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EPA Objects to the Issuance of Aquila Back Forty Wetland Permit

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STEPHENSON, MI — 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 8th 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. If not resolved in that time, DEQ is directed to deny the permit for the mine.

EPA’s objections include:

  • Aquila’s failure to provide a complete description of the project, including a final site plan showing the final location of key features of the project, a proposed power plant, planned underground mining facilities, and stormwater and mining water management facilities.
  • Lack of relevant information on the stability and integrity of the mine pit to be located on a bluff above the Menominee River, including an analysis of slope stability and erosion of the river bank.
  • The application “states that the project will not adversely affect water quality of the Menominee River but does not explain how the project will be managed to ensure discharges will meet water quality standards, including sufficient monitoring locations, minimization measures, and adaptive management procedures to prevent leaching of toxic compounds from mine storage facilities and from the mine pit into the River.”
  • Aquila’s failure to adequately characterize secondary impacts to wetlands and “lacks information regarding the extent of wetlands that will be impacted by the project and how these wetlands will be affected by the proposed project’s Menominee River drawdown of some 125,000 gallons per day.”

Critically, the EPA found that Aquila failed to provide adequate support for their determination that “offsite upland alternatives for some mine features (e.g., tailings storage) are not practicable”, and that they did not provide “needed information to determine whether some 500 acres of wetlands and uplands that were selected for preservation meet statutory requirements to be used as wetland and stream mitigation.”

Unless Aquila Resources satisfactorily resolves all of the EPA’s objections within 90 days, the DEQ cannot issue a Wetlands Permit for the Back Forty Project.

The Michigan DEQ continues their review of the Aquila Back Forty Wetland application, recently sending a letter to the company asking them to respond to more than 34 pages of detailed public comments, selected and synthesized from approximately 3,420 total written comments received on the Wetland application by the DEQ’s Water Resources Division. Aquila was asked to respond by March 23rd. http://bit.ly/DEQ-to-Aquila-PublicComments

“We are thrilled to see EPA leading the charge to protect Michigan’s world-class waters and habitat from the potentially devastating impacts of the Aquila mine development,” stated Cheryl Kallio, Associate Director for Freshwater Future. “We are proud to support the efforts of groups like Front 40 and UPEC Mining Action Group, who are leading the charge to evaluate this complex permit application, helping ensure decision makers within these federal agencies have the facts they need to do their job protecting Michigan’s wetlands.”

“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 by Deborah Skubal.

“We’ve opposed the Back Forty project since 2003. Fifteen years later, we still object. We are fighting to protect the Menominee River from this disaster-waiting-to-happen. We are encouraged by EPA’s objections to the Wetland permit, and we expect to see this dangerous permit denied,” said Ron Henriksen, spokesperson for the Front 40 Environmental Fight.

According to a statement released by Great Lakes Council of Fly Fishers International President Dennis O’Brien and Conservation Chair Dave Peterson, “The Great Lakes Council is pleased that the U.S Environmental Protection Agency recognizes the significant deficiencies in the Aquila application. This mine poses a threat to the health of the Menominee River and its fishery. The Council is pleased to support the wetlands analysis submitted as part of the permit review process.”

If fully permitted, the Back Forty would be a large open-pit sulfide mine on the bank of the Menominee River, the largest watershed in the Upper Peninsula of Michigan, 100 feet from the water. Aquila proposes to process ore on-site, using cyanide and other chemicals. Tailings waste will be stored permanently at the site. Geochemical testing shows that most of the rock is “reactive” or capable of producing acid mine drainage (AMD) when exposed to air and water. AMD devastates watersheds. It is difficult and expensive to remediate, and may continue leaching from the tailings into surface and groundwater for hundreds or thousands of years.

Under Michigan regulations, Aquila bears the burden of demonstrating that either (a) the proposed activity is primarily dependent upon being located in the wetland, or (b) there are no feasible and prudent alternatives, and must use all practical means to minimize impacts to wetlands. An independent review of the Wetland permit by Dr. Kendra Zamzow of the Center for Science in Public Participation concludes, “The mining permit and wetland permit are inextricably linked.” The Wetland Permit application, however, relies upon a facilities design for the mine site which is significantly different from the design presented in the Mining Permit Application, and “pose risks to wetlands that have not been analyzed.”

“Aquila seems to present different information depending on its audience. It applied for permits for an open pit mine operation of 7 years, while telling investors that the project will include underground mining and operate for 16 years. Our review found that Aquila collected inadequate data on groundwater flow and used textbook values, off-site data, and estimated values for certain parameters in its groundwater models. Based on flawed and inaccurate models, Aquila makes the ridiculous claim that this mine will have ‘NO IMPACTS’ on wetlands just outside the project boundary, the adjacent Ecological Reference Area, and wetlands that straddle the property line,” said MAG member Steve Garske.

“We are encouraged by the diligent approach to qualifying and quantifying the serious issues involved with the Aquila application. The combined comments of the EPA, USFWS, and the Army Corps of Engineers mirror many of our own concerns about this mining company’s plans. As fisher folks and as individuals, we are working to protect water quality for our safe enjoyment of the Menominee waterway – and Lake Michigan. The affected parties are justifiably anxious about the significant environmental impacts effects of the Back Forty mine. We urge environmental regulators to be extremely wary in dealing with Aquila. We hope the entire wetland application gets turned down – flatly,” said Jerry Pasdo, president of the Wisconsin Smallmouth Alliance.

