The Cottage Grove Council met Wednesday, Nov. 5 in the St. Croix Room at city hall.
Chief among items on the agenda was the determination of Final EIS adequacy for the Nelson backwater mine, a proposed riverbed mine off Lower Grey Cloud Island.
Determined as 'adequate' and passed as part of consent agenda, by the council, the council’s determination Wednesday did not go unchallenged by others.
Among those speaking during open forum on the matter were seven local residents and Whitney Clark, executive director for Friends of the Mississippi River (FMR). While most of the local residents were from River Acres and live next to the mine, raising environmental concerns, Clark challenged the legality of the Final EIS document.
"The proposed project is not legal," Clark said. "City and state regulations ban mining in shoreline areas within the Mississippi River Corridor Critical Area. The city claims those rules somehow don't apply to the Nelson Mine, but they do. The city's own shoreline mining ban very clearly applies to expansions of existing mines such as this one. The language in the city's ordinance is clear."
Clark stated the city argued that mining privileges were grandfathered in, before telling them it would be "illegal" to approve an environmental impact statement with "factual inaccuracies.” Mining began on Lower Grey Cloud in the 1950s, prior to Cottage Grove’s incorporation as a city.
"It is illegal to approve an EIS with such factual inaccuracies," Clark told the city, calling on the city to halt the EIS process until deficiencies were addressed.
"Cottage Grove's insistence on pressing forward, regardless of the facts, could result in legal challenges that will cost the city and its residents for years to come," Clark said. "I urge you to halt this EIS approval process until the document accurately reflects the damage this project will cause and the legal issues associated with it.
Clark questioned why the city was ignoring input from other agencies.
"Why is the city ignoring the input from so many other government agencies including the Metropolitan Council, DNR, National Park Service, Army Corps, Prairie Island Indian Community, Shakopee Mdewakanton Sioux, and others?" Clark asked, referring to comments in the draft and Final EIS. "Cottage Grove Grove is ignoring the law in favor of one corporate tenant's interests." The Metropolitan Council advised the city in an EIS comment letter to find the EIS as it stands ‘inadequate,’ while the State Historic Preservation Office (SHPO) has counseled that mining “avoid" archaeological sites and burial mounds in both the Schilling Archaeological District just north of the proposed mine as well as the Lake Baldwin alternate. The Minnesota Indian Affairs Council for its part noted that "no mining activities or ground disturbance is permitted within cemetery site boundaries," going on to say that the Final EIS still had mining development like conveyor belts within cemetery boundaries, it being a felony offense to disturb a cemetery.
"Non-compliance with regulatory decisions can result in legal action," they noted.
Mining on Lower Grey Cloud Island is managed by Amrize, formerly known as Holcim US. The company currently operates an inland mine on Lower Grey Cloud Island for sand and gravel, the roughly 395 acre Nelson site and and an alternate at Baldwin allowing it to use much of the same equipment while moving out into Pool 2 of the Mississippi. A third alternate contained in the EIS for Coates township would require land acquisition and involve trucks for transport of material rather than barges, resulting in greater vehicle emissions, according to comments made at an open house at the HERO Center earlier in the process.
Back at council, Clark stated that the backwater mining project as proposed in Pool 2 would "damage wetlands, mussel beds, and rare plant communities," going on to state other impacts.
"It will reduce backwater access for boaters, hunters, and anglers," Clark said. "It will add noise and visual pollution to local parks and neighborhoods. All of that harm will go on for decades."
FMR also submitted a letter to the city Oct. 28 outlining its legal objections to the project as mining a shoreline area of the MRCCA. Included in the letter by FMR Land Use/Planning Coordinator Colleen O' Connor Toberman are the following assertions:
I. The proposed expansion is prohibited by the plain language of the applicable statute.
II. The project cannot proceed as a legal non-conforming use
II. A. The FEIS (Final EIS) fails to establish that Amrize has legal non-conforming rights.
II. B. If Amrize has a legal nonconforming right, the city's preferred alternative is an unlawful expansion of that right.
