Tribal Focus On Several Acres Of Public Wetlands Dooms Huber OSB Project In Minnesota
“Once again, the state of Minnesota is giving the finger to good companies trying to create jobs here. Huber has been a phenomenal community partner everywhere they have operated, with a sterling environmental record. Huber was bringing hope to a community that needed some good news. It is disappointing the Leech Lake Band—and now the court of appeals—would stand in the way of that.”
That’s how Minnesota State Senator Justin Eichorn (R-Grand Rapids) responded to a Minnesota Court of Appeals decision in early February that would have caused further delay in the construction of a $440 million OSB plant by Huber Engineered Woods in Cohasset, but instead immediately prompted Huber to pull out of the project and begin looking to another state for the development of its sixth OSB plant.
HEW President Brian Carlson states, “Due to delays that jeopardize our ability to meet product demand deadlines, we will pursue development of our sixth mill in another state.” Carlson says the company appreciates the strong support provided by a range of Minnesota constituents, including “state, county, city and local officials, government and private sector community development groups, and the residents of Itasca County, and that the Huber team looks forward to maintaining a constructive relationship in the state.”
HEW announced in June 2021 its plan to build the plant on nearly 200 acres adjacent Minnesota Power’s Boswell Energy Center and create 150 direct jobs with additional job and growth opportunities for area logging and trucking operations.
But in a ruling on an appeal from the Leech Lake Band of Ojibwe (its reservation is a mile west of the proposed plant) and the Minnesota Center for Environmental Advocacy, the court of appeals said the Cohasset city planners’ earlier decision to only require an Environmental Assessment Worksheet (EAW) of the project, and not require a more detailed Environmental Impact Statement (EIS) needed to be re-addressed by the city because of issues involving a few acres of two “public waters wetlands” that state law would require an EIS for.
The state of Minnesota requires a “responsible governmental unit,” such as a city planning body, to determine if a project requires an EAW or EIS, or both.
The appeal from Leech Lake Band of Ojibwe and Minnesota Center for Environmental Advocacy also asked the court to weigh the environmental effects potentially caused by air emissions from the new OSB plant and from the volume of timber harvesting that the plant would require. The city had determined there would be no significant environmental effects from either, given the permitting and planning requirements the project would require going in. The appeals court ruled in favor of the city as to “no significant environmental effects” and against the Band and the Minnesota environmental group.
But the court took to task the city’s determination that an EAW was enough for the project with regard to public wetlands. Huber initially submitted an EAW and then, at the city’s request—following additional consultation and review from local citizens, state agencies, and other interested parties, and providing more information about the health of Minnesota’s forests and their ability to sustainably supply the facility, and providing more detail on the project’s carbon footprint, especially regarding the effects of generating much of the facility’s energy needs through wood fuels, and the carbon sequestration effects of the finished wood products—re-submitted the EAW, which the city accepted while deciding an EIS wasn’t necessary.
The Leech Lake Band of Ojibwe appealed, and the appeals court agreed, that the facility “falls into categories” for which an EIS is mandatory under Minnesota law, specifically as to the elimination of public waters wetland.
The city had determined that the project would not eliminate public water wetlands. But the court focused on two small public waters wetlands, which the court said are “accorded greater protection under state law” and should require an EIS beyond an EAW.
The court noted that the state’s definition of public waters wetlands is 10 or more acres in size in unincorporated areas and at least two and a half or more acres in incorporated areas. Huber’s EAW explained that its project would involve filling portions of two public waters wetlands, both in incorporated areas: 8.73 of 14.27 acres in one and 1.65 of 5.67 in another, and that while there would be a reduction in the size of each, it wouldn’t “eliminate” the public waters in question and only reduce the size, and thus not require an EIS. The city agreed that the partially filled public water wetlands would not fall below the 2.5 acre threshold after the partial filling.
The appeals court, however, said the state law did not explain what it means to “eliminate” a public waters wetland, and took the liberty to base its ruling that “eliminate” can also mean to “modify” the public waters wetlands, and ruled that because the project would alter the characteristics of the public wetlands the city should apply this legal standard and re-assess whether an EIS is necessary.
The Leech Lake Band also said the public waters wetlands fillings would have significant environmental effects that should require an EIS and that the city failed to consider these. The Band said the wetlands Huber planned to fill are a filter for water quality that nearby wild-rice beds depend upon, and removing the wetland filters would be harmful to the water quality that the rice requires. The court agreed, noting the city did not investigate or explain how wetlands replacement (as the project would entail) or stormwater controls would protect the wild-rice bed and other resources downstream.
The court said the city should reconsider given these stipulations and then issue a revised decision on the need for an EIS. Huber’s withdrawal from the project apparently now renders such an exercise as unnecessary.
“The court decision issued today is a major victory for the Leech Lake Band of Ojibwe and serves as a powerful reminder of the importance of respecting the sovereignty and treaty rights of indigenous nations,” comments Band Chairman Faron Jackson, Sr. “The proposed OSB mill project posed a clear threat to our sacred resources, including wild rice and wildlife, while bypassing an important step in the environmental review process.”
Upon the announcement of Huber’s departure, Tamara Lowney, president of Itasca Economic Development Corp., told the Duluth News Tribune, “Today really feels like a funeral in my office, saying goodbye to the biggest opportunity that our region and our northern part of the state has seen in decades.”
The project would have replaced lost jobs and tax base as the adjacent Boswell coal-fired energy plant shuts down its coal burning units and possibly reconfigures to renewable energy sources.
The Cohasset OSB mill would have been Huber’s sixth, following facilities in Maine, Georgia, Virginia, Tennessee and Oklahoma. Had the timeline not been delayed from the outset, Huber’s construction of the plant would have occurred during the current OSB market softening, possibly putting it in prime position upon startup to take advantage of the next market strengthening.
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