May 2018 Newsletter
May 10, 2018
Dear WRPC Member and Friends of the Menominee River,
On May 3, 2018, in a major reversal of their previous recommendation to reject Aquila’s wetland permit (letter of March 8, 2018) for the Back Forty project, the EPA informed Michigan’s Department of Environmental Quality (MDEQ) that “we believe that there is a ready pathway for the resolution of EPA’s remaining objections through MDEQ’S inclusion of specific conditions in a final permit issued by June 6, 2018.”
EPA objections are “resolved” after April 16, 2018 meeting with Aquila
In EPA’s March 8, 2018 letter to MDEQ, the EPA, the U.S. Army Corps of Engineers and the U.S. Fish and Wildlife Service submitted seven pages of single spaced comments about why Aquila’s wetland permit application did not comply with the Clean Water Act and should not be issued a permit for the project as proposed. Among the deficiencies in Aquila’s application was the failure to support the assertion that the proposed project would likely not impact the cultural and archaeological resources of the Menominee Nation for the entire expanded project site. However, in EPA’s May 3 letter to MDEQ, there is no mention of how Menominee cultural and archaeological resources will be unharmed by the project.
Erroneous assumptions and arbitrary data to support predetermined conclusions
Aquila’s speedy response to extensive EPA objections to their permit raised serious questions for Dr. Tom Myers, a hydrologic consultant retained by the Mining Action Group of the Upper Peninsula Environmental Coalition and Menominee River Front 40. Dr. Myers reviewed Aquila’s response to the EPA and concluded that Aquila has offered a re-assertion of previous material without additional evidence. Dr. Myers concluded that Aquila made fundamental erroneous assumptions and has used arbitrary data to ensure that their modeling supports predetermined conclusions. For example, wetlands cannot be simultaneously perched (above the water table) and tied to groundwater.
Wetland impacts increase from 28 acres to more than 42 acres!
Aquila’s wetland permit application underestimated the total acreage of wetland impacts. The EPA’s March 8 letter questioned the accuracy of Aquila’s estimate of wetland impacts. Aquila now admits that an additional 14 acres of wetlands will be affected. This is a significant change from the original wetland permit application and should require a new permit application. Aquila expects that these changes will simply be incorporated into the wetland permit. It is unclear whether MDEQ will go along with this without an opportunity for public comment on the environmental consequences of such a significant change in wetland impacts.
Judge overturns DNR permit for controversial Wisconsin sand processing plant
In a case involving a permit to destroy a far smaller acreage of wetlands (16.6 acres), a judge recently ruled that the Wisconsin Department of Natural Resources improperly granted Meteor Timber permits to destroy western Wisconsin wetlands to make way for a sand processing plant (https://www.jsonline.com/story/news/local/wisconsin/2018/05/04/judge-invalidates-dnr-permit-wisconsin-sand-processing-plant/581688002/). In a major victory for environmentalists and the Ho Chunk Nation, Administrative Law Judge Eric Defort said it was “abundantly clear that the DNR did not have the necessary information” to approve a key wetlands permit. The same argument might well apply to the even larger wetland impact that has not been evaluated by the MDEQ.
Wisconsin counties urged to adopt mining regulations by July 1, 2018
With the repeal of Wisconsin’s Prove It First Mining Moratoriun Law, the state of Wisconsin now claims that it has the authority to assert that counties have until July 1, 2018 to enact mining regulations, mining ordinances or zoning ordinances to regulate metallic sulfide mining. We would assert that state preemption of counties passing mining bans is not justified or legally valid when such preemptive actions violate county elected officials’ duty (and oath of office) to protect “the health, safety and welfare” of their communities. Nor is a state imposed deadline on such passage valid for the same reason. Even the bill’s chief author, Sen. Tiffany told a reporter that “You have to get that social license [community acceptance] in order to mine.” He said he didn’t include any language in the bill pre-empting local governments inherent right to protect their citizens (https://dailyreporter.com/2017/11/20/local-officials-considering-own-mining-regulations/
Marinette County proposes a temporary moratorium on permitting metallic mines
On May 8 the Marinette County Development Committee has a public hearing on a proposed county ordinance for a temporary moratorium on permitting metallic mining. The moratorium is not intended to prohibit mining. It is designed to give the county time to get some facts necessary to regulate any mining activity.
Can metallic sulfide mining be regulated?
A recent literature review for the U.S. Fish and Wildlife Service concludes that permitting large scale surface mining in sulfide-hosted rock with the expectation that no degradation of surface water will result due to acid generation imparts a substantial and unquantifiable risk to water quality and fisheries (http://www.pebblescience.org/pdfs/Final_Lit_Review_AMD.pdf)
Community Rights Ordinances Can Prevent, Rather than Regulate Destructive Mining Activity
Since the early 2000s, about 200 communities and counties in nine states have passed legally groundbreaking and locally enforceable Community Rights ordinances that ban harmful corporate activities and protect the community’s rights to govern itself.
In November 2014 residents of Mendocino County, California passed the Community Bill of Rights Ordinance by 67% of the county vote. The Ordinance bans fracking, dumping of frack waste and protects their water from being used for fracking anywhere in the state. Mendocino County became the first California community to adopt a Community Bill of Rights, placing their interests above corporate interests. Residents see the enactment of this ordinance as the first step in asserting their right to local self-government, and a rejection of the idea that their community will be a sacrifice zone for corporate profits.
Here is what Paul Cienfuegos, the founding director of Community Rights US (http://CommunityRights.US) had to say about the July 1st deadline for enacting zoning and mining ordinances after the repeal of Prove It First:
“This state-imposed deadline is also one that municipalities and counties have every right to refuse to abide by. Local elected officials need to start acting as if they understand that they are the duly elected representatives of The People of that community or county. They’re not there to salute every time the state takes some of their local power and authority away. Some day the local elected officials will start to understand this, and act upon that understanding, as hundreds of elected officials from those 200 communities and counties already do, where Community Rights ordinances have already been passed.”
“Dark money” behind the repeal of Prove It First Mining Moratorium
The effort to repeal Wisconsin’s landmark Prove It First Mining Moratorium Law was a profound assault on the democratic process initiated at the grassroots level that led to bipartisan support for the legislation in 1998. The repeal campaign, led by Senator Tom Tiffany (R-Hazelhurst) had the support of the most powerful corporate interests in and out of the state, including Wisconsin Manufacturers and Commerce, the state’s largest business group, Aquila Resources, a Canadian mining company, and Americans for Prosperity, a dark money electioneering group created by the billionaire brothers Charles and David Koch. (https://urbanmilwaukee.com/2017/11/10/campaign-cash-new-gop-pro-mining-group-ran-attack-ads/)
The Community Rights movement is a reminder that government is required to serve us. The Wisconsin Constitution is clear on this point. Article 1, Declaration of Rights states:”governments are instituted, deriving their just powers from the consent of the governed.”
Contrary to the dire predictions of attorneys for local governments, the vast majority (95%) of Community Rights Ordinances have never been challenged in court. Faced with the prospect of permanently contaminated drinking water supplies or a possible court challenge to local self-government, which is the riskier possibility? 200 communities and counties in nine states have decided they’d rather face the possible lawsuit.
Stay tuned,
Al Gedicks, Executive Secretary
P.S. And check out Aquila’s response to Menominee Water Protectors and our rebuttal in Green America.