O'Connor Toberman notes in her that the riverbed is privately owned, going back to a time before Pool 2, then stating that, "Regardless of who owns the riverbed, the river above it is public and subject to public waters regulations. There are no other active aggregate mine sites in Minnesota's public waters."
Also providing comment on the Final EIS in letter former was U.S. Army Corps of Engineers Lead Project Manager Daryl W. Wierzbinski, who noted additional details of the project.
"We appreciate the acknowledgement that the FEIS is being prepared according to the RGU's authority under MEPA," he wrote, MEPA standing for Minnesota Environmental Policy Act. With different state and federal environmental review requirements, the project will be evaluated separately under the federal review process, additional analysis anticipated to satisfy the National Environmental Policy Act (NEPA) as laid out in part 325 of the Code of Federal Regulations, along with Public Interest Review (33 CFR 320.4), and Section 404(b)(1) Guidelines, as contained in 40 CFR part 230.
Importance of purpose will need to be shown under Section 404 of the Clean Water Act.
"The project is not a water dependent project," Wierzbinski wrote in part for Final EIS comment. "Amrize must rebut the presumption that there is an upland alternative that is less environmentally damaging."
Coming out in favor of the proposed mine by Amrize are Union of Operating Engineers Local 49 and the Upper Mississippi River Waterway Association (UMWA), both of whom shared thoughts in draft EIS comments.
"The workers at the existing Holcim Nelson Sand & Gravel Mine Facility are members of IUOE Local 49 and are local to the region," John Pollard of Union of Operating Engineers Local 49 said via Charles Sutton in Draft EIS comments included with the Final EIS. "The facility provides family-sustaining wages and benefits for their members and families. As noted in the DEIS (Draft EIS), the currently facility is projected to exhaust its reserves in the next 5 years. Approval of the proposed Nelson Mine Backwaters Project is critical to their retention and continued employment at the facility and would extend the life of the facility for 20 to 25 years.
“Beyond the direct employment of our members at the facility, the proposed project is critical to ensuring a needed and cost effective supply of construction grade aggregate materials to ready mix plants in the twin cities region.
"As noted in the DEIS, without this project it is likely that a new source of aggregate materials would need to be identified and would likely be 25 - 50 miles away. This would increase costs for construction projects, traffic congestion resulting from the additional trucking requirements, and greenhouse gas emissions. If a new source of aggregate were not identified, critical infrastructure projects could be delayed, resulting in fewer job opportunities for our members and impacting overall economic growth in the region.
"Having reviewed the DEIS, we believe it meets and exceeds state requirements and adequately addresses issues identified in the scoping documents. The mining project developed by Holcim (now Amrize) is responsible and would appropriately protect and mitigate impacts to the environmental resources in the region.
"We fully support and would encourage its timely approval to provide assurance of future employment to our members that work at the facility."
Also in favor was the Upper Mississippi River Waterway Association, incorporated in 1932 and based in Mankato.
“UMWA is gravely concerned about the suggestion that could be any delay or prohibition of continuing mining on these properties due to the benefit it brings to commerce and employment on the River, environmental benefit, and the important need for aggregate to maintain our quality of life in the region by having important building materials produced efficiently, cost effectively through this products being originated regionally,” it said.
“The far lower emissions produced, and safety afforded by transporting materials that are removed from our roadways, products that are competitively priced for export, import and domestic usage, as the main artery for many family farms to reach their markets and receive inputs, are but a few reasons it is nationally important to maintain a continued overall use and transit on the working waterways to assure a resilient and reliable transportation system for the United States.
