately 30,000 gallons
per day) of untreated water from the tailings basin would be released to the environment.
(SDEIS, Section 5.2.2) In both of these situations, the SDEIS suggests the impact from these
releases will be minimal. However, the SDEIS does not address the questions of what
measures will be taken if these assumptions are incorrect and what would be done to prevent or
mitigate the effects. Furthermore, if the assumptions of hydraulic conductivity are incorrect, this
could affect the ability of the wastewater treatment systems to effectively capture and manage
the volume of effluent that the system is designed to treat. The SDEIS should clearly describe
the methods that would be used to identify errors in the assumptions, the design features, if any,
that are incorporated to address miscalculations, and the types of mitigation or other adaptive
management measures for different failure scenarios.
Recommendation: The AWMP should provide a clear framework for understanding how
adaptive management will work. An adaptive management framework is required that specifies
the management assumptions, the monitoring design, thresholds that will trigger mitigation
actions, and the actions that will be taken if those thresholds are met.
Recommendation: All permits should be conditioned on commitment to mitigating actions
identified in the AWMP and other adaptive management plans as documented in the final EIS
and Record of Decision.
Recommendation: Given its importance to the environmental risks of the NorthMet project,
opportunity for public comment on the AWMP should be provided prior to issuance of a Permit
to Mine.


41


6. Water Flows and Levels


A. The NorthMet Project Action has the potential to significantly alter flows and water
levels in nearby streams and wetlands, including headwater streams of the Partridge and
Embarrass Rivers that are both tributary to the St. Louis River, a Conservancy freshwater
conservation priority.

Hydrology is a primary control on the biology and ecology of river systems, through its influence
on flow, channel geomorphology, water quality and habitat availability.
92
Hydrology plays a key
functional role structuring instream physical habitat, water chemistry and water quality, including
nutrient cycling and thermal habitat. For this reason, The Conservancy considers hydrology a
“Key Ecological Attribute” in the context of conservation planning for priority freshwater systems.
The Conservancy has articulated the need to develop standards for environmental flow
protection for both surface water and groundwater, and has, in partnership with leading
international river scientists, developed and piloted a methodology for establishing flow and
water level criteria that are protective of ecological needs based on natural hydrology.
93


Because the Conservancy’s SMF and Great Lakes ecoregional plans have identified the St.
Louis River headwaters (adjacent to the Partridge and Embarrass River sub-watersheds) as a
freshwater priority, we are evaluating the SDEIS with respect to the potential to impact flows in
the Partridge and Embarrass Rivers and the St. Louis River.


B. Alterations to seasonal pattern, timing, magnitude, and frequency of low and high
flows are potentially more significant than indicated by the SDEIS, and that impacts of
NorthMet Project activities on flows and water levels may be ecologically significant,
especially at low and high flows.

All potential changes to headwater water budgets have the potential to impact downstream
wetland and aquatic systems. Significant hydrologic impacts occur in the context of both mining
operations and related clean up and mitigation. The combination of mining withdrawals,
dewatering, and associated changes in forest and wetland cover have the potential to alter the
natural pattern of water flows and levels beyond the limits of natural variation to which native
aquatic biota and communities are adapted, contributing to loss of biodiversity. We note that
significant impacts are already well documented in the project area as a result of historic
taconite, peat, and other mining and dewatering activities.

As the SDEIS acknowledges, “The NorthMet Project Proposed Action could affect flows in the
Partridge River and its tributaries by changing drainage areas (e.g., alteration or reduction in
watershed area), reducing groundwater baseflow contributions during the dewatering and

92
Gilvear et al. 2002, Poff et al. 2010
93
Richter et al. 2011
42

flooding of the East Pit and West Pit (i.e., years 1 to 40), and withdrawing water from Colby
Lake occasionally for use as makeup water at the processing plant during operations (i.e., years
1 to 20)” (SDEIS Section 5.2.2.3.2). The NorthMet project could also affect Embarrass River
tributary streamflow via “augmentation during reclamation (i.e., years 20 to 40).” Elsewhere, the
SDEIS acknowledges the ecological importance of the seasonal magnitude, pattern and timing
of the natural hydrograph, for example: “Maintaining the seasonal variation in hydrological
regime is important, especially during the spring when high flows cue spawning activity and
provide access to traditional fish spawning and rearing habitat.” (SDEIS Section 4.2.6.1.1)

The SDEIS uses the Indicators of Hydrologic Alteration (“IHA”) to evaluate percent change in
different environmental flow criteria based on natural vs. project impact flows at different
locations on the Partridge River.
94,95
XP-SWMM modeling results are evaluated based on these
criteria, citing the MN DNR recommendation that “maintaining surface flows within about plus or
minus 20 percent of existing conditions in mining-affected streams should be a management
objective where reasonably practical in order to maintain existing aquatic ecology.” Based on
XP-SWMM modeling, the SDEIS concludes that streamflow impacts will not be significant (i.e. <
20% for all indicators) to either river at any of the modeled locations.
96
As indicated in SDEIS
Table 5.2.2-25, the NorthMet Project Proposed Action would reduce flow in the Upper Partridge
River during mine operations from 0 to 8 percent depending on evaluation location, with less of
an effect (0 to 5 percent) on higher flows.

The Conservancy supports the use of the IHA criteria for assessing hydrologic alteration.
However, we note that 20% alteration can represent a significant departure at extremely low
flow or high flow conditions when it is additive to the range of natural variation. In many settings
where the Conservancy has participated in development of regional criteria for environmental
flow protection, the 20% criteria is applied generally across the majority of the hydrograph, but
more protective criteria for allowable alteration are developed for specific environmental
indicator statistics, vulnerable periods or life history stages such as minimum winter or summer
baseflows.
97
Because under natural conditions the SDEIS suggests that baseflows in the
project area can be minuscule in comparison to mean and annual flows,
98
reductions of 5-20%
are potentially ecologically significant.


94
Richter et al. 1997; Table 5.2.2-25 presents the results for flow statistics.
95
“A comprehensive hydrologic model was not developed to assess Project-related impacts to hydrology in the
Embarrass River watershed, based on the relatively small changes in estimated Tailings Basin seepage relative to
average flows in the Embarrass River.” PolyMet 2013j
96
PolyMet 2013i, Attachment G
97
Richter et al. 2011.
98
From the SDEIS: “The available flow records indicate that streamflow is generally very low from late fall through
the winter, rising sharply during spring snowmelt, and receding during the summer, except for occasional heavy
storms. This pattern of significantly reduced summer streamflow is characteristic of streams draining extensive
bogs (Brooks 1992). Baseflow is very low during the winter because of the relatively thin glacial drift over bedrock,
and because little groundwater recharge occurs since most precipitation falls as snow and is not available for
infiltration or runoff until it melts (Siegel and Ericson 1980).” (SDEIS 4.2.2.2.2). However, similarity of the low
baseflow statistics for the average annual 1-day, 3-day, 7-day, and 30-day minimum at locations SW-002, SW-003,
and SW-004 is questionable (PolyMet 2013i, Attachment G).
43

SDEIS Chapter 8 and Appendix C both detail major differences of opinion between the
Cooperating and the Co-lead Agencies on the issue of flows.
99
The use of the 1978-1987 flow
record to calibrate flows is based on the assumption that there have been no significant land
use or drainage area changes in the watershed. However, there have been significant changes
in annual and seasonal precipitation since the 1980s, including a gradual increase in annual
precipitation and significant increases in the frequency and magnitude of summer extreme
rainfall events.
100


The basis of the low baseflow estimates used in the SDEIS XP-SWMM and MODFLOW
modeling result in extremely low estimates of recharge and hydraulic conductivity for the
shallow surficial materials overlaying the bedrock at the Plant and Mine Sites. The SDEIS
contends that the use of low baseflows in the Mine Site models is reasonable on the basis that
low flows in the area have been augmented by the dewatering activities of the Northshore
Mining operations, and that by using conservative estimates of baseflow, they are modeling
downstream concentrations of contaminants conservatively. The baseflow index (cfs per
square mile) method based on 9” annual recharge for this area
101
would suggest an annual
average baseflow of close to 10-15 cfs. The winter baseflows of < 1 cfs used in the modeling
therefore are an order of magnitude less than the average annual baseflow that would be
predicted, and are also much less than recent observations. While this does not necessarily
demonstrate that baseflows used in the model are outside the range of natural variation for
short-duration minimum flows, it does support the case for a fuller sensitivity analysis.

Altered surface and groundwater hydrology, wetlands losses, and groundwater drawdown from
dewatering may interact to impact downstream flows and nearby wetlands. The SDEIS
acknowledges that groundwater drawdown would occur surrounding the mine pits and that
groundwater elevations may decrease near the Tailings Basin as a result of proposed
engineering controls, but acknowledges that there are no state or federal regulatory standards
for the maximum allowable change in groundwater levels. Rather the impacts are evaluated on
the basis of impacts to hydrology and adjacent ecosystems. It is widely acknowledged that
mine pit dewatering can have significant indirect impacts on adjacent wetlands and surface
water bodies (e.g., headwater streams) via impacts on local and regional water tables.
102
The

99
Differences are acknowledged in the SDEIS; Table 4.2.2-9 acknowledges that for all locations along the Partridge
River, the XP-SWMM-estimated baseflow is less than the MDNR-measured winter flow. The SDEIS states “this
disparity is believed to occur” because the XP-SWMM model was calibrated to low flow conditions when there was
no dewatering from the Northshore Mine Pit (January and February 1985). The SDEIS reports average winter 2011
baseflows at SW-003 of 5 cfs (Table 4.2.2-9). GLIFWC reports flow statistics for a gage recently installed at Dunka
Road (SW-003) during a low flow period when there were zero dewatering discharges from the Northshore Mining
operation, and found Q90s all exceeding 1 cfs, whereas the XP-SWMM uses a low flow of 0.51 cfs for this location.”
100
http://climate.umn.edu/climatechange/climatechangeobservednu.htm (accessed on March 6, 2014);
http://www.seagrant.umn.edu/downloads/stormwater10/MarkSeeley-
ClimateChangeMNHydrologicImplications.pdf (accessed on March 6, 2014)
101
Delin et al. 2007
102
For example, in the Environmental Assessment Worksheet for the 2008 Minntac mine expansion, it is
acknowledged that “While mine pit dewatering discharge will replace some of the natural flow that is lost,
44

SDEIS predicts that such impacts will be minimal in the context of the NorthMet Project based
on assumptions and measurements of hydraulic conductivity and shallow surficial aquifer in the
project area. However, the SDEIS acknowledges that there is significant uncertainty
surrounding groundwater movement and connectivity at the Mine Site (SDEIS Section
5.2.2.3.2). Rather, in lieu of modeling they based assessments of impacts on an analog from a
nearby site. This uncertainty is cited under SDEIS, Major Difference of Opinion #8 between the
Cooperating and the Co-lead Agencies. The Co-lead agencies’ response recognizes the
uncertainty, and says that “in the event that the required wetland monitoring identifies additional
indirect effects, permit conditions would likely include a plan for adaptive management practices
to be implemented, such as hydrologic controls or additional off-site compensatory mitigation,
which may be identified through annual reporting.” We note that the headwaters of the
Partridge River, and therefore groundwater baseflows to the Partridge, are included in the zone
potentially impacted by groundwater drawdown.
103


Recommendation: More protective flow criteria (< 5% alteration) should be used for flows at
the low and high end of the frequency distribution to evaluate the potential for impact to aquatic
systems. Mitigating measures should be specified for periods when flow alteration exceeds this
criterion.
Recommendation: The final EIS should re-evaluate assumptions about the basic hydrology of
the project site in light of current data, including baseflow estimates in affected streams.
Assessment of impacts and conclusions derived from flow and water quality modeling results
should be revisited if those assumptions are in error.

C. Any errors or mischaracterizations of flows have the potential to significantly impact
the accuracy of water quality predictions.
As noted, hydrology is a major driver of water quality via the quantity of surface and
groundwater that comes into contact with mine waste, tailings, etc. and the subsequent flow
paths to wetland and stream ecosystems. The SDEIS itself notes that “Estimating the
groundwater contribution to flow in the Upper Partridge River is necessary for modeling future
impacts since groundwater and surface water quality are different.” (SDEIS Section 4.2.2.2.2). If
surface and groundwater flow volumes are significantly larger than anticipated by the models, it
could have implications for the volume of seepage or runoff water that may ultimately escape
the site without being treated, as well as for total treatment volumes. We interpret that XP-
SWMM predicts so little alteration of streamflows during the mine pit dewatering and pit filling
periods by assuming that the lined pits and capture areas will be sufficient to accommodate the
full range of potential precipitation and runoff events, groundwater leakage and capture
volumes, and that the WWTF will treat and discharge volumes of water roughly equivalent in

downstream water bodies may also be impacted by the “cone of depression” that results from pumping,
particularly groundwater-fed streams and water bodies.” (Minntac EAW)
103
Because adaptive management is the principal means for addressing this uncertainty, permit conditions
specifying the details of adaptive management are critical. See also the discussion in Section 5.D herein regarding
the inadequacy of the AWMP.
45

volume and timing to those that would be generated under a natural flow scenario. We are
concerned, however, about the operative capacity of the WWTF (particularly post-closure) and if
the pits and the RO facility will be able to handle 100- or 500-year precipitation events (such as
that which occurred in the St. Louis basin in June 2012) indefinitely following closure of
operations. To avoid hydrologic impacts from altered storage and runoff, the wastewater pits
and WWTF will have to be able to accommodate the full range of potential runoff events, and
control discharges so as to make them seasonally appropriate and comparable to the natural
hydrograph.
Recommendation: The final EIS should explicitly define and describe “adaptive engineering
controls” as well as address the capacity to accommodate the full spectrum of extreme storm
events at both the Plant Site and Mine Site, including event frequencies anticipated under future
climate change scenarios. The EIS should also describe the capacity of the WWTP to pattern
permitted discharges on the natural flow regime.
Recommendation: The final EIS should include a sensitivity analysis of flow and water quality
impacts to a range of baseflow, climate, and leakage estimates. The results of this analysis
should be used to identify mitigating actions that would be implemented to avoid additional
impacts.


