An Agate Original

As usual when it comes to wild rice (Zizania palustris) and sulfate pollution, Minnesota’s chief environmental watchdog finds itself between a rock and a hard place. The Minnesota Pollution Control Agency (MPCA) has been trying for years to figure out how to get taconite mines and wastewater treatment plants to reduce the sulfate in their effluent because it damages wild rice. The current effort involves something called Site Specific Standards, and it looks likely that it will have no more success than previous attempts. That hasn’t stopped two mining giants from giving it a try.

Minnesota is the only state that has a sulfate standard for wild rice waters, and wild rice is our state grain. Our lakes and rivers are nearly the last refuge for this once-abundant food staple, which grew in shallow, slow-moving water across the eastern third of North America. The Dakota people gathered wild rice in much of Minnesota, and the Anishinaabe call it their sacred food; they were directed to migrate to the land where “food grows on the water” and make their homes here. It is an important part of their diet and an essential part of their spiritual life.

Minnesota’s current sulfate limit is based on the observations of Minnesota DNR biologist John Moyle, who in the 1940s studied the chemistry and biology of countless water bodies in Minnesota. He noted that wild rice generally thrives only in water that has less than 10 mg/liter of sulfate. The state put that number into law as a limit for wild rice-growing waters in 1973.

But the rule has never consistently been enforced. Tribal and environmental groups pushed for years until finally, in 2010, the federal Environmental Protection Agency (EPA) told the state it had better start enforcing the standard. Minnesota’s environmental rules must be approved by the federal agency.

Sulfate enters natural ecosystems through some industrial processes, including taconite mining and wastewater treatment. In 2011, as the MPCA began to try to enforce the nearly 40-year-old standard, the legislature directed the agency instead to study the matter and come up with a new rule. MPCA staff, university researchers and others conducted research over more than three years that showed in detail how sulfate acts on the grain.

Looking back, lead researcher John Pastor, University of Minnesota Duluth biology Professor Emeritus, says the researchers essentially confirmed Moyle’s observations, and explained why nature works that way. “Moyle was right,” he says, “and we showed why he was right.”

They learned that sulfate itself doesn’t harm the rice, but bacteria in the water break the sulfate down into sulfide, which is poisonous to many freshwater plants, including wild rice. And they began to understand how complex the interactions are among various components of the muddy bottoms of wild rice lakes and rivers. Some researchers developed a theory that a lot of iron in the water could protect the plants from sulfide, and this could help explain why some higher-sulfate waters supported wild rice. Further research weakened that argument, as monitoring stands of wild rice over time revealed that the iron formed plaques on the roots of the rice, eventually preventing them from getting adequate nutrition from the lake bottom and debilitating the stand.

In 2017 MPCA developed a new rule which set aside the 1973 standard and required consideration of site-specific standards for all wild rice waters. It created a complex formula that included sulfate, iron content, organic carbon, and other parameters, which was designed to yield a protective level of sulfate given the unique characteristics of each water body.

In 2018 Administrative Law Judge LauraSue Schlatter rejected the MPCA’s plan. In findings reviewed and endorsed by the Chief Administrative Law Judge, Schlatter said the MPCA had violated the federal Clean Water Act by repealing the 1973 standard. She reinstated that rule and said because the new formula would require years of study on individual wild rice lakes, it was unconstitutionally vague. She also charged that the “comments from the Native American community demonstrated that the Agency has not succeeded in building an atmosphere of trust regarding this proposed rule, or in making the Minnesota Native American community feel that it has been heard… they believe that the long-term survival of wild rice is in peril and do not believe that the Agency understands the importance of wild rice in Native American culture and life.”

Four months later, the agency announced it was withdrawing from the rule-making process.

Meanwhile, mining supporters in the legislature were active. They adopted the argument that the 1973 law was based on outdated science and that the mining industry could not afford to reduce its sulfate pollution. In 2015, 2016, 2017 and 2018 the legislature passed a series of laws, typically with support from Republicans and the Democrats representing northeastern Minnesota, which limited the MPCA’s power to enforce the existing standard.  The Minnesota Chamber of Commerce sued the state to try to overturn the 10 mg standard but lost. EPA told the state if it wanted to change the standard, the move would have to be based on sound science and meet federal approval.

