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Saturday, March 31, 2018

County Road 595 Appeal concludes

This wetland in the proposed CR 595 corridor is one of many sensitive areas that would be impacted if the proposed road were built. (Keweenaw Now file photo © and courtesy Jessica Koski)

By Yellow Dog Watershed Preserve
Posted on their Web site March 23, 2018*
Reprinted here with permission.

MARQUETTE -- The battle between the U.S. Environmental Protection Agency and the Marquette County Road Commission concluded on March 20th in the U.S. 6th Circuit Court over County Road 595, the proposed road leading from Eagle Mine to Humboldt Mill. For those who need a refresher, the permit for CR 595 was submitted to the MDEQ (Michigan Department of Environmental Quality) in 2012 and as part of the review process, the U.S. EPA issued objections to the project based on the Clean Water Act. Long story short, the MDEQ did not issue the permit and the process then transferred to the U.S. Army Corps of Engineers.

The Road Commission then decided to file suit against the U.S. EPA with the crux of the lawsuit over the their perception that the EPA’s objections were "arbitrary and capricious" and that they "exceeded their authority" in the process. After review in District court, it was determined that the court cannot even decide on the case because, according to the Administrative Procedures Act, you cannot bring suit against a decision unless it is considered a "final agency decision." The case was dismissed.

The Road Commission then teamed up with a lobbying group called Pacific Legal Fund, who paint themselves as the champions of the little guy against the Goliath of government. They decided to appeal the decision. Oral argument transpired in Circuit court, from which you can read transcripts thanks to journalist Louis Galdieri.** Ultimately Circuit court agreed and affirmed the District court’s decision. The EPA’s objections were not final agency decisions and therefore not reviewable because the permitting process could have continued, but it was abandoned by the Road Commission.

It remains to be seen what the next step is for the Road Commission. In an interview, Road Commission manager Jim Iwanicki said that they have options including asking the court to look at specific things again, proceeding with the case to the U.S. Supreme Court, or dropping the case. It is also a possibility that the permitting process could continue under the authority of the U.S. Army Corps of Engineers. While the road isn’t going to be built anytime soon, the future is still unclear. The Yellow Dog Watershed Preserve still strongly opposes building a mine road through this remote and wild area. Enough damage has already occurred from mining related activities and we don’t need anymore!

* Click here for this and other articles by the Yellow Dog Watershed Preserve.

** Click here to read Louis Galdieri's series of articles on the CR 595 controversy.

Monday, March 26, 2018

EPA objects to issuance of Aquila Back Forty Wetland Permit

Posted March 15, 2018, by the Mining Action Group on their Web site. Reprinted in part with permission.

The Aquila Back Forty property, as viewed from Wisconsin side of the Menominee River. A large open pit sulfide mine is proposed for this site. (March 10, 2018, photo © Deborah Skubal and courtesy Mining Action Group.)

STEPHENSON, Mich. --The Front 40 Environmental Group and the Mining Action Group (MAG) of the Upper Peninsula Environmental Coalition (UPEC), along with their regional environmental allies and fishing organizations, applaud the Environmental Protection Agency’s (EPA) significant objections to the issuance of the Aquila Back Forty Wetland Permit.

The EPA’s objections were announced in a March 8, 2018, letter to the Michigan Department of Environmental Quality (DEQ).* Federal concerns are detailed in a supporting document, representing the combined comments of the EPA, the U.S. Fish and Wildlife Service (USFWS) and the U.S. Army Corps of Engineers. The EPA’s letter identifies seven primary areas of concern regarding the wetland application, and directs the DEQ to resolve those concerns within 90 days.

Sixty Islands section of the Menominee River, riparian wetlands located approximately 200 feet from the proposed Project Boundary. Aquila Back Forty Mine site. (Jan. 9, 2018, photo © Kathleen Heideman and courtesy Mining Action Group.)

In conclusion, the letter states, "This letter constitutes a federal objection to the issuance of a permit for this project. Pursuant to CWA (Clean Water Act) § 404 (j) and the CWA 404 MOA Section 5(d)-(e), the MDEQ has 90 days from the date of this letter to work with the applicant to resolve the issues raised above or deny the permit. The MDEQ may request a public hearing on EPA's objection. If the State does not satisfactorily resolve this objection within 90 days after the date of this letter, or within 30 days after the completion of the hearing if one is held, authority to process the CWA Section 404 permit transfers to the Corps (U.S. Army Corps of Engineers) by operation of law."*

* Click here to read the EPA's March 8 letter to DEQ.

Click here to read the full article from the Mining Action Group (formerly Save the Wild U.P.), stating the EPA objections and reactions to their decision from several environmental and fishing groups.