D. The NorthMet Project will potentially impact stream channel stability.

Wetland losses and loss of storage in peat and wetland soils can also significantly increase
runoff (Brooks 1988). Sedimentation and erosion have negative implications for aquatic habitat,
e.g. by smothering substrates, impairing macroinvertebrate communities at the base of the food
chain, and widening and degrading pool and riffle habitats. Excessive sedimentation can also
negatively impact wild rice. The Sand Lake-Seven Beavers ecosystem analysis identified
stream channel sensitivity to management practices as a key issue, based on observations
about the impact of headwater forest and wetland cover losses on stream channel stability. The
dominant stream channel types observed in the St. Louis headwater watershed (Rosgen C5,
C6, E5 and E6) were described as highly susceptible to disturbances such as changes in
stream flow magnitude and timing, or increases in sediment.
104
Timber harvest affecting 40-
60% of watershed area can have measurable increases in streamflows, whereas as little as
20% of watershed in young forest can lead to desynchronized peak snowmelt flows in the
spring. These changes can lead to elevated erosion and deposition rates for 15 years, or even
longer for slow-growing forest types.
105

The NorthMet SDEIS examines and then dismisses the possibility that NorthMet flow changes
have any significant implications for downstream channel stability. Unlike streams downstream
from timber harvesting sites, at the NorthMet project, the pit ponds are designed to capture and
store runoff and release from the WWTF in amounts roughly similar to those that would be

104
Fedora 2005
105
Verry 2004; Verry, Lewis & Brooks 1983
46

produced by natural watershed conditions. It is acknowledged in the SDEIS that there is some
erosion and sedimentation in the headwaters of the Partridge River which may be attributable to
flow augmentation from pre- existing dewatering operations, namely the Northshore Mining /
Peter Mitchell pit that has a permit to discharge up to 29 cfs to the Partridge River. However,
the final EIS should give greater consideration and analysis of the effect of the project on stream
channel stability.


E. The effects of climate variability may be additive to project-related change, especially
for drier periods.

The SDEIS states that flows will return to nearly pre-NorthMet Project Proposed Action
conditions during closure. However, the Conservancy suggests that downstream impacts to
flows in both rivers may extend beyond the 20-40 year timeframe, based on alterations of
surface and groundwater hydrology made at the Plant and Mine sites, in conjunction with
mechanical treatment operations and discharges, and existing alterations discussed in the
SDEIS. It is unclear how much longer the Northshore Mining dewatering and associated
augmentation of the Upper Partridge River will continue. Regardless, additional increases in
precipitation, precipitation intensity, and variability are considered extremely likely under most
downscaled climate models.
106
NorthMet project impacts may be either additive or
compensatory to these effects depending on the time frame. The SDEIS fails to address how
climate change may affect its predictions regarding flow levels.

Recommendation: Assessment of potential hydrologic impacts of the NorthMet Project for the
Partridge and Embarrass Rivers should be evaluated based on up-to-date understanding of
current and future climate scenarios.

F. The NorthMet Project should evaluate the potential impacts of flow capture,
dewatering, and augmentation via permitted discharges on stream temperature.

The NorthMet SDEIS does not consider potential impacts of mine operations and WWTP
discharges on stream temperatures. Streamflow alterations associated with hydroelectric
power, water diversions, mining, and other land use activities can alter water temperatures in
rivers and streams. Water diversions associated with stormwater capture, storage and
treatment can affect temperature. Mining may involve extensive riparian clearing and often
results in diversion of flow and excavation of deep pits that can increase or decrease water
temperatures in rivers and streams.
107
Loss of streamside cover can increase water
temperatures.
108
Changes in water temperatures can affect fishes, either detrimentally or

106
Galatowitsch, S., L. Frelich, L. Phillips-Mao, 2009. Regional climate change adaptation strategies for biodiversity
conservation in a midcontinental region of North America. Biological Conservation 142: 2012-2022.
107
Kondolf 1997
108
Bartholow 2000, Cross et al. 2013
47

beneficially, depending upon other environmental factors.
109
Of all the life-stage requirements of
fishes, water temperature is one of the most important.

Stream and river systems are identified as potentially some of the most vulnerable systems to
climate change in the upper Midwest and Great Lakes.
110
Based on the IBI assessment of the
Partridge and Embarrass Rivers, several headwater streams have been classified as cold water
or cool water. Both of these thermal regime types are also considered highly vulnerable in
northeast Minnesota under anticipated climate change.
111


Recommendation: Given the potential for flow augmentation and its impact on erosion and
sedimentation, the EIS, Record of Decision and permit conditions should address appropriate
monitoring and adaptive management for thermal regimes, downstream sediment and
associated habitat impacts.


References

Bartholow, J. M. 2000. Estimating cumulative effects of clear-cutting on stream temperatures. Rivers
7:284–297.

Berndt, M. and T. Bavin. 2009. Sulfate and mercury chemistry of the St. Louis River in Northeastern
Minnesota. A Report to the Minerals Coordinating Committee.
Berndt, M. and T. Bavin. 2011. Sulfate and mercury cycling in five wetlands and a lake receiving sulfate
from taconite mines in Northeastern Minnesota. Final report. Minnesota Department of Natural
Resources, St. Paul, MN.
Brooks, K.N. 1988. Hydrologic impacts of peat mining. P. 160-169, In: D.L. Hook et al. (eds) The
ecology and management of wetlands, Timber Press, Portland, OR.
Brooks, K.N. 1992. Chapter 10: Surface Hydrology. In Wright, H.E. (ed.). The Patterned Peatlands of
Northern Minnesota, 153-162. Minneapolis: University of Minnesota Press.
Clausen, J.C., Brooks, K.N. and Guertin, D.P. 1981. The water resources of peatlands -summary of two-
year results. Minnesota Department of Natural Resources, St. Paul, Minnesota. 102 pp.
Cross, B.K., M.A. Bozek and M. G. Mitro. 2013. Influences of Riparian Vegetation on Trout Stream
Temperatures in Central Wisconsin. North American Journal of Fisheries Management, 33:4, 682-
692.
Delin, G. N., Healy, R. W., Lorenz, D. L., and J.R. Nimmo. 2007. Comparison of local- to regional-scale
estimates of ground-water recharge in Minnesota, USA . USGS Staff -- Published Research. Paper
213. http://digitalcommons.unl.edu/usgsstaffpub/213. [Accessed 01/20/2014]. GIS shapefile from

109
Wehrly et al 2003
110
Handler et al, in press
111
Easterling and Karl 2001, Kling et al. 2003, Lyons et al. 2010, Westenbroek et al. 2010, Johnson et al. 2014
48

MN DNR. http://www.dnr.state.mn.us/groundwater/groundwater_recharge_metadata.html [Accessed
02/27/2014].
Easterling, D.R., and T.R. Karl, 2001. Potential consequences of climate variability and change for the
Midwestern United States, Chapter 6. In: Climate change impacts on the United States: the potential
consequences of climate variability and change, report to Congress of the National Assessment
Synthesis Team. New York: Cambridge University Press, 167-189.
Gafni, A. and K.N. Brooks. 1986. Hydrologic properties of natural versus mined peatlands. In Proc.
Advances in Peatlands Engineering, National Research Council Canada. Ottawa, Canada.
Gafni, A., and K.N. Brooks. 1990. Hydraulic characteristics of four peatlands in Minnesota. Can. J. Soil.
Sci. 70:239-253.
Gilvear, D.J., K.V. Heal, and A. Stephens. 2002. Hydrology and the ecological quality of Scottish river
systems. The Science of the Total Environment 294: 131-159.
Handler, S, Duveneck, M. J., Iverson, L., Peters, E., Scheller, R. M., Wythers, K. R., Brandt, L., Butler, P.,
Janowiak, M., Swanston, C., Barrett, K., Kolka, R., McQuiston, C., Palik, B., Reich, P. B., Turner, C.,
White, M., Adams, Ch., D'Amato, Anthony, Hagell, Suzanne, Johnson, Rosemary, Johnson, Patricia,
Larson, Mike, Matthews, S., Montgomery, R., Olson, S., Peters, M., Prasad, A., Rajala, J., Shannon,
P. D., Daley, J., Davenport, M., Emery, M. R., Fehringer, D., Hoving, C. L., Johnson, G., Johnson, L.,
Neitzel, D., Rissman, A., Rittenhouse, C., Ziel, R. In Press. Minnesota forest ecosystem vulnerability
assessment and synthesis: a report from the Northwoods Climate Change Response Framework.
Gen. Tech. Rep. NRS-XX. Newtown Square, PA; U.S. Department of Agriculture, Forest Service,
Northern Research Station.
Jeremiason, J.D., D.R. Engstrom, E.B. Swain, E.A. Nater, B.M. Johnson, J.E. Almendinger, B.A.
Monson, R.K. Kolka. 2006. Sulfate addition increases methylmercury production in an experimental
wetland. Environ Sci Technol. 2006 Jun 15;40(12):3800-6.
Johnson, L. W. Herb, M. Cai. 2014. Effects of climate change on the distribution of coldwater fish in North
Shore Streams. Lake Superior Stream Science Symposium, January 7-8, 2014. Laurentian Resource
Conservation District. http://www.lrcd.org/uploads/1/6/4/0/16405852/johnson_climate_change-
cold_water_fish.pdf [Accessed 2/28/2014].
Kling, G.W., K. Hayhoe, L.B. Johnson, J.J. Magnuson, S. Polasky, S.K. Robinson, B.J. Shuter, M.M.
Wander, D.J. Wuebbles, D.R. Zak, R.L. Lindroth, S.C. Moser, and M.L. Wilson (2003). Ecological
Vulnerability to Climate Change: Aquatic Ecosystems, Ch. 3 in Confronting Climate Change in the
Great Lakes Region: Impacts on our Communities and Ecosystems. Union of Concerned Scientists,
Cambridge, MA.
Kondolf, G.M. 1997. Hungry water: Effects of dams and gravel mining on river channels. Environmental
Management 21(4): 533-551.
Lyons, J., J.S. Stewart, and M. Mitro. 2010. Predicted effects of climate warming on the distribution of 50
stream fishes in Wisconsin, U.S.A. Journal of Fish Biology 77, 1867–1898
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http://www.dnr.state.mn.us/input/environmentalreview/minntac/index.html [Accessed 03/02/2014]
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Nagorski, S., J. N. Moore, T. E. McKinnon, D. B. Smith
.
Geochemical response to variable streamflow
conditions in contaminated and uncontaminated streams. Water Resources Research 39, Issue 2,
February 2003.
Poff, N.L. et al. 2010. "The Ecological Limits of Hydrologic Alteration (ELOHA): A new framework for
developing regional environmental flow standards." Freshwater Biology 55: 147-170
PolyMet 2013i. NorthMet Project Water Modeling Data Package, Volume 1 - Mine Site, Version 12. March
8, 2013. [numbering of references corresponds to SDEIS reference list] Attachment G. Partridge
River Hydrologic Impact Assessment Results.
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1, 2013.
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need? Freshwater Biology 37, 231-249.
Richter, B.D., M.M. Davis, C. Apse, and C. Konrad. 2011. A presumptive standard for environmental flow
protection. River Res. Applic. DOI: 10.1002/rra
Verry, E.S. 2004. Land Fragmentation and Impacts to Streams and Fish in the Central and Upper
Midwest. Chapter 5. In George G. Ice and John D. Stednick, eds. A Century of Forest and Wildland
Watershed Lessons. Society of American Foresters. Bethesda, MD. pgs. 129-154.
Verry, E.S. and R.K. Kolka. 2003. Importance of wetlands to streamflow generation. Pgs. 126-132. In:
Renard, Kenneth G.;et al., eds. 1st Interagency Conference on Research in the Watersheds; 2003
October 27-30; Benson, AZ. US Department of Agriculture, Agricultural Research Service: 126-132
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Peaks in North Central Minnesota. Water Resources Bulletin, Vol. 19, No. 1, pp 59-67.
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based on stream fish community patterns. Transactions of the American Fisheries Society 132:18–
38.
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Evaluating Stream Temperature Response to Climate Change Scenarios in Wisconsin. Watershed
Management, pp. 1-12.
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and adaptation. Nelson Institute for Environmental Studies, University of Wisconsin–Madison and the
Wisconsin Department of Natural Resources, Madison. Available: www.wicci.wisc.edu. (February
2012).







