In an apparent sea change, MPCA steps up to enforce the ‘Wild Rice Rule’. U.S. Steel pushes back.

Issue heading to the Minnesota Court of Appeals

In 1973, Minnesota established the “Wild Rice Rule”, one of many sweeping environmental protection rules and laws passed that decade. The rule caps wild rice-killing pollution from industrial wastewater.

The rule affects taconite mines in particular.

The Minnesota Pollution Control Agency (MPCA) is responsible for enforcing the Wild Rice Rule, but it hadn’t been.

That seems to be changing.

U.S. Steel recently applied to the MPCA to relax the pollution standards for its Keetac taconite mine near the city of Keewatin. The mine is just upstream from Hay Lake, a wild rice lake.

Taconite ore contains low-grade iron. Extracting it is a water-intensive process. The wastewater contains sulfates, which break down into wild-rice killing sulfide compounds. These compounds can coat wild rice roots and interfere “with nutrient uptake”, according to the environmental group Water Legacy.

The Wild Rice Rule limits sulfate pollution from industrial wastewater to 10 milligrams per liter (mg/l) in wild rice waters.

U.S. Steel asked the MPCA relax the standard to 79 mg/l at its Keetac plant.

Surprising many who have pushed for strong enforcement of the Wild Rice Rule, the MPCA denied U.S. Steel’s request — and did so in strong language.

In a Feb. 14 letter to U.S. Steel, the MPCA wrote that, among other problems, the company’s analysis “is not scientifically defensible.”

The four-page letter didn’t contain everything that needed to be said, the agency said: “The issues outlined below address broad themes and do not represent a comprehensive listing of MPCA’s concerns on all aspects of the application.”

On March 15, U.S. Steel appealed the MPCA’s decision to the Minnesota Court of Appeals.

Members of the Leech Lake Band of Ojibwe harvest rice. (Photo: U.S. Army Corps of Engineers.)

Key points

• In a rare event, the MPCA is in court arguing on the same side as Tribal Nations and environmental groups. (This has not been the case with such major projects as the PolyMet Mine.)
• This case could set a precedent for whether or not other taconite mines can succeed in getting laxer sulfate pollution standards.
• This is a critically important issue for Anishinaabe Tribal Nations and their peoples.

Wild rice (manoomin) is a sacred food for Anishinaabe. It holds cultural, nutritional, and spiritual significance. Tribal Nations, such as the Fond du Lac Band of Lake Superior Chippewa, have tried to pressure the MPCA to enforce the Wild Rice Rule. WaterLegacy also has been actively engaged in this work.

U.S. Steel is objecting to the MPCA’s expansive definition of wild rice waters in its court filing. For instance, its arguing that the Wild Rice Rule only applies in an agricultural context, such as intentionally cultivated wild rice beds, and not to naturally occurring wild rice stands.

It’s an insult to Anishinaabe people, arguing that their sacred food doesn’t deserve the same protection as a commercial product.

The MPCA has federal obligations

The MPCA administers and enforces portions of the federal Clean Water Act under a delegation agreement with the U.S. Environmental Protection Agency (EPA). That responsibility includes administering the National Pollutant Discharge Elimination System program, which regulates point-source water pollution.

The MPCA’s federally approved Clean Water Act standards include the Wild Rice Rule. The agency cannot unilaterally change it without federal approval.

Stunningly, as of 2018, the agency had enforced the rule only two times in the previous 45 years, once in 1995 and once in 2010, court records say.

Keewatin is ~26 miles northeast of Grand Rapids. Image: GoogleMaps.

In 2010, after decades of non-enforcement, the EPA told the MPCA it had to enforce the Wild Rice Rule; that would mean that mining companies had to “collect and treat their polluted wastewater before discharging it to Minnesota wetlands, streams, and rivers — at the expense of the polluters,” WaterLegacy’s website said.

Around that time, Minnesota had 48 mining operating with expired water discharge permits, according to an EPA working document.

The 48 permits have been expired for an average of 3.5 years. One has been expired for 23 years, another has been expired for 20, and four have been expired for seven years.

EPA, undated document circa 2012

The EPA sought a commitment from MPCA to designate which waters qualified as wild rice waters and ways to assess their water quality.

Enforcement tug of war

While the EPA was pushing the MPCA to enforce the Wild Rice Rule, U.S. Steel and the business lobby were trying to create legal roadblocks to enforcing it. In 2015 and 2016, they successfully lobbied the State Legislature to pass laws that barred the MPCA from enforcing the Wild Rice Rule until it did more research and updated the standards.

The MPCA cannot unilaterally change its Clean Water Act standards without federal approval.

The agency started work on a new rule. It tried to develop a formula to set sulfate pollution limits for individual wild rice waters, instead of having one universal limit of 10 mg/L..

Industry favored the rule; wild rice advocates opposed it. The rule was never adopted.

The agency still wasn’t enforcing the Wild Rice Rule.

On Feb. 16, 2022, the EPA wrote a letter to the MPCA, saying the state laws barring the agency’s enforcement of the Wild Rice Rule — the 2015 and 2016 laws — were “inconsistent” with the Clean Water Act.

That’s a bureaucratic way of saying the laws were invalid and the MPCA should be enforcing the Wild Rice Rule.

Current court case

U.S. Steel continues to argue the Wild Rice Rule is obsolete.

The Sulfate Standard was adopted in 1973 based on information gathered in the 1940s and 1950s. In the 2010s, the Minnesota Legislature, recognizing that the Standard was unclear, not based upon sound science or data, and outdated, acted three times to limit Respondent’s [the MPCA’s] enforcement of the Sulfate Standard until it was updated.

U.S. Steel court filing

The U.S. Steel filing does not address the fact that the MPCA has to enforce the Wild Rice Rule under its Clean Water Act commitments.

Further, there is the empirical fact that wild rice stands have died downstream from the company’s Minntac taconite plant near Mountain Iron. The mine releases wastewater with sulfate concentrations well above the state standard.

WaterLegacy has filed a petition to intervene in the Keetac case, indicating a lack of confidence in the MPCA to protect wild rice. It wrote:

WaterLegacy’s interests are not adequately represented by existing parties. … WaterLegacy and the MPCA have frequently diverged on issues related to wild rice beneficial use, enforcement of Minnesota’s wild rice sulfate standard, the use of a Formula in place of the standard, and the need to designate Hay Lake as impaired for wild rice …

Full intervention is requested, rather than just the opportunity to submit an amicus brief, in order to 1) address broad issues raised by US Steel regarding application of the wild rice sulfate standard on which the MPCA and WaterLegacy have previously taken opposing positions, and 2) ensure that there is a complete record supporting MPCA’s decision to deny a site-specific sulfate standard for Hay Lake.

WaterLegacy’s petition to intervene