Friday, February 02, 2018

DEQ hearing on Back 40 wetlands permit attracts nearly 500; Menominee Tribe lawsuit seeks federal Clean Water Act jurisdiction

By Michele Bourdieu

The large gym at Stephenson High School was filled with about 500 people attending the four-hour Michigan Dept. of Environmental Quality Hearing Jan. 23, 2018, on Aquila Resources' Back 40 mining project application for wetlands permitting. (Photo © and courtesy Emilio Amador Reyes)

STEPHENSON, Mich. -- Nearly 100 concerned citizens, both Native and non-Native, spoke during the Jan. 23, 2018, Department of Environmental Quality (DEQ) public hearing on the wetlands permit for the Back 40, Aquila Resources' projected open-pit sulfide mine, for gold and other metals, near the Menominee River, which forms the border between Michigan and Wisconsin, not far from Lake Michigan.

Many speakers were from the Menominee Indian Tribe of Wisconsin, who have opposed the Back 40 project for years and who filed a lawsuit on Jan. 22, one day before the hearing. The lawsuit is a complaint against the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers for failing to follow the Clean Water Act Section 404 permitting regulations by delegating wetlands permitting to the State of Michigan.*

While a few speakers defended the mining company's application, the majority spoke -- many with passion -- in opposition to the wetlands permit application and the mining project itself, citing harmful impacts not only to the river and adjacent wetlands but also to historical and cultural resources, including archaeological sites in or near the proposed mine site.

Regina Chaltry and her daughter, Grace, spoke from the heart against the mine and for the water. Regina asked DEQ to deny the permit. She said she opposes the project because Aquila has applied for only an open pit mine while promising investors an underground mine, which underscores all calculations of waste rock, discharge water and tailings.

Regina Chaltry speaks at the hearing against the Back 40 mining project. (Photo © and courtesy Marisa VanZile);

"Our family has had a cabin on the river for more than 70 years in the current location and spend a lot of time of the river," Regina said.

Grace captured the hearts of the audience with her brief statement:

Young Grace Chaltry speaks out for the water. (Video © and courtesy Mark Doremus)

Two members of the Menominee Tribe who spoke at the beginning of the hearing were Ada Deer, former Menominee tribal chair, and Guy Reiter, Menominee tribal organizer. Here are some brief excerpts from their speeches:

Ada Deer, former Menominee tribal chair, speaks in opposition to Aquila's Back 40 project, comparing it to resource extraction from indigenous lands worldwide. (Video © and courtesy Emilio Amador Reyes)

Guy Reiter asked the people wearing blue shirts for solidarity in protecting the water to stand. He expressed the Menominee people's resolve to resist exploitation and asked the DEQ to apply environmental justice to tribal interests. Reiter also said he brought more than 200 letters, many from Menominee youth, to deliver to the DEQ.

"Our will will not be broken," Reiter said. "We'll stand on the shoulders of our ancestors that are in the ground that Aquila wants to dig up out of the ground."

Guy Reiter, after joking about the meaning of his name, states the tribe's determination not to give up. (Video © and courtesy Emilio Amador Reyes)

Crystal Chapman Chevalier, a Menominee tribal legislator, said her comments were as an individual tribal member. She addressed the DEQ's past failures to protect Michigan's environment:

Crystal Chapman Chevalier challenges the DEQ to do their job of protecting "Pure Michigan." (Video © and courtesy Mark Doremus)

Kathleen Heideman of Marquette, Upper Peninsula Environmental Coalition (UPEC) board member, offered an example of fundamental problems with the Aquila’s feasibility analysis. UPEC, through their Mining Action Group, had hired two independent technical reviewers to study the wetland permit application.