50

7. Sulfates and Wild Rice


A. Wild Rice is an ecologically, economically and culturally important resource in
Minnesota that could be affected by the proposed NorthMet Project.

The SDEIS recognizes that wild rice is an important cultural and ecological resource in the
proposed NorthMet Project Area, and that wild rice could potentially be affected by project
activities as they affect water quality and hydrology.
112
In particular, sulfate releases from the
NorthMet waste rock and tailings are acknowledged as relevant to wild rice waters downstream
from both the Mine Site and Tailings Basin. In that context, the SDEIS acknowledges the need
“to demonstrate that the NorthMet Project Proposed Action would have an acceptably high
probability of not increasing sulfate concentrations in these areas.”

Minnesota has long been recognized as the center of wild rice distribution in the United States,
with more acres of natural wild rice than any other state.
113

114

115
The plant is associated with the
shallow lakes, rivers, and streams left behind by melting glaciers. Even as wild rice acreage
has declined in Minnesota, losses have been even more dramatic elsewhere in the United
States, increasing the importance of Minnesota as a center of natural wild rice abundance.
116

Estimates of the value of wild rice to Minnesota’s economy range from $5 to $12 million per year
for production value alone (based on the market price per pound).
117
Wild Rice is also basic to
the traditional diet and is important culturally and spiritually to Minnesota’s Indian tribes.

In addition to its economic and cultural significance to Minnesotans, wild rice is one of the most
important foods for waterfowl in North America, and provides food and shelter for many fish and
wildlife species, including at least 17 species identified by the state Comprehensive Wildlife
Conservation Strategy (“CWCS”) as SGCN.
118
The value of wild rice to mallards, wood ducks,

112
SDEIS 5.2.2.
113
Moyle, J. B. and P. Krueger. 1964. Wild Rice in Minnesota. The Conservation Volunteer. Nov. – Dec. pp. 30-37.
114
Hansen, D. 2008. Natural wild rice in Minnesota. A wild rice study document submitted to the Minnesota
Legislature by the Minnesota Department of Natural Resources.
115
Drotts, G. 2013. Quoted by Renee Richardson in “Celebrating Mississippi Northwoods project.” Brainerd
Dispatch 9/27/2013. http://brainerddispatch.com/news/2013-09-27/celebrating-mississippi-northwoods-
project [Accessed 02/27/2014]
116
Hansen, supra.
117
For example, U.S. Department of Agriculture, 1996. Wild Rice: An Economic Assessment of the Feasibility of
Providing Multiple Peril Crop Insurance. Economic Research Service, Office of Risk Management, Washington DC.;
also Hansen, 2008.
118
Id.
51

and ring-necked ducks is most commonly recognized, and other ducks such as black ducks,
pintail, teal, wigeon, redheads, and lesser scaup also use stands of wild rice.
119

120


In Minnesota, the Conservancy has identified wild rice as a critically important community-level
conservation target for freshwater systems in the SMF and Prairie Forest Border Ecoregions,
following the methodology developed by the Conservancy to identify ecoregional conservation
targets and priorities.
121

122


For these reasons, the Conservancy submits the following comments relevant to the potential
implications of the NorthMet project for wild rice.

B. The area affected by the NorthMet project contains waters of significance for wild rice.

In the SDEIS Chapter 4, it is noted that the MPCA recommends that six areas in this part of the
St. Louis River headwaters qualify as wild rice waters, each of which could potentially be
affected by the proposed project.
123
These six areas recommended by MPCA are Embarrass
Lake; northernmost tip of Wynne Lake (Embarrass Lake Inlet); segment of the Embarrass River
from Sabin Lake to the Highway 135 bridge; the portion of the Upper Partridge River from the
outlet of Colby Lake to its confluence with the St. Louis River; and the portion of Second Creek
from the First Creek to the confluence with the Partridge River. It has already been noted that
sulfate levels meet or exceed the wild rice standard in the waters of the affected area.

The MNDNR 2008 report to the Minnesota Legislature on wild rice included the
recommendation that the state “increase intensive natural wild rice lake management efforts
and accelerate the restoration of wild rice stands within its historic range.”
124
The Conservancy
supports this recommendation. Because of the global ecological and cultural significance of
wild rice in Minnesota and the evidence that it continues to decline as a result of a variety of
stressors, the Conservancy advocates for a process by which a wild rice designation can be
applied to waters that have restoration potential as evidenced by the historical presence of wild
rice. As with currently designated “wild rice waters” these “restoration” waters would be
required to meet Minnesota’s sulfate standard. This almost certainly would result in an
expansion of the list of “wild rice waters” recommended by MPCA above.


119
Huseby, J. T. 1997. Use of cultivated wild rice paddies and associated habitats by migrating and breeding
waterfowl in northwest Minnesota. Dissertation, University of North Dakota, Grand Forks, USA.
120
Hansen, supra.
121
Valutis, L. and R. Mullen. 2000. The Nature Conservancy’s approach to prioritizing conservation action.
Environmental Science & Policy 3(6): 341-346.
122
Anderson, M. G., S. L. Bernstein, et al. 2003. Planning methods for ecoregional targets: Matrix-forming
ecosystems. Boston, MA, Eastern Conservation Science, The Nature Conservancy.
123
NorthMet Mining Project and Land Exchange SDEIS 4.2.2.1.3.
124
Hansen, supra.
52

Recommendation: NorthMet Project area waters that have restoration potential for wild rice
should be designated as “wild rice waters” and should be required to meet Minnesota’s sulfate
standard.

C. Minnesota Tribes hold substantial legal and cultural interests in wild rice habitat in
the project area that should be recognized and protected.
Wild Rice is basic to the traditional diet and is important culturally and spiritually to Minnesota’s
Indian tribes. Minnesota state law explicitly recognizes the importance of wild rice to
Minnesota’s tribes.
125
In addition to Minnesota state law, the Treaty of 1854 between the United
States and the Chippewa of Lake Superior provides certain tribes the right to hunt and fish on
public lands and waters in the territory that was ceded by the Treaty.
126
These rights are
acknowledged in Section 1.2.2 of the SDEIS where it states “Along with the USEPA, the Bois
Forte Band of Chippewa (Bois Forte), Grand Portage Band of Lake Superior Chippewa (Grand
Portage), and Fond du Lac Band of Lake Superior Chippewa (Fond du Lac) (collectively, “the
Bands”) have been invited by the Co-lead Agencies to participate as Cooperating Agencies. The
Mine Site, Plant Site, federal lands, and non-federal lands as part of the Land Exchange
Proposed Action are all located within the 1854 Ceded Territory where the Bands reserve
usufructuary rights (i.e., for hunting, fishing, and gathering).” The 1854 Ceded Territory covers
much of the Arrowhead Region of northeastern Minnesota, including the proposed NorthMet
mine site, and most of the St. Louis River watershed. An usufructuary right is the right of an
individual or group to use and enjoy the property of another, providing that this use neither
impairs nor alters its substance.
127
In the context of PolyMet’s proposed project, it is important
to note that these legal rights might be affected by pollution and hydrologic modifications
associated with development and permitted industrial uses that impact natural resources.

As noted above, wild rice is important to Minnesota’s tribes for sustenance, cultural and spiritual
reasons. Access to and conservation of natural resources by Indigenous Peoples is considered
a human right under the United Nations Declaration on the Rights of Indigenous Peoples.
128

Therefore, continued tribal access to sustainable and healthy native wild rice is an important
issue for the Conservancy.

In the last century, wild rice waters have significantly declined in the St. Louis River watershed.
Historical records indicate that wild rice grew in every tributary of the St. Louis River in the 19
th

Century.
129
Based on the MPCA’s “short list” of existing wild rice waters in the currently
designated “affected area,” there has been a significant decline of wild rice habitat in this portion
of the St. Louis River watershed. This historic loss of habitat reinforces the need for a process
to designate waters that have potential for wild rice restoration. These waters, too, would be

125
Minn.R. 7050.0224 (2008).
126
Treaty of 1854, Article 11.
127
Black’s Law Dictionary, 514, (3
rd
ed. 1991).
128
United Nations Declaration on the Rights of Indigenous Peoples, Article 29.
129
The Wild Rice Gatherers of the Upper Lakes, Nineteenth Annual Report of the Bureau of American Ethnology to
the Secretary of the Smithsonian Institution, 1900, Pg., 1035.
53

required to meet Minnesota’s sulfate standard. In this regard, the Conservancy also
recommends that because the proposed NorthMet mine site is located at the headwaters of the
St. Louis River, that the “affected area” be expanded to include the entire St. Louis River
watershed.

Recommendation: The “affected area” considered by the SDEIS for wild rice impacts should
include the entire St. Louis River watershed.

D. The 10 mg/L sulfate standard for wild rice waters is supported by solid science.
10 mg/L limit on sulfates. Minnesota’s 10 mg/ L sulfate standard:
130
for wild rice waters is based
on peer reviewed ecological observations that, under natural conditions, wild rice is uncommon
at any level of abundance in streams, rivers, and lakes that have high sulfate concentrations.
131

132

133
The recent wild rice studies funded by MPCA provide mechanistic evidence in support of
Moyle’s early observations and thorough documentation of ecological relationships.
134

135

136

The MPCA studies provide compelling evidence and insight into the mechanism by which
sulfate levels impact wild rice. This mechanism of toxicity is not sulfate in the water column per
se, but, as with other wetland plants, via conversion to sulfides in the root zone which then
interferes with root growth, seedling survival, seed production, and possibly other functions of
wild rice plants. Sulfide impacts are most significant at the seedling, flowering, and fruiting

130
According to the SDEIS, the Co-lead Agencies will continue to rely on MPCA’s project-specific guidance on the
applicability of the wild rice standard as a relevant and appropriate water quality evaluation criterion to use in the
SDEIS.
131
Moyle, J. B. 1944a. Some chemical factors influencing the distribution of aquatic plants in Minnesota. American
Midland Naturalist 34:402-420.
132
Berndt, M. and T. Bavin. 2009. Sulfate and mercury chemistry of the St. Louis River in Northeastern Minnesota.
A Report to the Minerals Coordinating Committee.
133
Berndt, M. and T. Bavin. 2011. Sulfate and mercury cycling in five wetlands and a lake receiving sulfate from
taconite mines in Northeastern Minnesota. Final report. Minnesota Department of Natural Resources, St.
Paul, MN.
134
Johnson, N.W. 2013. Response of rooting zone geochemistry to experimental manipulation of sulfate levels in
Wild Rice mesocosms. Report submitted 12/31/2013 to MPCA as part of the sulfate standard
study. Department of Civil Engineering; University of Minnesota-Duluth.
135
Pastor, J. 2013a. Effects of enhanced sulfate and sulfide concentrations on wild rice germination and growth:
results from a hydroponics experiment. Report presented to Minnesota Pollution Control Agency. December
31, 2013. Department of Biology, University of Minnesota, Duluth.
136
Pastor, J. 2013b. Effects of enhanced sulfate concentrations on wild rice populations: results from a mesocosm
experiment. Report presented to Minnesota Pollution Control Agency. December 31, 2013. Department of
Biology, University of Minnesota, Duluth.
54

stages,
137
and are detectable at relatively low concentrations of sulfide. Sulfate reducing
bacteria thrive on dissolved organic carbon in anoxic environments, a condition that occurs in
stratified lakes below the thermocline, in most wetlands and shallow lake zones, and in beaver
dams, oxbow lakes, slow moving streams, and other off-channel habitats in rivers. Since
natural wild rice is an annual that regenerates from seeds in bottom substrates, elevated sulfide
concentrations in sediments will impact wild rice following germination during seedling growth.
Sulfide production is highest in late July and August during seed set.
138
Roots of wild rice plants
exposed to high levels of sulfate and sulfide turn back at this time because of precipitation of
iron sulfides on the root surface.
139
This coating of iron sulfide on root surfaces may inhibit
uptake of nitrogen and other nutrients which are critical for proper seed set; as a consequence,
plants grown in sediments with elevated sulfide concentrations have a smaller proportion of
filled and viable seeds and those seeds which are filled are lighter in weight, which could result
in decreased germination rates the following spring.

Increasing concentrations of sulfate are likely to increase the rate of sulfide accumulation in
sediment,
140

141
and sulfide levels in sediments can accumulate over time. The cumulative
effects of long-term sulfate enrichment at lower concentrations on sulfide levels in sediments
are unknown. More research is needed to understand whether the effects are compounded
over time.