U. S. Steel’s annual gross profit for 2022 was $4.288B. Cleveland-Cliffs’ annual gross profit for 2022 was $2.518B.

Industry also argued that the MPCA couldn’t begin enforcing the rule until it had designated which waters were producing wild rice. In 2015 the legislature prohibited the agency from making such a list until it had designated a new limit. The Clean Water Act requires states to list impaired waters every two years and to develop plans to clean up any waters listed, but years went by with no sulfate-impacted waters on the list. Finally, responding to Tribal and environmental groups’ complaints, the EPA partially rejected the list in 2021 and added 32 wild rice waters to it. Now the MPCA says about 70% of facilities that require water pollution permits are upstream from wild rice waters.

Currently the agency is proposing a “framework” based on the in-depth research mandated by the legislature in 2011. It would allow industries to apply for a site-specific standard tailored to a specific waterbody. Both U.S. Steel and Cleveland Cliffs immediately applied for such a standard for lakes downstream from their mines. In fact, they had both prepared these applications years earlier.

Cliffs’ application is for a site-specific standard for Perch Lake, downstream from its United Taconite plant near Eveleth. Surveys show wild rice present but struggling in Perch Lake. Cliffs’ application emphasizes the many factors that can contribute to healthy vs. sparse wild rice stands, including water flow, levels, and transparency, water temperature, water and sediment chemistry, groundwater upwelling, annual cycles of wild rice production, shoreline and watershed development, and presence of other water plants. While acknowledging that there are not enough data to make a firm conclusion, the application suggests that conditions in Perch Lake may contribute to inefficient conversion of sulfate to sulfide, and it proposes a sulfate limit for Perch Lake of 430 mg/L.     

U.S. Steel’s application is for a site-specific standard for Hay Lake, downstream from the Keetac mine near Keewatin. It points out that the Administrative Law Judge’s order did not reject the scientific basis of MPCA’s proposed framework and says therefore the methods can be used on a case-by-case basis for permitting decisions.

Tribal leaders say they’re disappointed in the MPCA’s apparent determination to stick to its formula. Margaret Watkins, Water Quality Specialist at the Grand Portage Band of Lake Superior Chippewa, says the state can’t use site-specific standards permanently. “The way the Clean Water Act works is that when an industry can’t meet the standard it can get a variance, but the variance is time-limited, and they need to ratchet down until they meet the standard,” she says. “Just allowing unabated pollution is not going to work.” Further, she says it will be difficult for the public to track how the framework is implemented, because MPCA will evaluate each permit request on an individual basis. In general, the MPCA has so far not issued variances to the mines; permits (many of them outdated) have simply not included limits on sulfates.

MPCA staffers are meeting with Tribal experts to get input on the plan. Nancy Schuldt, Water Projects Coordinator at the Fond du Lac Band of Lake Superior Chippewa, emphasizes the need for clarity. “We told them, ‘You need to be clear in this framework that the permittee must collect data frequently and year-round, not just for a few weeks in the summer,’” Schuldt says. “Variability in sulfate-receiving waters can be very high. The sulfate is constantly there, and it various a lot across the year.” Applicants also need to collect long-term and detailed information about the wild rice population in the receiving water. Even ten years’ data may not be enough to detect possible downward trends in population, she says. Wild rice typically grows in a 3–4-year cycle of strong growth followed by decline and building back up to strong growth.

Researchers at the University of Minnesota Duluth measured biomass in wild rice populations in tanks with 10 mg/L sulfate and 300 mg/L sulfate added. The higher sulfate loading pushed the peaks and valleys of typical wild rice growth cycles down, so that at some point in a low population year there may simply not be enough viable seeds to keep the stand growing.

As for the two applications already submitted, Schuldt calls them ridiculous. “They are Exhibit A and Exhibit B on why it’s so important for MCPA to be clear and direct in its framework,” she says. “Industry will work around the edges, will try to maximize the significance of that equation and minimize the importance of actual data on wild rice stand density and condition.”

Schuldt says she is hoping the agency will incorporate Tribal concerns. “Though it’s not perfect, it represents some progress in the direction of actually enforcing some standards to protect wild rice,” she says.

The MPCA is holding a public informational session on the framework online on Wednesday, Sept. 27 from 1 p.m. to 2 p.m.