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Before the United States Army Corps of Engineers (Army Corps) can issue a permit allowing the dredge, fill or destruction of wetlands under Section 404 of the Clean Water Act, both state and federal agencies have the opportunity to review the potential wetlands destruction and determine whether the permit would comply with sections of the Clean Water Act designed to protect water quality (Section 404(c) and Section 401 of the Clean Water Act). Agencies must indicate their intent to conduct this Clean Water Act review within a year of the public notice issued by the Army Corps for the wetlands destruction permit.

In 2005, the Army Corps published notice of PolyMet’s application for a permit to dredge, fill and impact wetlands for its proposed sulfide mine. The Minnesota Pollution Control Agency (MPCA) did not exercise its right to review the project under Section 401 of the Clean Water Act. Tribal agencies, which also have Clean Water Act jurisdiction, did not yet have the capacity to make a recommendation to the United States Environmental Protection Agency (EPA) regarding Clean Water Act water quality certification.

WaterLegacy's work:

WaterLegacy determined that it was critical to protection of water quality that the Army Corps re-issue a Section 404 public notice when the PolyMet NorthMet sulfide mine project has been revised and the scope of the project is known. Any deadlines for state, tribal and federal review under the Clean Water Act would not begin until that notice was re-issued.

WaterLegacy and other conservation groups made a request to the Army Corps for re-issuance of public notice in August 2009, before the draft environmental impact statement for the PolyMet Project was released.  In January 19, 2010, the Army Corps notified WaterLegacy that the agency “would prepare and notice a second Section 404 public notice for the proposed PolyMet NorthMet Project.”

In March 2011, WaterLegacy and other conservation groups followed up with a second letter to confirm the timing of the second Section 404 public notice to which the Army Corps had committed. WaterLegacy then continued a dialogue with the Army Corps.

In April 2011, the Army Corps sent a letter to WaterLegacy confirming that a second Section 404 public notice will be issued for the PolyMet Project at approximately the same time as the Supplemental Draft EIS for the Project is released to the public, stating as follows:

“The USACE will issue a second Section 404 public notice for the Project at approximately the same time that the SDEIS is released to the public, which is tentatively scheduled to be in the fall of 2011. The public notice will provide an opportunity for any person to request, in writing, within the comment period specified in the public notice, that a public hearing be held to consider the Section 404 permit application. Requests for public hearings shall state, in detail, the reasons for holding a public hearing. A request may be denied if substantive reasons for holding a hearing are not provided or if there is otherwise no valid interest to be served.

“If substantive reasons for holding a public hearing are provided, the USACE will schedule and conduct a public hearing as soon as practicable at a location or locations to be determined. If a public hearing or hearings are conducted, any member of the public will have an opportunity to speak about the Project in front of those that are present.”

Key documents:

August 10, 2009  Request from WaterLegacy and other conservation groups requesting that the Army Corps re-issue public notice for the PolyMet Section 404 permit based on changes to the project.

January 19, 2010 Army Corps Letter, containing a commitment to prepare and notice a second Section 404 public notice for the proposed PolyMet NorthMet Project.

March 18, 2011 Request from WaterLegacy to Confirm Timing for Second Section 404 Notice.

April 20, 2011 Army Corps Letter to WaterLegacy confirming that second Section 404 notice will be issued at approximately the same time as completion of the PolyMet Supplemental Draft EIS.

Additional information on Water Quality Certification and WaterLegacy advocacy to protect wetlands and water quality can be found at Advocacy – Protecting Wetlands.

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