As noted in the SDEIS in multiple sections, aquatic consumption impairments for mercury in fish
tissue span the entire length of the St. Louis River watershed, including several lakes in the
NorthMet project area. We note that fish are also an important cultural resource covered under
the 1854 Treaty, and that populations relying on subsistence fish resources are particularly
impacted by mercury impairments.
142
Sulfate-reducing bacteria are thought to be the primary
methylators of Hg in the environment, producing methylmercury (MeHg, i.e., the form of mercury
that bioaccumulates) under the same conditions that result in reduction of sulfate to sulfides.
MeHg in fish poses a severe health risk for fish-eating animals such as humans, otter, mink,
bald eagle, kingfisher, osprey, and the common loon, as well as for the fish themselves.
143
Both


137
Pastor 2013 a, b, supra. Laboratory hydroponics & outdoor container folders.
138
Johnson, N. 2013, supra. Collection and analysis of rooting zone depth profiles.
139
(Pastor 2013a,b), supra.
140
Myrbo, A. 2013. Wild Rice Sulfate Standard Field Surveys 2011, 2012, 2013: Final Report. Report submitted
12/31/2013 to MPCA as part of the sulfate standard study. LacCore/Limnological Research Center University
of Minnesota, University of Minnesota, Twin Cities.
141
(Pastor 2013 a,b), supra.
142
The effects of mercury bioaccumulation on subsistence activity are discussed in Section 5.2.10.2.6.
143
Kolka, R. K., C.P. Mitchell, J.D. Jeremiason, N.A. Hines, D.F. Grigal, D.R. Engstrom, J.K. Coleman-Wasik, E.A.
Nater, E.B. Swain, B.A. Monson, J.A. Fleck, B. Johnson, J.E. Almendinger, B.A. Branfireun, P.L. Brezonik, J.B.
Cotner. 2011. Mercury cycling in peatland watersheds. Chapter 11 in Kolka, R.K., S.D., Sebestyen, E.S. Verry,
K.N. Brooks, eds. Peatland biogeochemistry and watershed hydrology at the Marcell Experimental Forest. Boca
Raton, FL: CRC Press: 349-370.
55

experimental and ecological evidence demonstrate a positive relationship between sulfate
loading and MeHg fluxes from wetlands, peatlands, and wetland sediments.
144
The SDEIS
acknowledges not just widespread mercury impairments but also the level of uncertainty related
to understanding the relationship between sulfate, wetland cycling, and conversion of inorganic
mercury into methylmercury.
145
Based on research on formation of methylmercury in domestic
rice production, it is known that rice grain itself can bioaccumulate MeHg. Although there is no
comparable research on wild rice, it is clear that a fuller understanding of methylmercury fate
and transport is needed, and should be part of the adaptive management plan for NorthMet and
other ongoing mining operations and reclamation activities. Given the mounting evidence
demonstrating negative impacts to wild rice from relatively low levels of sulfides, the positive
correlation between levels of sulfate in water column and sulfides in sediment, combined with
the remaining uncertainties about long-term impacts and the relationship between sulfate and
methylmercury, the weight of evidence tilts against a weakening of the 10 mg/L sulfate
standard.
Recommendation: The current 10 mg/L sulfate standard for wild rice waters should remain in
effect.


E. The Nature Conservancy opposes a “seasonal standard” for sulfates for wild rice
waters.

Minnesota Rules 7050.0224, Subp.2. describes the “Sulfate (SO4)” standard “as a guide in
determining the suitability of the waters for such uses” as follows: “10 mg/L, applicable to water
used for production of wild rice during periods when the rice may be susceptible to damage by
high sulfate levels.”

Based on the existing evidence as well as new and supporting evidence from the recently
published MPCA wild rice studies, it is inappropriate to conclude that there is a significant
seasonal period when wild rice is not “susceptible to damage” by sulfate levels higher than 10
mg/L. Not only does diffusion of sulfate from the water column and into saturated sediments
continue to occur throughout the winter, bacterial reduction of sulfate to sulfide continues to
occur during cold conditions at relatively high levels. Even in the most severe winters, it would
be available as soon as temperatures reach the level to support sulfate reducing bacteria
activity in the spring. Sulfide in many slow-moving shallow streams, wetlands, and lakes also
has a long residence time. High sulfate concentrations in winter flows may be retained in
wetlands, saturated sediments, and other off-channel habitats where they will remain readily
available for conversion to sulfide in sediment when more favorable conditions are restored.
This activity begins before and continues during the time when wild rice seeds are germinating
and most vulnerable. Furthermore, ripening of natural wild rice and natural wild rice harvests

144
Jeremiason, J.D., D.R. Engstrom, E.B. Swain, E.A. Nater, B.M. Johnson, J.E. Almendinger, B.A. Monson, R.K.
Kolka. 2006. Sulfate addition increases methylmercury production in an experimental wetland. Environ Sci
Technol. 2006 Jun 15; 40(12):3800-6.
145
e.g. SDEIS Sections 5.2.2 (pp 5-8) and 5.2.2.1.2 (pp 5-20).
56

extend into the fall. In many areas of Lake, Cook and St. Louis Counties, wild rice does not fully
mature until early or mid-September. A “seasonal” standard that permitted high levels of sulfate
discharge after August 31 could adversely affect the maturation of wild rice seed, impacting both
current harvests and future natural wild rice reproduction.

Recommendation: The waters affected by the NorthMet Project should not be permitted to
seasonally exceed the sulfate standard.


F. Altered water flow regimes negatively impact wild rice.

Wild rice is vulnerable not just to sulfates, but to any factor that significantly alters water quality,
seasonal water levels, lakebed conditions, regional climate, aquatic vegetation, or the natural
genetic diversity of wild rice. Changes in local hydrology are important factors in successful wild
rice production, though poorly studied and characterized in the literature. There is a need to
further understand the amount and kinds of flow alteration to establish protective criteria for wild
rice during different stages of development. There is abundant observational evidence that wild
rice production can be negatively impacted by flashy flows and unusually large flow events,
especially those occurring early to mid-summer when the plant can be uprooted. These types
of flashy flow events are associated with loss of wetland and soil storage in headwaters due to
forest cover and peat removal, soil compaction, and increased impervious surface, as well as
the increasing frequency and intensity of rainfall events attributed to climate change. Likewise,
seeds are unlikely to survive prolonged dry conditions under conditions of drought or significant
dewatering diversions. These impacts should be evaluated in the context of cumulative impacts
to flows resulting from NorthMet as well as other activities and land use changes upstream of
wild rice waters.

Recommendation: The NorthMet project discharges and other activities in the watershed
should be monitored and evaluated for flow regime alterations that could potentially impact
downstream wild rice waters. Potential corrective actions should be explicitly specified in the
water management plan.


57

8. Cumulative Effects Assessment

A. The SDEIS needs further focus on cumulative effects analysis, especially the
geography of the affected area, future actions considered and incorporation of
climate change.

Evidence is increasing that the most devastating environmental impacts may result not from the
direct effects of particular actions, but from the combination of individually minor effects of
multiple actions over time.
146
Council on Environmental Quality (“CEQ”) regulations and
applicable case law establish that an EIS must take into account “cumulative impacts”, that is
impacts from other projects that are planned or are a foreseeable result of the proposed project.
The CEQ regulations define “Cumulative impact” as “the impact on the environment which
results from the incremental impact of the action when added to other past, present and
reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or
person undertakes such other action. Cumulative impacts can result from individually minor but
collectively significant actions taking place over a period of time.” 40 CFR § 1508.7 (2013)
(emphasis added).
Key considerations in cumulative effects assessment include defining the past, present and
future actions that are considered, and the temporal and geographic boundaries of the
analysis.
147
Because these definitions have such a significant influence on how the cumulative
effects assessment is framed--or constrained--they are a frequent focus of judicial analysis and
of the USEPA in its oversight role over environmental impact statements prepared under NEPA.
For example, “a mismatch in scale can easily lead to an erroneous conclusion regarding the
impact of management actions if one confuses the inability to measure an effect with the
absence of an effect…”
148

The approach in the NorthMet SDEIS is to use different timeframes and cumulative effects
affected areas (“CEAA”) depending on the resource being considered. This inconsistency has
the effect in some cases of narrowing the scope of the analysis such that it leads to circular
logic that precludes evaluation of the full picture of impacts. Similarly, an overly-narrow
definition of reasonably foreseeable future impacts is used in the SDEIS that eliminates
consideration of other likely mining actions. Accordingly, our comments below are focused on
future actions considered, timeframe and area affected by cumulative impacts.


146
Council on Environmental Quality, 1997. Considering Cumulative Effects under the National Environmental
Policy Act. Washington, D.C., January 1997.
147
CH2M Hill, 2011. Cumulative Effects Analysis Pursuant to the National Environmental Policy Act (NEPA),
RDD/112490010, November, 2011.
148
Ruggiero et al, 1994. Ruggiero, L. F., K. B. Aubry, S. W. Buskirk, L. J. Lyon, and W. J. Zielinski, technical editors.
The scientific basis for conserving forest carnivores: American marten, fisher, lynx, and wolverine in the Western
United States. U.S. Department of Agriculture, Forest Service, General Technical Report RM-254.
58

B. Reasonably Foreseeable Future Impacts: The Effects of Additional Mining
An EIS is not required to describe impacts from projects that are merely speculative or where
the timing and occurrence of the impacts is subject to later decisions, Great Basin Mine Watch
v. Department of Interior, No. CVN020605HDMRAM, 2004 WL 5613610, at *5 (D. Nev March
29, 2004). Nonetheless, the EIS cannot ignore impacts whose likelihood is increased by the
proposed project, especially where such impacts are foreseeable over a reasonable time
horizon. See e.g., Northern Plains Resource Council v. Surface Transp. Board, 668 F.3rd 1067
(9th Cir. 2012) (EIS must include cumulative impacts of anticipated coal bed methane
development of a 20 year period).
Here, the EIS acknowledges that the NorthMet mine is not the only mining interest within the
area, and acknowledges that the other interests are held by third parties and are subject to
future development. However, because the interests are separately held, would require
additional and separate permits, and are not yet at a similarly advanced stage to the NorthMet
proposal, the EIS does not describe in any significant detail the potential for greater and
cumulative impact if many or most of the additional mining interests were developed. However,
given the long duration of the NorthMet mine and reclamation, any such development is most
certainly likely to occur simultaneously with the NorthMet project impacts.
While the other potential projects are not yet at a fully advanced stage, the EIS cannot simply
leave to later decision-making and analysis the potential cumulative impacts. As the court held
in Northern Plains Resource Council, supra, “[P]rojects need not be finalized before they are
reasonably foreseeable. ‘NEPA requires that an EIS engage in reasonable forecasting.
Because speculation is …implicit in NEPA, we must reject any attempt by agencies to shirk their
responsibilities under NEPA by labeling any and all discussion of future environmental effects
as crystal ball inquiry.’” Id. at 1078-79 (internal citation omitted).
The Northern Plains’ Court’s analysis is particularly relevant here. First, as the EIS
acknowledges, the areas in which other holdings exist, and the likely types of development are
known and predictable. Second, and more importantly, if the NorthMet project proceeds, it will
increase the likelihood of the other projects also proceeding. The NorthMet mine will create a
significant infrastructure – rail and road transportation links, construction of processing facilities
with the capacity for extended operation and for increases in capacity at relatively lower cost,
and the availability of experienced personnel in the area. Because the NorthMet project will
initially bear the cost of creating that infrastructure, other projects will take advantage of that
infrastructure without the need for the same level of initial investment, thus reducing their overall
cost, and making other projects more likely.
Similarly, assuming the NorthMet mine is permitted as currently proposed, other operations will
take the signal that open face, deep pit mining is acceptable and accepted in the area. The
regulatory agency cannot assume that it could deny similar permits on similar terms to other
projects, unless it were able to show significant and material differences between the new
proposal and NorthMet. PolyMet thus bears an initial regulatory risk, but the grant of its permit
will increase regulatory certainty for other projects, and reduce their associated risk and cost.
59

The EIS must therefore provide some analysis of the increased impacts that could be expected
from additional mining operations within the area, especially ones that will likely come into
operation within the same period. While the current status of the other projects might prevent a
detailed analysis, the ability to develop a reasonably thorough understanding and evaluation of
cumulative risks of mining in a large watershed sufficient to inform permitting decisions is
demonstrated by the recent USEPA assessment in Bristol Bay, Alaska.
149

CEQ regulations and subsequent case law have stated that reasonably foreseeable future
actions need to be considered even if they are not specific proposals or defined projects. The
criterion for excluding future actions is whether they are “speculative.” The definition of
“speculative” is defined in the EIS, often drawing from agency guidance or precedence.
150
In the
NorthMet project SDEIS, the following is used to distinguish between Reasonably Foreseeable
Future Actions, which are included in the CEAA, and Speculative Actions, which are excluded
from the CEAA (SDEIS 6.2.1):
“Reasonably foreseeable future actions are those actions that are included in approved
planning documents and have approved funding, are permitted or have a currently active
federal or state permit or site plan application under review.”
The Conservancy believes this definition is too narrow, and excludes other nearby copper-
nickel, PGM and titanium oxide deposits now in the early stages of development. These
excluded projects include potential future actions at the nearby Teck American Mesaba deposit,
Encampment Minerals’ Serpentine deposit, Cardero Resource Corporation’s Longnose deposit
and Twin Metals’ Maturi and Birch Lake deposits. Many of these companies have active state
and federal permits or applications for drilling, exploration or testing that could be arguably be
consistent with the SDEIS definition of reasonably foreseeable future actions above.
The Twin Metals projects, in particular the proposed Maturi Mine, are particularly relevant. The
company completed a conceptual study of the Maturi project in 2011, and has been developing
a “pre-feasibility study” since that time, now scheduled to be completed in mid-2014. The
company’s own schedule for this effort indicates that baseline and preparation for the EIS began
in October, 2011 and continues today.
151
While the project is being planned as an underground
mine in the Rainy River watershed, the location of the stockpile is shown some distance away,
nearer the NorthMet project and within the St. Louis River watershed.
152
The environmental
assessments and pre-feasibility study are shown on the company web site as “steps 3 and 4” in