One reviewer, the Center for Science in Public Participation, stated the following in their report: "The mining permit and wetland permit are inextricably linked. The location and size of proposed mine site facilities as presented in the November 2017 Wetland Permit Application are different from those presented in the Mining Permit Application, and pose risks to wetlands that have not been analyzed."**

Kathleen Heideman of UPEC cites an example of technical problems with the wetlands permit found by an independent reviewer. She also asks DEQ to deny the permit and submits reports by two independent technical reviewers.**(Video © and courtesy Mark Doremus)

Al Gedicks, executive secretary of the Wisconsin Resources Protection Council, spoke about methylmercury, noting its absence in the 2,650-page application. He explained how Aquila's project as proposed would add to bioaccumulation of methylmercury, a neurotoxin, which would impact fish, wildlife and human health.

Al Gedicks, executive secretary of the Wisconsin Resources Protection Council, points out some of the harmful effects of methylmercury, noting the absence of any mention of the neurotoxin in Aquila's proposal. (Video © and courtesy Mark Doremus)

Raj Shukla, executive director of River Alliance of Wisconsin, a water advocacy group, pointed out the inconsistencies and unknowns in Aquila's proposal

Raj Shukla, executive director of River Alliance of Wisconsin notes inconsistencies in Aquila's wetland permit application. He says the true size and scope of the project is not clear. Shukla says his organization joins with those opposing both the wetlands permit and the project itself. (Video © and courtesy Mark Doremus)

While most of the speakers at the hearing opposed the permit, a few did speak in support of it.

Tony Retaskie of the Upper Peninsula Construction Council asked the DEQ to permit Aquila to go forward with the mine because of the need for "family sustaining jobs."

Lois Ellis, Dickinson Area Economic Development Alliance director of economic development, said the Alliance urges approval of Aquila's latest project application and they expect DEQ to do a careful review of the application.

Steve Casey, DEQ Water Resources Division Upper Peninsula District supervisor, who conducted the hearing, asked the crowd to be respectful of all speakers.

"I was very pleased that the crowd was respectful," Casey told Keweenaw Now.

He said 88 people spoke with a three-minute limit, but there was not enough time to hear from 45 others who had filled out cards with their intention to speak. He noted the frequent applause, mostly for those opposing the project, took time from those who didn't have a chance to speak before the hearing ended at 10 p.m.

"It may have intimidated some with different viewpoints," Casey said.

He noted some speakers handed in their comments and there may have been others who handed in written comments even though they did not speak.

Today, Feb. 2, 2018, is the deadline for written comments on the Aquila application for the permit that includes Part 303 Wetlands and Part 301 Inland Lakes and Streams.

Casey was assisted at the front table by Jarrod Nelson, DEQ environmental analyst, and Kristi Wilson, DEQ environmental quality specialist.

Ginny Pennala, DEQ Water Resources Division supervisor of the Resource Unit for the Upper Peninsula, attended the hearing but was not seated at the front table.

Pennala said DEQ encourages people to submit written comments on the MI Waters Web link here. Note that the link probably will not be available after today, Feb. 2.

Kristi Wilson is the main DEQ reviewer of this application since she has been studying it for some time, Pennala explained, noting the review would be a team effort.***

However, this application requires oversight by the Environmental Protection Agency (EPA) section 404 of the Clean Water Act.

"On a project of this magnitude the EPA has mandatory oversight," Pennala told Keweenaw Now this week.

The EPA also relies on the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service in this review under the Clean Water Act requirements.
Menominee Tribe files lawsuit against EPA, Army Corps

On Jan. 22, the day before the hearing, the Menominee Indian Tribe of Wisconsin filed a lawsuit to address the failure of the EPA and the Army Corps to comply with Clean Water Act requirements concerning jurisdiction and permitting for dredged or fill material in waters of the United States.

Michigan is one of two states (the other is New Jersey) where the EPA delegates regulation of wetlands to the state except in the case of projects that come under certain categories of the Clean Water Act (such as this one) that require mandatory federal oversight.

However, the position of the Menominee Tribe is that the federal agencies should not merely review the project but should take control of the permitting process for the Clean Water Act 404 permit.