“Users rely upon one another to have a threshold volume of traffic on the river to keep services, infrastructure, and equipment operating, available, and competitive. Any loss of transportation on the River affects ALL users adversely…Our Association strongly urges the permitting of the Backwater Project due to the large benefit in overall commerce and other impacts noted previously in this letter. We ask that those evaluating the permitting to allow this project to move forward considered the lowered impact of this site being utilized versus if shifted elsewhere, and the consequences environmentally, commercially, and societal that would be inadvertently caused through delay or interference in the permits being granted.”
Back at Open Forum Nov. 5, several Cottage Grove shared their thoughts on the matter. Raising environmental concerns similar to those stated by FMR executive director Clark, residents took turns outlining their opposition to the proposed project. Among concerns raised were underwater noise, impact on aquatic life, and the potential for a city located downriver being adversely affected and suing Cottage Grove.
River Acres resident Sue Chamberlain shared her view on how the council should vote regarding the EIS’ determination of adequacy.
“All of us living in Cottage Grove should consider ourselves blessed to be living near such a magnificent national treasure and federally protected Mississippi River” she said. “Unfortunately, the Mississippi River is also the number one endangered river in America. To even consider allowing a mining company to mine 200 feet down into the Mississippi over vast acres of protected wetlands is in my opinion, unconscionable. Tonight the council must vote ‘yea’ or ‘nay’ to accept this EIS report as a satisfactory report of what potential impacts mining could have on the Mississippi River. I ask you, as the governing unit responsible, to vote ‘no’ on the acceptance of this incomplete report. The council must request and insist on more detailed coverage in several areas.
“For example, the impact of underwater noise and immense vibrations created by the underwater mining on aquatic life and surrounding wildlife. This area of study is nowhere to be found in the EIS report, but it can have major impact on the wildlife of the river. It only references noise issues above the water, not underneath the water. The constant drone of underwater mining 24/7 could potentially be as loud as a jet engine and travel miles under the water, possibly creating an entire dead zone of the river. Where is the critical detail on berm construction and impact on river flow and construction? They state that it’s to be ‘further determined’ during the state and federal permitting process. That huge unknown should not be acceptable to Cottage Grove.
“This is the only EIS study, and it’s very lacking. What about restorations for the destroyed wetlands? Where is the financially secured funding that this company will provide for the river reclamation at the end of this mine in 20 to 25 years? How much will it cost then? What if they refuse to pay or they’re no longer in business? What about the funding for liability claims or natural resource damage that might happen during mining? What if some downriver city is detrimentally impacted and decided to sue the city of Cottage Grove or the state of Minnesota for allowing this mining operation? All of this information is sorely lacking in the EIS study. Please do not accept the EIS report in its current format and vote ‘no.’ Thank you for your time.”
“Thank you Sue,” Mayor Myron Bailey said. Six other city residents spoke, all opposed to the mine.
Following open forum comment Bailey read a statement laying out the city's own position on the matter of the proposed backwater mine.
"The city, since Day 1, has taken our role as the responsible government unit (RGU) to gather potential impacts very seriously," he said. "This action tonight does not permit the project. It is specific to the adequacy determination of the final EIS. " Stating that the city had worked with a host of experts and specialists, including "hydrologists, ecologists, noise specialists, geologists, and engineers,” Bailey said the city's role was limited to information gathering.
"Our role was to gather the potential impacts of this proposed project and we did that," he said.
Cottage Grove Council member David Thiede asked a question of City Administrator Jennifer Levitt prior to voting.
"Will this come before the council again before it's allowed?" he asked of the proposed mine. Levitt replied that it would, the city being the final permitting agency to allow the mine to go forward after it makes its way through state and federal agencies.
The final EIS adequacy then passed unanimously as item S in the consent agenda, motion to approve consent made by Council Member Justin Olsen and seconded by Council Member David Clausen.
The Minnesota Department of Health currently maintains a "do not eat" to "one serving a month" fish consumption advisory for the Mississippi from Ford Dam to Hastings Pool 2, noting mercury, PCBs, and PFAs (PFOS) in its reasoning on the matter.