149
Bristol Bay Assessment, 2014. U.S. Environmental Protection Agency. An Assessment of Potential Mining
Impacts on Salmon Ecosystems of Bristol Bay, Alaska, EPA 910-R-14-001ES, Region 10, Seattle, WA, January 2014.
150
U.S. Environmental Protection Agency, 1999. Consideration of Cumulative Impacts in EPA Review of NEPA
Documents, Office of Federal Activities 2252A, May 1999.
151
Original plans for entering the permit phase were indicated as early as 2013. www.twin-metals.com/wp-
content/uploads/2011/11/Hoyt-Lakes-Public-Forum.pdf (accessed March 3, 2014)
152
Twin Metals Minnesota, 2014. Mid-Prefeasibility Study Update, Laurentian Vision Partnership, January 2014.
http://www.lvpmn.org/_site_components/documents/user/TMM%20PFS%20Update%20Laurentian%20Vision%20
Partnership%20Jan_%202014.pdf (accessed March 4, 2014)
60

the “regulatory process.”
153
We believe there is sufficient information on the intent, trajectory
and plans for the Maturi Mine that it should be included as a reasonably foreseeable future
action in the NorthMet cumulative effects assessment. Many of these companies also have
active state and federal permits for drilling or exploration that could arguably be consistent with
the SDEIS definition of reasonably foreseeable future actions above.
It is clear that operation of other mines, both new and existing, within the same period of time
would increase overall air emissions, extend the period over which such emissions would occur,
increase the burden on ground and surface waters, increase the amount of terrestrial, aquatic
and wetland habitat converted or indirectly impacted, increase traffic and the burdens
associated with operation of rail and road facilities, increase the amount of spoil to be reclaimed
and potentially increase the costs of restoration and reclamation for all facilities in the area. The
SDEIS makes no material mention of those factors and risks.
Recommendation: The cumulative effects assessment should include other nearby non-
ferrous mining developments, as well as planned expansions of taconite mining and processing
as reasonably foreseeable future actions, as detailed in our comments.

C. The St. Louis River watershed is the most appropriate affected area for cumulative
effects to water resources and ecological features.
CEQ guidance encourages cumulative effects assessments to be conducted in the scale of
human communities, landscapes, airsheds and watersheds.
154
The SDEIS uses circular logic to
confine the CEAA for water resources impacts to the relatively small watersheds of the
Embarrass and Partridge Rivers, tributaries to the St. Louis River in which the mine and
processing facility are located. The logic goes this way: because individual impacts of the
NorthMet project are deemed of minimal impact, there is no reason to consider a larger area for
cumulative impacts. However, this decision is based on assumptions that are uncertain or
inadequately evaluated
155
and hydrologic data that has recently been called into question. This
kind of circular logic has been rejected in at least one case involving a mineral exploration
project in Nevada.
156

The Conservancy believes that the full St. Louis River watershed is the appropriate CEAA for
impacts to water resources, high biodiversity sites, species, wild rice, wetlands and other critical

153
www.twin-metals.com/about-the-project/project-schedule/ (accessed March 3, 2014)
154
Council on Environmental Quality, 1997. Considering Cumulative Effects Under the National Environmental
Policy Act, Executive Office of the President, January 1997.
155
Including assumptions that treatment systems will work precisely as predicted, regulatory requirements to
remediate existing pollution problems will be completely successful and no failures or unexpected events will
occur over the 200-500-year period in which water treatment will be needed.
156
Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of the Interior, 6O8 F.3d 592 (9
th
Cir. 2010)
(Cumulative effects analysis was found to be insufficient because it assumed all direct impacts would be avoided or
mitigated and that all existing, proposed and reasonably foreseeable future activities would avoid or mitigate all
known and discovered resources)
61

habitat. The NorthMet project site is part of the Sand Lake-Seven Beavers conservation
landscape, also known as the Headwaters Site because of its position at the headwaters of the
St. Louis River. As such the environmental consequences of the NorthMet Project have an
outsized influence on the St. Louis River watershed as a whole. The Cooperating tribal
agencies make a strong case for this in the SDEIS (SDEIS Section 8.3 and Appendix C),
focusing on the cumulative impacts of water pollutants that already exceed water quality
standards or health risk limits in the Embarrass and Partridge Rivers, including sulfate, mercury,
manganese, aluminum and arsenic, all priority pollutants. Currently, sulfate and mercury
concentrations in the St. Louis River are being diluted by flows from the less mining-impacted
portions of the St. Louis River headwaters. If flows are reduced from the NorthMet mine or if
future mines are permitted, the cumulative probabilities of excedences will likely increase.
157
All
NorthMet Project area waters are also designated Outstanding International Resource Waters
158

which prohibits any new or expanded point source discharges of bioaccumulative substances of
immediate concern (i.e., mercury) unless a non-degradation demonstration is completed and
approved by the MPCA.
159

Wetlands losses in the St. Louis River watershed have already been significant, and the impacts
of nearly 1000 acres of additional wetland loss from the NorthMet project greatly magnify the
scale of loss, especially when combined with historic and reasonably foreseeable future
losses.
160
The Fond du Lac Environmental Department
161
notes that in the Stoney Brook
Watershed alone, between 2000-4000 acres of wetlands have been lost, and wetlands, wild
rice, stream and lake systems have all been significantly impacted by construction of 47 miles of
manmade ditches. The MNDNR 1:24000 scale hydrography layer shows that much of the St.
Louis River watershed has been subject to artificial ditching. Most of this ditching occurred in
the twentieth century in an attempt to drain wet forest to facilitate forestry and farming. Mining
impacts to wetlands have also been significant in the headwaters along the Iron Range.
According to the Cooperating Agencies, “there are 1,387,630 acres of wetlands in the St. Louis
River watershed, with 1732 individual wetlands impacted by ditching, totaling 198,989 acres.
Ditching has thus occurred in 14.3% of the wetlands in the watershed. Approximately 50% of
the sub-watersheds have had some degree of impact from ditching, while some have
experienced ditching in nearly 100% of their wetlands.” (SDEIS, Appendix C). Yet the SDEIS
actually uses a smaller CEAA for wetland loss in the cumulative effects analysis than it does in
the assessment of direct impacts to and mitigation for wetland loss from the NorthMet project
alone: the CEAA is confined to the Embarrass and Partridge Rivers while the entire St. Louis

157
Berndt, M. and T. Bavin, 2009. Sulfate and Mercury chemistry of the St. Louis River in Northeastern Minnesota.
A Report to the Minerals Coordinating Committee.
158
Minn. R. 7050.0460and 7052.0300 (2009).
159
Minn. Rules 7052.0300 and 7052.0350 (2005)
160
From the SDEIS, Appendix C: “It is reasonably foreseeable that an additional 3000 acres of wetlands within the
watershed will be directly impacted by proposed new mining projects and expansions that are in active
permitting and/or environmental review: the PolyMet NorthMet project, Mesabi Nugget Phase II, US Steel Minntac
expansion, US Steel Keetac expansion, United Taconite Tailings Basin 3 construction. To date, virtually all required
wetland mitigation for mining impacts has been implemented out of the basin, representing a permanent loss of
high quality ecological resources and functions.
161
Lakes & Streams, http://www.fdlrez.com/newnr/environ/waterlakestream.htm (Accessed 2/27/2014)
62

River watershed is appropriately considered for direct impacts to wetlands and mitigation.
SDEIS 5.2.3.
Substantial evidence can be found in the scientific literature that loss of wetlands, especially
when combined with extensive ditching, can cause profound changes in the hydrology of the
watershed where the loss occurred. Effects such as increased “flashiness,” longer dry spells
and larger and more frequent flooding are commonly reported in the literature as a result of
extensive wetland loss. Wetland loss of the magnitude (~15%) that has occurred in the St.
Louis River watershed and which will continue to occur as the NorthMet and other projects are
developed, has been estimated to increase flood peaks by 10% in similar hydro-geomorphic
settings, exacerbating flooding and destabilizing water supplies.
162
As described in our
comments on water flows and levels, loss of forested wetland habitat also has effects on the
temperature of stream and riparian habitat that can have important implications for sensitive
species such as moose. When considered cumulatively with the loss of wetland function in the
Partridge and Embarrass watersheds and the effects of climate change, such impacts can have
profound impacts on the survival of vulnerable species. The SDEIS does not evaluate the
effects of loss of such green infrastructure on hydrology, stream temperature or other watershed
functions. As stated in the SDEIS Appendix C, “when all impacts to water quality, aquatic
communities, wetlands and hydrology are considered in a comprehensive manner, the
cumulative effects on water resources are extensive.”
Likewise, the Cooperating Agencies make a strong case that wild rice was formerly extensive in
both the Embarrass and Partridge Rivers and that it exists in a degraded condition in those
watersheds today, a condition likely exacerbated by chronic high levels of sulfate that exceed
the water quality standard for wild rice waters.
163
(SDEIS Appendix C). The ecological
importance of wild rice to waterfowl and numerous other species of wildlife is well
documented.
164
Many of these species are mobile and not confined to small watersheds such
as the Embarrass and Partridge, so degradation of wild rice and other resources in the vicinity
of the NorthMet project may have implications for habitat availability across the larger St. Louis
River watershed and adjacent basins.
The Conservancy believes that the cumulative effects analysis should focus on the amount of
habitat of different types, including lowland conifer wetlands and wild rice, which occur across
an ecologically meaningful region such as the St. Louis River watershed or the Sand Lake-
Seven Beavers landscape, and determine how all past, present and reasonably foreseeable

162
Ahmed, F., 2014. Cumulative Hydrologic Impact of Wetland Loss: Numerical Modeling Study of the Rideau River
Watershed, Canada. Journal of Hydrologic Engineering, Vol. 19: 593-606, American Society of Civil Engineers,
March 2014.
163
Sulfate-impaired wild rice waters will be included on the state’s impaired waters list for the first time in 2014,
likely during the period in which the Final NorthMet project EIS will be prepared. In the SDEIS, the Cooperating
Agencies make a strong case for designating the Embarrass and Partridge Rivers and several of their tributaries as
Wild Rice Waters, based on historic extent. The Conservancy supports this designation and believes that unabated
high levels of sulfate in these streams has limited growth and contributed to degradation of wild rice resources
there.
164
See, e.g. Hansen, 2008. Natural Wild Rice in Minnesota: A Wild Rice Study document submitted to the
Minnesota Legislature by the Minnesota Department of Natural Resources, February 15, 2008.
63

future projects cumulatively modify habitat availability. Then it should estimate how the
remaining habitat conditions compare to the needs for well distributed, viable populations of
species that depend on the habitat. A similar analysis should be completed for watershed
functions, first determining how projects, including NorthMet, have cumulatively modified
important hydrologic functions, then comparing the results of the analysis to an assessment of
needs.
165
The Conservancy believes the proper scale of these analyses, and thus for the
CEAA, is the St. Louis River watershed, which encompasses the area where cumulative effects
on wetlands, wild rice and water resources are most relevant, contains both the Sand Lake-
Seven Beavers and Headwaters Site conservation landscapes and a portion of the Hundred
Mile Swamp, as well as the majority of northern Minnesota’s industrial mining district.
Importantly, the St. Louis River watershed is also the heart of wild rice cultural and subsistence
use and the region of highest density of remaining wild rice in the 1854 Ceded Territory (SDEIS,
Appendix C).
Recommendation: The cumulative effects assessment should use the entire St. Louis River
watershed as the cumulative effects affected area for impacts to water resources, high
biodiversity sites, species, wild rice, and wetlands.
Recommendation: The cumulative effects assessment should include an analysis of how all
projects have cumulatively modified habitat availability and compare this with habitat needs of
dependent species using a population viability analysis approach
D. Climate change will exacerbate impacts to the environment caused by mining, and its
effects should be evaluated cumulatively with the NorthMet project and other
reasonably foreseeable future actions.
Climate change is discussed in the SDEIS largely from the perspective of greenhouse gas
emissions and focuses on whether the NorthMet project individually or cumulatively contributes
to significantly greater emissions. Several short paragraphs on other effects of climate change
are included in a discussion of the No-Action Alternative that offer vague references to
analyzing the effects of climate change on water quality and quantity by “conducting a sensitivity
analysis” with hydrologic models. (SDEIS 5.2.2.3). There is also a very generic discussion in
section 5.2 of climate change effects on the affected environment that includes short statements
about predicted changes in precipitation, temperature, evapo-transpiration and other factors and
different scenarios of land cover change. Overall, however, the SDIES appears to take the
perspective that climate change effects are so uncertain or imprecise they cannot be
incorporated into the assessment in any meaningful way.
The Conservancy believes that climate change effects are occurring now, are relevant over the
operational and post-closure timeframe of the NorthMet project and should be incorporated into
the cumulative effects assessment. Further, the Conservancy believes that by not doing so, the
cumulative effects assessment fails the “hard look” test that insists upon a thorough analysis of
likely environmental risks and consequences, rather than general conclusions based on