During the Jan. 23 hearing, Gary Besaw, chairman of the Menominee Nation, referred to the recent lawsuit against the EPA and the Army Corps.

"The Menominee believe that under the Clean Water Act the State of Michigan cannot assume Clean Water Act permitting authority for the Menominee River or its wetlands. The way  DEQ is proceeding in the permit application is contrary to the public's interest, and in this entire process should be placed on hold pending the outcome of the federal litigation filed by the Menominee yesterday."

Janette Brimmer of Earth Justice, one of the attorneys representing the Menominee Tribe in their lawsuit, told Keweenaw Now that this litigation deals only with the federal Clean Water Act Section 404 permit. Under the Clean Water Act, certain waters cannot be delegated to a state because of interest beyond a certain state.

"If the state has a separate permit," Brimmer said, "it can exercise its state-level jurisdiction on state law matters, but it doesn't invoke the same regulations and legal requirements as if the (Army) Corps and the EPA were in control of the process."

One difference between the state permit and the federal Clean Water Act 404 permit is that the National Historic Preservation Act would be invoked, she explained. It requires a formal consultation process with the tribe.

As the Menominee Tribe states in the lawsuit (paragraph 11), "Since time immemorial the Menominee Tribe has lived, hunted, fished, gathered, farmed and otherwise occupied and used the ceded lands, including the lands around the Menominee River. The Menominee Tribe has also practiced cultural and religious ceremonies in reservation lands, ceded lands, and included lands around the Menominee River. The Menominee Tribe’s connection to the Menominee River is existential as the Menominee Tribe’s origin story takes place at the mouth of the Menominee River."*

Brimmer also noted that the Army Corps of Engineers said in 1979 that the Menominee River was a water used in interstate commerce.

Paragraph 55 of the lawsuit states the following: "While the Clean Water Act allows for EPA to approve the delegation of some Section 404 permitting to a state, 33 U.S.C. § 1344(g), permitting in waters and their adjacent wetlands that are used, or could be used, in their natural condition or with reasonable improvement for transport in interstate commerce is not and cannot be delegated to a state."*

Interstate commerce can include fishing, recreation, industrial uses, etc., for more than one state. The Menominee River forms a boundary between Wisconsin and Michigan.

"The 404 (federal permit) is necessary to finalize the applicant's current proposal," Brimmer added.

According to the lawsuit, based on the Clean Water Act, the EPA and the Army Corps of Engineers are supposed to take control  of the permitting process for wetlands and the river.

Keweenaw Now has contacted the EPA, but so far they have not replied to our questions. Watch for a possible update.

Editor's Notes:

More videos of individual speakers testifying at the Jan. 23 hearing can be found on the Back Forty Film Facebook page, for those who have a Facebook account. Many thanks to our contributors -- Emilio Amador Reyes for his photos and videos, Marisa Van Zile for photos and information, and Mark Doremus for uploading videos we requested to YouTube for our readers' access.

* Click here to access the lawsuit filed on Jan. 22, 2018.

** Click here for the independent report from the Center for Science in Public Participation. A second technical review, by Dr. Tom Myers, independent hydrologist, concerned impacts to the wetlands in Aquila's project area. The report on his review states, "Dr. Myers’ analysis involved an assessment of the predicted drawdown on wetlands and a review of the groundwater modeling of those impacts. One concern includes how the modeling conceptualized the wetlands, meaning the level of connectivity with surface water. Another concern includes the prediction of the extent of the drawdown, as modeled." Click here for Dr. Myers' technical review.

*** On Jan. 19, 2018, DEQ's Kristi Wilson sent a letter to Aquila requesting clarification of certain discrepancies in their groundwater technical information. You can access this letter and other documents related to the application on the DEQ's MIWaters site. Click here and then click on Documents. Select the document (listed by date) to download. Warning: You may need WinZip to open the document. Links to some documents can also be found here.

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