On September 10, 2019, the Fond du Lac Band of Lake Superior Chippewa filed suit in the U.S. District Court for the District of Minnesota, alleging the Environmental Protection Agency, or EPA, and the Corps violated Clean Water Act Section 401(a)(2) due to EPA's failure to issue notice to the band and the Corps' failure to hold a hearing on the downstream impacts of the PolyMet/NorthMet Mine project or take measures needed to ensure the project meets the band's water quality standards.
The court ruled that "EPA had a non-discretionary duty to make a 'may affect' determination pursuant to Clean Water Act Section 401 (a) (2). In response, EPA filed a motion on March 4, 2021, requesting a voluntary remand to allow EPA to make the "may affect" determination required by Section 401(a)(2). Further, on March 4, 2021, EPA requested the Corps consider suspending the 404 Permit if the court granted its motion for a voluntary remand. Subsequently, the court granted EPA’s motion on March 8, 2021. On March 17, 2021, the Corps suspended the Clean Water Act 404 permit while the EPA reconsidered effects on downstream water quality from the proposal under 401(a)(2). To date, no work in waters on site as authorized under the Department of the Army permit has begun.
On June 4, 2021, the EPA issued a ‘may affect’ determination to the Band and the State of Wisconsin. Each party had 60 days to determine if the discharge will affect the quality of its waters so as to violate any water quality requirements, to notify the EPA and Corps of its objection and to request a public hearing. On August 3, 2021, the band submitted to the Corps an objection to the 404 permit and requested a public hearing on the objection pursuant to CWA Section 401(a)(2). The State of Wisconsin did not object to the CWA Section 404 permit.
The U.S. Army Corps of Engineers, St Paul District, completed its Record of Decision and issued an individual permit to PolyMet Mining, Inc., for its NorthMet project March 21, 2019. The permit authorizes the discharge of dredged and fill material into 901 acres, and indirect impacts to 27 acres, of waters of the United States in association with the construction and development of the NorthMet mine, which is located in St Louis County, Minnesota.
The Corps' evaluation of the project was for construction-related impacts to wetlands, specifically the discharge of dredged or fill material into waters of the U.S.
The applicant purchased 1,278 credits from the Lake Superior Wetland Bank to offset wetland loss.