165
Miller, N, J. Wagner and T. Bernthal, 2013. An Ecosystem Service-Based Watershed Approach to Wetland
Conservation in the Great Lakes Basin. National Wetlands Newsletter, Vol. 35, No. 1:14-29.
64

judgment. The SDEIS acknowledges that climate change will have profound effects on
elements of the environment also affected by mining. For example, predictions of a 10-15%
increase in annual precipitation in the Great Lakes region over the next 70-90 years, 20-25%
increase in winter and spring precipitation and an increase in the frequency and intensity of
summer rainfall events are well known and confirmed by the majority of climate models.
(SDEIS, 5.7.2.2.4) Such changes would compound hydrologic alteration caused by NorthMet
and other projects and are readily incorporated into continuous simulation models of hydrology
and water quality so that cumulative effects can be assessed. Higher average annual
temperatures, more frequent drought and increased summer evapo-transpiration rates have
predictable consequences on water levels and streamflows that should likewise be assessed
cumulatively with other sources of hydrologic alteration. In turn, changes in temperature,
precipitation and hydrology will affect land cover and availability of habitat, elements of the
environment also affected by mining. Sophisticated models are now available to assess forest
cover and species composition as a result of different climate change and management
scenarios.
166
The SDEIS acknowledges potential reductions in forest cover of 50-70% as a
result of climate change, with conversion to grassland/savanna under drier conditions and to
hardwood forest if wetter conditions prevail. Either scenario would have significant implications
for sensitive habitat such as lowland conifer wetlands and vulnerable species such as moose,
both of which which will be under greater pressure throughout their range. These effects would
not be captured in analyses that assume that historic climate will prevail.
While the NorthMet Project is likely to contribute only marginally to making climate change
worse, we believe climate change is an example of an environmental trend that is likely to
exacerbate many of the direct effects identified in the SDEIS and should be incorporated into
the cumulative effects analysis along with other reasonably foreseeable future actions.
167
A
deeper analysis of climate change effects is certainly warranted given the implications on rare
habitats and species. While acknowledging the uncertainty inherent in climate change
predictions, the SDEIS fails to demonstrate how that uncertainty will be mitigated or whether
freeboard, margins of safety and excess water storage and treatment capacity are adequate
over the 20-year period of mine operation, much less the 200 to 500-year post closure period
during which treatment may be required. We believe the issue of uncertainty in climate change
effects can be dealt with effectively using several different change scenarios for evaluating
cumulative impacts, for example a “wet scenario” and a “dry scenario.”
Recommendation: The cumulative effects analysis should incorporate climate change effects
on sensitive habitat, species and water resources.

166
For example, Ravenscroft, C.R., R.M Scheller, D.J. Mladenhoff, M.A. White, 2010. Simulating forest restoration
in a mixed ownership landscape under climate change. Ecological Applications 20: 327-346.
167
CH2M Hill in a guidance document on preparing cumulative effects analyses under NEPA encourages that
“sources of actions that may contribute to cumulative effects need to be considered” and uses climate change as
an example where the “number of contributors is extensive and their specific identifies unimportant for the
evaluation of project contributions.” Principle 6, CH2M Hill, Cumulative Effects Analysis Pursuant to the National
Environmental Policy Act (NEPA), RDD/112490010, November, 2011.
65

Recommendation: The SDEIS should demonstrate how climate uncertainty will be mitigated in
the project design and operations, identifying the specific mitigating measures employed.

E. A regional assessment of the impacts of mining in the St. Louis and Rainy River
watersheds is needed to develop a better understanding of cumulative benefits and
risks.
Given the need to understand regional and cumulative impacts at the scale of watersheds,
landscapes and human communities, the Conservancy believes a regional assessment is
warranted before additional mining development occurs. Such an assessment could be
accomplished through various processes and authorities, but the federal PEIS (under NEPA
168
)
and the state GEIS (under Minnesota Environmental Policy Act [“MEPA”]
169
) are both intended
for this purpose and have a proven track record of effectiveness. A GEIS is generally one which
discusses a series of related actions in a single document; a PEIS addresses in general terms
the environmental effects of long-term, multistep programs. Mining in the St. Louis and/or Rainy
River basins satisfies both criteria, being both a series of related state and federal actions and a
long-term, multiple-step process that has cumulative environmental consequences across a
large region. Examples of federal programmatic impact assessments underway or recently
completed include solar energy development on federal lands in the Basin and Range states,
wind energy development in the western U.S., mountaintop mining fills in Appalachia, the I-70
mountain corridor in Colorado and oil shale and tar sands development in eastern Utah.
Minnesota’s GEIS process has been used more sparingly, but to beneficial effect, for example
for timber harvesting and forest management, a process that led to the creation of the MFRC,
considered a model for environmentally responsible forest management, and more recently for
confined animal feeding operations. The USEPA also has broad authority to conduct a regional
environmental assessment under the Clean Water Act, which it has utilized to conduct the
regional assessment of mining in Bristol Bay, Alaska.
170

A regional assessment implemented as a PEIS or GEIS could also take advantage of the
“tiering” of assessments anticipated by NEPA and MEPA. A tiered review consists of two
distinct steps: a regional Tier 1 review involving broad analysis of relevant environmental
conditions in the target area, often a watershed, landscape or region, and Tier 2, project-
specific analysis much like the NorthMet SDEIS. The Tier 1 review also provides structure for
the Tier 2 review by establishing guidance and constraints for project-specific environmental
assessment and permitting.
The Conservancy understands it is difficult to conduct a thorough regional assessment in the
context of a project-specific EIS, but also feels that in absence of a tier-1 regional assessment,
a meaningful evaluation of the impact of expanded mining on our water and land resources and
human communities will be elusive and important environmental consequences may be

168
40 CFR §1508.28 (2013)
169
Minnesota Rule 4410.3800 (2009)
170
Bristol Bay Assessment, 2014.
66

overlooked. The USEPA’s Bristol Bay assessment demonstrates that a meaningful
understanding of regional and cumulative impacts can be obtained in advance of detailed site
plans, project designs or permit applications. As part of such an assessment, different regional
mining development and mitigation scenarios
171
can be evaluated, without the need to resort to
constructs such as “reasonably foreseeable future actions” and their inherent uncertainties and
controversy. Climate change and population growth scenarios can also be readily developed
and evaluated. The Conservancy has developed approaches for scenario development,
prediction of risks and evaluation of mitigation alternatives that have been used in energy and
minerals development settings across the globe. This approach has been used in gas field
development in Wyoming and other oil and gas development initiatives in the western U.S.,
mining and energy development in the grasslands of Mongolia and mitigation for coal mining in
the Cesar region of Colombia.
172

Following the structure set forth in the Bristol Bay, Alaska study, the essential elements of a
regional assessment for mining in northeastern Minnesota would include:
 Clear definition of geographic boundaries of the assessment, which for expanded mining in
Minnesota would appropriately include the St. Louis River and Rainy River watersheds.
 An understanding of the ecological, water, cultural, and industrial resources and their uses
within the region, including use and access rights of the Ojibwe Bands within the 1854
ceded territory.
 Development of prospective mining development scenarios under different climate change
assumptions
 An assessment of risks to environmental resources and human communities under the
different scenarios, with special attention to wetlands, water resources and aquatic habitat
and their use
 An evaluation of potential failure modes inherent in mining operation, closure and post-
closure, along with their relative probabilities and likely consequences
 An assessment of cumulative risks of multiple mines, including expanded taconite mining
 Evaluation of viable mitigation and remediation options, including in-basin wetland mitigation
 Evaluation of the uncertainties in both mine operation and impact assessment
 Guidance for project-specific environmental assessment and permitting, including policy
changes needed and environmental risks that require special attention and deeper analysis.

Recommendation: The state and federal government should conduct a “tier 1” regional
environmental assessment using a PEIS or GEIS model before significant additional mining
development occurs.

171
For example assuming different combinations of known non-ferrous deposits and expanded taconite facilities
are developed
172
http://www.nature.org/ourinitiatives/urgentissues/smart-development/index.htm
(accessed March 4, 2014)
67

Recommendation: The regional environmental assessment should focus on the St. Louis and
Rainy River watersheds and be structured similar to the USEPA’s Bristol Bay, Alaska
assessment and include the nine essential elements of that study.

68



9. Comparison of Alternatives

NEPA and MEPA require a consideration of a range of alternatives to the proposed project,
including the “no action” alternative, as an essential element of environmental review. The
SDEIS provides no alternatives for comparison with the current proposal other than “no action.”
All previously-considered alternatives were taken out of consideration for economic reasons or
have been incorporated into the project. Decision-makers are thus left with a “take it or leave it”
proposal rather than a range of alternatives for meaningful evaluation.

A. NEPA and MEPA require that an EIS examine alternatives to the proposed project.

A purpose of NEPA is to protect, restore or enhance the environment through informed federal
decisions. Custer County Action Assoc. v. Garvey, 256 F.3d 1024, 2034-35 (10th Cir.2001).
NEPA requires that a “detailed statement” of the environmental impacts of a proposed action be
prepared in advance of certain decisions in furtherance of this purpose. 42 USC § 4332(C)
(2013). A “range of alternatives” must be rigorously explored, evaluated and compared as an
essential element of the decision-making process. 40 CFR §1502.14 (2013). Friends of the
Boundary Waters Wilderness v. Dombeck, 164 F. 3d 1115 (8
th
Cir. 1999); Natural Resources
Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972); Florida Wildlife Federation v.
U.S. Army Corps of Engineers, 401 F. Supp. 2d 1298 (S.D. Fla. 2005). The comparison of the
environmental impacts of the proposed action with the alternatives is "the heart of the
environmental impact statement.” 40 CFR §1502.14 (2013).

MEPA, Minn. Stat. §116D, similarly requires that an EIS “compare the potentially significant
impacts of the proposal with those of other reasonable alternatives to the proposed project.”
Minn. R. 4410.2300.G (2009). The environmental review process for the NorthMet mine
considered and incorporated some variations and improvements in technology and design from
the initial proposal. However, due to a dominant focus on economic considerations and the
narrow framing of the “Purpose and Need” of the project, alternatives are absent from the
current SDEIS. The SDEIS fails to include alternatives for comparison with the proposed
project.

Minn. R. 4410.2300.G requires that an EIS consider at least one alternative from each of the
following categories in addition to the “no action” alternative: alternative sites; alternative
technologies; modified designs or layouts; modified scale or magnitude; and alternatives
incorporating reasonable mitigation measures. The SDEIS addresses the proposed connected
action of a land exchange of 6,650 acres of land with the USFS. The high biodiversity
significance of the land that would leave public ownership and protection is discussed
elsewhere in these comments. This SDEIS “alternative” relates only to the Proposed
Connected Action, the land exchange, and not to the mine plan. The alternative puts forth the
possibility of a smaller, 4900.7 acre land exchange. As noted elsewhere in these comments,
this alternative has no environmental benefits and would seriously compromise the integrity of
lands remaining in federal ownership around the NorthMet site. This Connected Action
alternative does not change the mine site scale, design, technology or damaging effects, and is
thus not a meaningful alternative to the project.

The SDEIS fails to meet the requirement of identifying and comparing other means by which to
achieve the project.
69


Recommendation: The SDEIS should be supplemented to include at least one alternative
from each of the following categories: alternative sites; alternative technologies; modified
designs or layouts; modified scale or magnitude; and alternatives incorporating reasonable
mitigation measures.


B. Alternatives have been inappropriately excluded from the SDEIS.

MEPA prohibits state action, including issuance of a permit, for activities “significantly affecting
the quality of the environment” so long as there is a feasible and prudent alternative. Minn.
Stat. § 116D.04 subd. 6 (2013). It specifically mandates that “Economic considerations alone
shall not justify such conduct.” (Emphasis added.) Id. Yet both the underground mine
alternative and the west pit backfill were excluded as alternatives for economic considerations.

An underground mine offers very substantial environmental benefits:

An underground mine, within the proposed open pit boundary (shell), would result in a
smaller surface footprint, thus offering environmental benefits over the NorthMet Project
Proposed Action through reduced effects on wetlands, vegetation, and wildlife habitat.
An underground mine would also have lower production rates compared to the proposed
open pit, resulting in less fugitive air emissions, and less waste rock and processing
waste (tailings and hydrometallurgical residue), thus reducing the scale and duration of
potential water quality effects. (SDEIS, 3.2.3.4.1).

The underground mine alternative addresses the perpetual water treatment problem by creating
fewer effects on surface and groundwater. The wetland complex of high biodiversity
significance would essentially be left intact. The reduced mine dewatering results in less
contaminated water to be managed. Less ore mined and the slower rate of mining results in
fewer effects on surface water and groundwater. Underground Mining Alternative Assessment,
Co-Lead Agencies 2013, p. 3.

