March 2021 Newsletter
March 17, 2021
Dear WRPC Member and Friends of the Menominee River,
In a major victory for water protectors, a Michigan Administrative Law Judge has denied a disputed Wetlands Permit for Aquila Resources’ proposed Back Forty metallic sulfide mine in an exhaustive 76-page decision issued on January 4, 2021. The Michigan Department of Environmental Quality (now the Department of Environment, Great Lakes, and Energy or EGLE) provoked immediate controversy when it approved Aquila’s Wetlands Permit in 2018, over the objections of the agency’s own scientific staff who recommended to deny the permit.
The permit was contested by three petitioners, including the Menominee Indian Tribe of Wisconsin, the grassroots Coalition to SAVE the Menominee River and Tom Boerner, an adjacent landowner.
Aquila failed to disclose extent of wetland impacts
The Wetlands Permit is one of several permits necessary before any mine construction can go ahead. In a stunning rebuke to the leadership of EGLE, Judge Daniel Pulter ruled that Aquila’s permit application failed to disclose the extent of wetland impacts. The scientific testimony in the contested case revealed a consistent pattern of Aquila’s manipulation of scientific data to conceal significant negative impacts to wetlands from the proposed mine.
The permit would have allowed Aquila to destroy wetlands of the Menominee River watershed in order to construct and operate an open-pit sulfide mine, waste storage dam and mill. Wetland impacts included direct and indirect losses due to excavation, placing of fill, or building parts of the facility on top of wetlands, removing groundwater, permanently changing hydrology, impairing wetland ecosystems, and contaminating the surrounding watershed with toxic dust from mining operations, and acid mine drainage.
Aquila’s application was not simply flawed, but incompetent
Wetlands are strictly protected under state and federal law. As Kathleen Heideman from the Mining Action Group has pointed out, before wetlands can be destroyed, Aquila had to demonstrate that the impacts are unavoidable. Judge Pulter concluded that “Aquila failed to demonstrate that there are no feasible and prudent alternative locations and methods because it did not proffer evidence of how it had re-designed its site plans with a view toward reducing wetland impacts…Therefore, Aquila is not entitled to a permit in this case.”
“A probable negative effect” on Menominee Sacred Sites
While Aquila says that the proposed mine will not encroach on sacred sites, the judge’s ruling established that the Back Forty project would have a “probable negative effect” on the sacred sites and cultural resources of the Menominee Nation.
“The Judge’s decision confirms the Menominee Tribe’s concerns about the threats of the Back Forty Mine project to the water, human health, downstream communities, the environment, and our Menominee cultural sites,” said Joan Delabreau, the tribe’s chairwoman.
Aquila’s Appeal of Judge Pulter’s Decision
While the permit reversal is a major setback to Aquila’s mine permitting timetable, it is not the end of the project. Aquila has appealed the wetland decision to the Michigan Environmental Permit Review Commission. The three-person panel of experts has the authority to adopt, remand, modify, or reverse the judge’s decision. The first meeting of the panel was on March 3. The next meeting is scheduled for June 15. Dale Burie, president of the Coalition to SAVE the Menominee River, said “We’ve already won the contested case. All we need to do is defend Judge Pulter’s decision.”
While the appeal is in process, Aquila has requested, and has been granted, a stay of the proceedings of the contested case related to the Part 632 Amended Mine Permit. Aquila also requested a 60 day delay for EGLE’s request for additional information on the company’s dam safety permit application.
The denial of Aquila’s wetland permit has resulted in numerous problems for the project, including permit delays, additional costs and the replacement of Barry Hildred as President and CEO of Aquila by Guy Le Bel. The unanticipated additional costs have necessitated an immediate advance of $100,000 from Osisko Gold Royalties with an additional $2.4 million when Aquila has secured equity financing.
“Call to Action” to Oppose Aquila’s Unsafe Tailings Dam Design
Contrary to recent press on the wetlands permit decision, the wetlands permit is NOT “the last of four permits needed to allow construction of the mine to begin” (https://peshtigotimes.net/index.php?id=41305) Aquila has submitted their second Dam Safety Permit Application to EGLE. Aquila is proposing to use the upstream tailings dam design to contain millions of tons of toxic wastes next to the Menominee River. This is the same design that was implicated in the tailings dam collapse in Brumadinho, Brazil that killed 270 people in January 2019.
Please register your opposition to this unsafe dam design by going to the Coalition website and clicking on the blue button: www.jointherivercoalition.org
While you’re there, check out my powerpoint on the Back Forty Mine on YouTube.
You can also register for a panel discussion on “Indigenous-Led Resistance to Extraction Industries” on March 27 by going to: http://www.wnpj.org/node/12158
Stay tuned,
Al Gedicks, Executive Secretary