The underground alternative was not fully evaluated because PolyMet refused to pursue it:

A detailed underground mine plan was not developed because PolyMet Mining
Corporation (PolyMet) made the business decision to eliminate underground mining as a
possible mining method at the NorthMet Deposit based on information that indicated it
would not be economically feasible. Therefore, it was not possible to undertake a
quantitative, side-by-side assessment of the underground mining alternative. Id., p. 1

Instead, the Co-lead Agencies conducted “a semi-qualitative screening analysis of the
alternative.” Id. The Co-lead Agencies found that the underground mining alternative is
technically feasible, available, and would offer significant environmental benefits, but eliminated
the alternative as not economically feasible and not meeting the Purpose and Need.
Id. p. 8.

NEPA requires that the agency evaluating the proposed action verify the accuracy of
information supplied by the applicant. 40 C.F.R. §1506.5(a) (2013); Utahns for Better
Transportation v. United States Department of Transportation, 305 F.3d 1152,1165 (10
th
Cir.
2002). Information provided by the PolyMet concluded that there is “no prospect” of
economically viable extraction of a portion of the deposit through the underground mine
70

alternative given the values of metals per ton of rock, using metal prices defined in 2012. (Foth
2012). The Co-lead agencies appear to have adopted this conclusion of the project proposer
without independent verification.

However, as addressed in the Financial Assurance section of these comments, neither PolyMet
nor the Co-lead agencies described the probabilities and consequences of nonferrous mine
reclamation failures that would occur over the long term, and an evaluation of the related costs
is totally absent in the SDEIS.

The evaluation process for both the underground mine alternative and the west pit backfill
alternative results in elimination of those alternatives for economic reasons in violation of Minn.
Stat. § 116D.04 (2013). For another discussion of these concerns see SDEIS, Table 8-1. While
the EIS need not be exhaustive, "[t]he existence of a viable but unexamined alternative renders
an environmental impact statement inadequate." Dubois v. United States Dep’t of Agric., 102
F.3d 1273, 1287 (1
st
Cir. 1996).

Recommendation: The underground mine alternative and the west pit backfill alternative
should be evaluated with more than a screening level analysis, and the accuracy of information
provided by the project proposer should be independently verified.


C. The Purpose and Need Statement focuses on private economic objectives.

By defining the “purpose and need of the project” narrowly, the SDEIS readily eliminates
alternatives as not fulfilling the purpose and need of the project. An agency cannot define its
objectives in unreasonably narrow terms. City of Carmel-By-The-Sea v. United States Dep’t of
Transp., 123 F.3d 1142, 1155 (9
th
Cir. 1997). “An agency may not define the objectives of its
action in terms so unreasonably narrow that only one alternative from among the
environmentally benign ones in the agency’s power would accomplish the goals of the agency’s
action, and the EIS would become a foreordained formality.” Friends of Southeast’s Future v.
Morrison, 153 F. 3d 1059, 1066 (9
th
Cir. 1998).

PolyMet’s Purpose and Need Statement reads in part: “…to exercise PolyMet’s mineral lease
to continuously mine, via open pit methods, the known ore deposits (NorthMet Deposit)
containing copper, nickel, cobalt, and platinum group element to produce base and precious
metal precipitates and flotation concentrates by uninterrupted utilization of the former LTV Steel
Mining Company (LTVSMC) processing plant….The need for the NorthMet Project is driven by
domestic and global demand of these products.” (SDEIS, 1.3.1).

The USACE and MNDNR frame the Purpose and Need for the NorthMet project as follows:

“The Purpose and Need of the Proposed Action is to produce base and precious metals
precipitates and flotation concentrates from ore mined at the NorthMet Deposit by uninterrupted
operation of the former LTVSMC processing plant. The processed resources would help meet
domestic and global demand by sale of these products to domestic and world markets.”
(SDEIS, 1.3.2.3 and 1.3.2.4).

Even the broader Co-lead Agencies’ Purpose and Need statement at SDEIS Section 1.3.2.1
allows economy to trump environment: “To extract metals in a safe, environmentally
responsible, energy–efficient, and economically feasible manner subject to mitigation measures
designed to avoid or minimize environmental effect to the extent practicable.”
71


By framing the Purpose and Need and related analysis in terms of production and markets, and
excluding alternatives that might currently be unprofitable in a volatile minerals market, the
evaluation is driven by today’s private economic considerations. The Ninth Circuit Court of
Appeals struck down the Bureau of Land Management’s “near-wholesale adoption of a private
party’s interests in defining alternatives.” Nat’l Parks & Conservation Ass’n v. Bureau of Land
Mgmt., 606 F.3d 1058 (9
th
Cir. 2010). The Court found that the agency’s reliance on objectives
such as providing a long-term income source from a landfill and finding a use for mine
byproducts on the developer’s land to be impermissibly framed to benefit the developer.

Recommendation: The Purpose and Need statement and analysis should fully encompass
long-term and watershed-wide environmental benefits and costs in addition to private economic
considerations.

Minn. R. 4410.2800 (2009) provides, in part, that the final EIS shall be determined adequate if it
“addresses the potentially significant issues and alternatives raised in scoping so that all
significant issues for which information can be reasonably obtained have been analyzed in
conformance with part 4410.2300, items G and H.” Id. The SDEIS fails to include and fully
evaluate alternatives.



72



10. Financial Assurance

A. The Purpose of NEPA and MEPA require that Financial Assurance be Considered at
the EIS Stage and Not Await the Permit to Mine Decision

The SDEIS acknowledges that significant environmental impacts, some requiring treatment
effectively in perpetuity, will occur from the Project, and that financial assurance is required to
cover the full cost of reclamation.
173
However, the SDEIS states that engineering design
calculations regarding the cost of reclamation were “not available at the time that this SDEIS
was prepared,” and suggests, though does not commit, that such calculations would be made
available during the permitting process.
174
Without a detailed description of financial assurance
that fully covers treatment, replacement, and maintenance costs in perpetuity, the
environmental impacts of the proposed alternative would be far more significant than has been
analyzed in the SDEIS. Thus, for the SDEIS to serve as an adequate disclosure and
examination of the proposed alternative, it must provide a thorough documentation of the cost
estimates underlying the financial assurance, a high degree of assurance that all contingencies
that may occur during the perpetual treatment, replacement, and maintenance are fully covered
by the proposed financial assurance, and a mechanism of financial assurance that will remain
effective and fully payable in perpetuity.

The purpose of NEPA is to require agencies to consider environmentally significant aspects of a
proposed action.
175
The goal is informed decision making and informed public comment.
176

MEPA requires that whenever practical, information needed by a governmental unit for making
final decisions on permits (such as a permit to mine) for a proposed project “shall be developed
in conjunction with the preparation of an environmental impact statement.”
177
MEPA specifically
requires the state to use all practicable means to improve and coordinate state programs and
resources (presumably including development of an EIS) to provide “for reclamation of mined
lands and assure that any mining is accomplished in a manner compatible with environmental
protection.”
178


PolyMet’s ability to fully fund reclamation and ensure that taxpayers will not be required to pay
for cleanup very directly affects the environmental impact of the Project. Simply put, if there

173
SDEIS, Section 3.2.2.4.
174
Id.
175
Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S. Ct. 2246, 76 L.Ed.2d 437
(1983); Sierra Club v. United States Dep't of Energy, 287 F.3d 1256, 1262 (10th Cir. 2002).
176
See Custer County Action Assoc. v. Garvey, 256 F.3d 1024, 1036, 1040 (10th Cir.2001). The DNR has indicated
recently that it will open up the permit to mine process for public comment. “Financial Assurance and PolyMet,”
Hearing, House Environment, Natural Resources and Agriculture Finance Committee, 2/11/13 (statement of Jess
Hamilton). However, the administrative rule governing the permit to mine does not require the Commissioner to
consider public comment and in fact significantly limits the class of persons with official legal standing to object to
a permit to mine and the issues that can be considered by the Commissioner at a hearing. See Minn. R. 6132.4000,
subp. 2 (2013). Regardless of the process undertaken by the DNR, the adequacy of funding to reclaim a project
with the environmental significance of the NorthMet project requires that detailed financial assurance
commitment be part of the NorthMet project as set forth in the SDEIS or else the SDEIS must analyze the
environmental impacts of the proposal without adequate financial assurances in place.
177
Minn. Stat § 116D.04, subd. 2a(g) (2012).
178
Minn. Stat. § 116D.02 (2012).
73

are no or inadequate funds for reclamation, it is much less likely that reclamation will be
timely and adequate and more likely that land and water resources will be directly
adversely affected. Therefore, financial assurance must be fully considered as part of the EIS
process, and not deferred to the mine permit application.

The USEPA recognizes the enormous significance of financial assurance to hard rock mining
impacts, identifying this topic as the agency’s highest priority for new rulemaking.
179
In the
absence of these rules, USEPA Region 10 has issued Guidelines stating:

[A] key component to determining the environmental impacts of a mine is the
effectiveness of closure and reclamation activities. The amount and viability of
financial assurance are critical factors in determining the effectiveness of
reclamation and closure activities and, therefore, the significance of the
environmental impacts. This is particularly important when long-term water
management and treatment will be needed.
180


Where, as here, long term water management and treatment will be required effectively in
perpetuity, it is critical that the drafting agencies fully consider financial assurance as part of the
EIS process and solicit and obtain public comment on fully developed financial assurance
information and analysis.

The information and data provided in the EIS should not presuppose mine permit approval with
adequate financial assurances. Where, as here, the duration and attendant cost of reclamation
is a critical, much publicized and commented-on component of the project, the agencies are
obligated to provide detailed cost estimates and a description of financial assurance.
181


The SDEIS identifies only in the broadest categories the types of activities that financial
assurance must cover, and states that compensatory wetland mitigation will not need financial
assurance and/or could be considered by the USACE “when additional detail has been
provided.”
182


As such, the agencies have failed to provide required information in the SDEIS that would
quantify impacts and the cost of mitigation and reclamation measures, and thus fail to both
inform their own decision process and to provide information necessary for the public’s
involvement.
183
An EIS must describe the mitigation – and attendant costs -- in sufficient detail

179
“Identification of Priority Classes of Facilities for Development of CERCLA Section 108(b) Financial Responsibility
Requirements.” 74 Fed. Reg. E9-16819 (July 28, 2009).
180
EPA Region 10 Mining Team, Region 10 Mining Financial Assurance Strategy (2009) (available at:
http://yosemite.epa.gov/R10/ECOCOMM.NSF/b8b7c39a103a235088256c3e007a4dd9/74d70c3512661df9882574
02006d039a/$FILE/R10%20Mining%20Financial%20Assurance%20Strategy.pdf (accessed 2/26/2014) (emphasis
added); see also, USEPA, National Hardrock Mining Framework, p. 9 (Sept 1997) (available at:
http://www.epa.gov/aml/policy/hardrock.pdf (accessed 2/26/2014)) (“EPA should evaluate the adequacy of EISs
for mining operations in predicting the long-term environmental impacts of mining operations. Assessment of
financial assurance mechanisms that will be utilized to provide funding of required long term environmental
management systems is critical to this analysis.”)
181
See, e.g., Utahns for Better Transportation v. US Department of Transportation, 305 F.3d 1152 (10
th
Cir. 2002)
(requiring cost information “is more than a technical requirement when it comes to the cost of the project and
alternatives,” and holding EIS inadequate to meet NEPA goals of informed decision making and public comment.)
182
SDEIS, Section 3.2.2.4.
183
See Northern Plains Resource Council v. Surface Transportation Bd, 668 F.3d 1067, 1085 (9
th
Cir. 2012).
74

to be sure that the consequences of the project have been fairly evaluated.
184
Here, the EIS
does not assign costs to the impacts, does not assign specific costs to the reclamation
measures that are described, does not specify the time frame during which financial assurance
must be effective, and does not identify and evaluate the efficacy of a financial assurance
mechanism which must be effective essentially in perpetuity. Without clearly defining the
impacts that would occur without reclamation, the agencies fail to give proper consideration to
the impacts that would occur in the event reclamation fails, or is incomplete, or financial
assurance fails, or is incomplete.

The failure of public agencies to require adequate financial assurance from hard rock mining
operations, leaving the public with monumental unfunded reclamation liabilities, is well-
documented.
185
According to the Court in Morton, supra, NEPA was intended as:

a directive as to environmental impact statements that was meant to implement
the Congressional objectives of Government coordination, a comprehensive
approach to environmental management, and a determination to face problems
of pollution "while they are still of manageable proportions and while alternative
solutions are still available" rather than persist in environmental decision-making
wherein "policy is established by default and inaction" and environmental
decisions "continue to be made in small but steady increments" that perpetuate
the mistakes of the past without being dealt with until "they reach crisis
proportions."
186


Unfunded or inadequate mining reclamation can fairly be characterized as having reached crisis
proportion across the United States, and a complete description and analysis of financial
assurance in the NorthMet EIS is necessary to avoid making this particular mistake of the past.

The significant prospect of unfunded reclamation liabilities associated with the Project, with its
attendant significant, long term impacts on the lands and waters, requires that the final EIS
provide substantial additional information regarding the cost of reclamation, the cost of failure of
reclamation, and how PolyMet will ensure adequate funds are available for both reclamation
and for contingencies associated with reclamation in the EIS process. Accordingly, the
Conservancy recommends that the drafting agencies develop adequate information on this
critical issue as part of the EIS process, seek public comment on it, and not defer consideration
to the permit to mine process.

Recommendation: The final EIS should be supplemented to include a detailed description and
dollar estimate of costs of each component of reclamation to be secured by financial assurance
from PolyMet and an opportunity for public comment should be provided on this essential
supplementary analysis.


184
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351-52 (1989); Natural Resources Defense Council,
Inc. v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972).
185
See, e.g., Kuipers, Jim, “Putting a Price on Pollution; Financial Assurance for Mine Reclamation and Closure”
(Mineral Policy Center, March 2003) (noting that in 2003, the un-bonded cleanup liability at mines ranged from $1
billion to $12 billion and that on average, the cost of reclamation by government agencies is underestimated by
50%. (pp. 27, 39)).
186
Morton, 458 F.2d at 836 (quoting S.Rep.No.91-296, 91st Cong., 1st Sess. (1969) p. 5.)
75

B. To Fully Inform Decision-making and Public Comment, Financial Assurance Analysis
in the EIS Must Include Failure Analysis and Account For Risks Associated with the
Unprecedented Duration of Monitoring and Treatment.

1. The EIS should include an assessment of the risk and cost associated with the failure of
proposed abatement and reclamation systems for the NorthMet project.

As noted above, the NorthMet SDEIS simply lists categories of possible reclamation measures
and assigns a wide-ranging, lump sum estimate of the cost.
187
By not explaining the basis of
the cost estimate, the SDEIS appears to assume that all anticipated reclamation and
remediation measures will be effective and paid for. History tells us otherwise, however.
188


Other states’ regulations reflect this reality by not assuming that all proposed reclamation
measures will be effective. For example, Wisconsin requires that a trust fund be created and
maintained in perpetuity with funds adequate for specified remedial action.
189
The Wisconsin
Department of Natural Resources must consider “worst case preventive or remedial measures”
to be used to establish the amount to be held in a trust fund for hard rock mining reclamation
when the measures “are shown to have a reasonable possibility of being necessary.”
190
Again,
history teaches that these “worst case” measures are reasonably probable.

Similarly, Michigan requires a permit to mine to include a contingency plan that addresses
potential accidents or failures involving release or threat of release of toxic or acid-forming
materials, wastewater collection and treatment system, settling ponds or tailings disposal area
embankment failure, spills of hazardous substances, unplanned subsidence and leaks from
containment systems.
191
The financial assurance required in Michigan must be based on a cost
estimate for reasonable contingencies and other necessary environmental protection
measures.
192


These state regulations demonstrate the importance of including detailed failure analysis as a
component of financial assurance. The NorthMet SDEIS includes a generic listing of adverse
contingencies, such as corrective actions for permit noncompliance and remediation of
pollution,
193
but only vaguely discusses a 10% contingency, without an explanation of what that
figure is based on or is intended to address.
194
A 10% contingency is no more than a routine
contingency applicable to normal construction activities and does not address, much less fully
account for, the far greater risks and contingencies associated with essentially perpetual
treatment, replacement, and maintenance activities.

Specific probabilities and consequences of failures in nonferrous mine reclamation can be
estimated. The USEPA’s Bristol Bay Assessment identifies the following 13 failure types with
the copper gold mine, many of which would appear to be risks to the NorthMet project as well:


187
SDEIS, Section 3.2.2.4.1.
188
See, e.g., Kuipers, supra, at pp. 8-10 (discussing fallacy of “walk away” strategy for mine reclamation).
189
See Wis. Admin. Code NR § 132.085, sub. 4 (2011) (trust fund to include funds adequate for spills of hazardous
substances, failure of mining waste facility, replacement water supply, etc.)
190
Wis. Admin. Code NR § 132.085, sub. 5(b) (2013).
191
Mich. Admin Code r. 425.205(1) (a) (2013).
192
Mich. Admin. Code r. 425.301(2) (c) (2013).
193
SDEIS, Section 3.2.2.4.1.
194
SDEIS, Table 3.2-15 (reference to “Foth 2013.”)
76

Failure Type
Tailings Dam
Product Concentrate Pipeline
Concentrate Spill into a Stream
Concentrate Spill into a Wetland
Return Water Pipeline Spill
Diesel Pipeline Spill
Culvert operation
Culvert post-operation
Truck Accidents
Water collection and treatment
Tailings storage facility spillway release
Water collection and treatment, managed post-closure
Water collection and treatment, after site abandonment

The USEPA analysis assigns a probability factor to each failure type, and describes the adverse
consequences.
195
The Conservancy recommends that same level of detail and consideration of
various failure scenarios be required in the NorthMet EIS to determine the amount of a financial
assurance that fully protects the lands and waters in the watershed.

Recommendation: The final EIS should be supplemented to include an assessment of the risk
and assign cost factors associated with the failure of proposed abatement and reclamation
systems for the NorthMet project, as was done in the USEPA’s Bristol Bay assessment.


2. The EIS should address the financial impact and need for assurance associated with
additional risks and costs in light of the unprecedented duration of reclamation, monitoring
and treatment.

The NorthMet project design acknowledges the very likely need for water treatment effectively in
perpetuity for both the mine site and the plant site.
196
The extended duration of reclamation and
monitoring required for the NorthMet project makes it all the more important to account, at the
EIS stage, for financial risks associated with that long duration. Specifically, any estimate of
reclamation cost and required financial assurance must consider and fully account for a wide
range of contingencies, such as facility obsolescence, extreme weather events like floods or
drought, tornadoes, etc., changes in regulatory standards necessary to protect human health
and the environment, and various failure scenarios for reclamation components. The extended,
unprecedented duration of the operations and reclamation/monitoring period increase the
uncertainty of any estimate of costs, but the NorthMet EIS fails to even attempt to address the
risk of cost increases and non-performance that results from the significant time risk.

The SDEIS mentions, but does not assign a cost factor to, escalating standards for closure,
reclamation and long term monitoring.
197
Any assessment of expected cost must also factor in
future developments of science and the mechanisms of reclamation. Reclamation should take
advantage of technological progress, and experience under RCRA, CERCLA and other statutes
teaches that reclamation standards become more stringent over time as additional risks and
effects are recognized. Although the SDEIS acknowledges regulatory changes as a cost factor,

195
Bristol Bay Analysis, pp. 14-5 and 14-6, attached hereto as Exhibit A.
196
SDEIS, Section 3.2.2.1.10.
197
SDEIS, Section 3.2.2.4.2.
77

without any description of how the matter is addressed, there is no way to evaluate the possible
underestimation of actual restoration and reclamation activities, and thus underestimation of the
costs.

Moreover, regardless of the regulations that apply, the mining industry track record predicts that
companies will fail to complete reclamation and restoration activities as costs rise and revenues
decline as operations cease.
198
The problem is particularly acute over long term operations and
far longer durations of restoration and reclamation, which subject the costs to substantial
escalation. Proper consideration of the risks associated with revenue shortfalls should be a part
of any analysis of financial assurance.

All the above factors indicate that even with an assumption that the MNDNR will properly
perform its duty to assure adequate financial assurance, any current estimate of restoration and
reclamation costs must take into account failure scenarios, technological progress, regulatory
changes, and extreme weather events such as floods and tornados. The EIS must include
analysis of these risks to ensure that they are adequately borne by PolyMet and any successor
operators and not Minnesota residents and taxpayers.

Recommendation: The final EIS should be supplemented to address the additional costs
associated with the unprecedented duration of reclamation, monitoring and treatment required
by the NorthMet project, such as facility obsolescence, and regulatory and technological
changes.


C. To protect the public and the environment, the EIS must commit to a financial
assurance mechanism, at least 90% of which is composed of a trust fund, to be
maintained until all mitigation performance criteria are met.

The SDEIS merely outlines the purpose and requirement of financial assurance, and does not
propose any particular mechanism for the protection of the lands and waters and Minnesota
taxpayers.
199
Although Minnesota law recognizes various mechanisms to meet required
financial assurance,
200
the only method that will protect the public and the environment from
multiple forms of risk associated with the NorthMet project is a fully funded trust fund, and the
EIS should at least discuss the feasibility and amount to be secured by a trust fund in
comparison to other alternative instruments.

Any third party security is dependent on the financial viability of the third party provider and the
degree to which the third party provider has properly estimated the risk, properly determined the
premium, and safely but effectively invested that premium and others across the pool of risk for
which it is providing financial assurance. Only then will it have resources to meet the
requirements for payout and make a profit. A direct corporate guarantee from PolyMet or
Glencore is even more risky, because it is subject to adverse financial events such as
commodity price fluctuation, losses from other lines of business, and bankruptcy risk. For these

198
Kuipers, supra, at 8 (“While industry and regulatory environmental analysis always predicts 100 percent
environmental compliance for every mine site before mining begins, results regularly contradict these predictions,
especially after mining has been completed, profits have been taken, and cleanup costs begin to build.”)
199
SDEIS, Section 3.2.2.4.2 (“PolyMet intends to propose financial instruments based on appropriateness and
compatibility with the specific activities for which assurance is being provided.”)
200
Minn. Stat. § 93.49 (2012).
78

reasons, the Bureau of Land Management has barred corporate guarantees as a mechanism to
cover reclamation costs under most circumstances, including those applicable here.
201


The extended duration of the restoration and reclamation efforts expected here – in perpetuity --
substantially increases the risks of relying on third party providers. The financial assurance
mechanism will only be adequate if the third party provider remains in existence and is fully able
to pay for these obligations hundreds of years in the future. A simple comparison of financial
institutions, sureties and operating companies today to a list from 50 years ago is sufficient to
demonstrate that the duration by itself makes it unwise to rest on current financial strength. If
the same test is done at 80 years and 150 years, the lesson becomes even clearer – there is no
substantial basis on which the EIS can assume that companies currently in operation, even with
good balance sheets, will be in place in the future, or that any surety, insurer, or financial
institution will remain viable and able to respond.

That analysis strongly suggests that the agencies must require a fully funded trust instrument
and require current funding sufficient to complete restoration and reclamation at any point in
time. If a mix of instruments is proposed to meet the financial assurance obligation, the
Conservancy recommends that the vast majority of that obligation– at least 90% -- should be in
the trust fund form, as other forms of assurance cannot provide the security needed. Appointing
two or three governmental entities – federal, state, or local – to serve as trustees will help
ensure that at least one governmental entity will be in existence when administrative decisions
regarding distribution of trust funds is necessary.

If a trust arrangement is the preferred mechanism, however, the EIS must analyze the issues in
that light, including the cost effect on the operator (would the mine still be financially viable
under such an arrangement), and the expected elements of such a trust. The EIS should
address how the trust principal is invested to ensure its continued availability. The EIS should
also address how the trust fund is to be administered by the trustees to ensure adequate
protection for the taxpayer and the lands and waters affected by the NorthMet project.

Although Minnesota rules contemplate that the amount of financial assurance may be reduced
annually based on the updated estimate of reclamation costs,
202
in this case such an allowance
only injects additional uncertainty and risk to the taxpayer and the possibility of adverse
environmental effects resulting from a failure of financial assurance. The mining company’s
annual estimate of future financial liabilities associated with reclamation is likely to wax and
wane over time. Allowing for the reduction of financial assurance when the then-current-but-
ever-changing estimate is low may well result in unfunded liabilities. Financial assurance
should be reduced only upon meeting satisfactory performance of all required and proposed
standards and it cannot be released for the essentially perpetual treatment, replacement, and
maintenance in the post-closure period.

Recommendation: The final EIS should commit to a financial assurance mechanism, at least
90% of which is composed of a fully funded trust fund to be administered by a group of
governmental agencies, representing state, federal and/or local government.

Recommendation: The final EIS should agree to the release of financial assurance obligations
only upon all closure, reclamation and mitigation performance criteria being met.


201
43 C.F.R. § 3809.574 (2013).
202
See Minn. R. 6132.1200, subp. 4B(3)(b) (2011).
79


By failing to consider in any detail the necessary amount and mechanism of financial assurance,
the SDEIS has failed to properly account for the possibility that restoration and reclamation will
not occur. The amount of financial assurance described in the SDEIS does not account for
multiple risks associated with the perpetual nature of monitoring and treatment, treatment
failure, technological advances, and increased regulatory stringency.

In sum, if there is inadequate financial assurance of full reclamation and treatment, the land and
water resources will be directly adversely affected. Financial assurance must be fully described
by the Agencies and made a meaningful part of the NEPA process. Accordingly, The Nature
Conservancy requests that the agencies perform a comprehensive analysis of the financial
assurances and financial assurance mechanism necessary to provide environmental protection
essentially in perpetuity, that the agencies fully disclose the bases, assumptions, and
documentation underlying the projected cost of adequate financial assurances, that the
agencies allow meaningful public comment on this financial assurance information, and that the
agencies take full account of the public’s comments on this financial assurance information prior
to preparation of a final SEIS.






80











































































Table 2 -- Financial Assurance Comments Exhibit A, Bristol Bay Assessment,
U.S. EPA (2014)

81





Table 2 (cont.) -- Financial Assurance Comments Exhibit A, Bristol Bay Assessment,
U.S. EPA (2014)