“The Back 40 proposal poses serious risks to drinking and surface water in the region and therefore requires thorough scrutiny.  We are especially concerned about impacts to the ancient sturgeon population in the Menominee River and Lake Michigan that many partners have invested in restoring over the last few years,” said Allison Werner of the River Alliance of Wisconsin.

“EPA’s objections align with our concerns. The Wetland permit application is shoddy, full of untested assumptions about wetland hydrology. The whole scheme hinges on a facility design for the Back Forty mine that no one has reviewed, much less approved,” said Kathleen Heideman, a member of MAG.

Front 40 and the Mining Action Group of the Upper Peninsula Environmental Coalition expect that  the Aquila Back Forty Wetland Permit application, after thorough examination by federal and state regulators, must ultimately be denied.

“Aquila seeks to destroy almost thirty acres of wetlands in order to build a sulfide mine on the bank of the Menominee River. Their permit application is clearly unlawful. This is an alarming proposal, given the proximity of wetlands to the river. The total wetland impacts are underestimated due to flawed groundwater modeling, and additional years of underground mining which would expand the drawdown, with devastating effects on the surrounding ecosystem,” said Heideman.

A diverse coalition of fishing groups, residents, tribal members and environmental groups are united in their opposition to the Aquila Back Forty project. Downstream communities are worried about potential impacts to drinking water and tourism, and have passed nearly two dozen resolutions against the project. “The Menominee is a valuable resource that shouldn’t be damaged or destroyed, which is why I’m working hard to protect it from the proposed Back Forty mine. I don’t want to lose the river to a polluting – sulfide mine,” said Dick Dragiewicz, an avid fisherman.

“Open water on the Menominee River, near the proposed Aquila Back Forty sulfide mine.” Photo by Lea Jane Dale, Coalition to Save the Menominee River.

Fundamental objections to the Aquila Back Forty project remain unresolved. While the Wetlands permit has been under review, two contested case petitions have been filed: one by an adjacent landowner, and another by the Menominee Indian Tribe of Wisconsin, supported by Earthjustice.

“Wetlands are strictly protected under both state and federal law. Before wetlands can be destroyed, Aquila needs to demonstrate that impacts are unavoidable. They failed that test. This permit cannot pass muster with environmental regulators,” said Heideman.

“I was amazed by the EPA’s strong letter in defense of wetlands. Aquila’s mine threatens the cultural and natural resources of the Menominee people, and a globally unique habitat known as the Shakey Lakes Savanna. The Menominee River is the worst possible place for an open-pit sulfide mine. Aquila’s plan for on-site milling is especially dangerous, and would needlessly destroy wetlands. Issuing the Back Forty Wetland Permit would violate the Clean Water Act,” said Horst Schmidt, president of the Upper Peninsula Environmental Coalition.

SUPPORT

Independent review of the Aquila Back Forty Wetland permit was made possible by the generous support of groups and individuals concerned about the future health of the Menominee River. Working collaboratively, the Mining Action Group of the Upper Peninsula Environmental Coalition and the Front 40 secured grants and donations from Freshwater Future, Superior Watershed Partnership, the Western Mining Action Network, DuPage Rivers Fly Tyers (DRiFT), Northern Illinois Fly Tyers (NIFT), Badger Fly Fishers, M&M Great Lakes Sport Fisherman, Wisconsin Smallmouth Alliance, Fly Fishers International, Great Lakes Council of Fly Fishers International, the Emerick Family Fund, and from many individual fishing enthusiasts throughout the Great Lakes area.

“Sixty Islands section of the Menominee River, riparian wetlands located approximately 200 feet from the proposed Project Boundary. Aquila Back Forty Mine site, January 9, 2018.” Photo by Kathleen Heideman, Mining Action Group.

DOWNLOAD FILES

 

Mission of the Upper Peninsula Environmental Coalition

Founded in 1976, the Upper Peninsula Environmental Coalition’s purpose remains unchanged: to protect and maintain the unique environmental qualities of the Upper Peninsula of Michigan by educating the public and acting as a watchdog to industry and government. UPEC is a nonprofit, registered 501(c)(3) organization. For more information, call 906-201-1949, see UPenvironment.org, or contact: upec@upenvironment.org.

Mission of the Mining Action Group
The UPEC Mining Action Group (MAG), formerly known as Save the Wild U.P., is a grassroots effort to defend the clean water and wild places of Michigan’s Upper Peninsula from the dangers of sulfide mining. Contact the Mining Action Group at info@savethewildup.org or call (906) 662-9987. Learn more about the Mining Action Group at miningactiongroup.org.

Mission of the Front 40 Environmental Fight

The Front 40 is a grassroots organization that was formed in early 2003 in response to the threat of a metallic mineral mine potentially being developed on the shores of the Menominee River in Lake Township, Michigan. It is the principal objective of the Front 40 Environmental Group to ensure that metallic sulfide mining operations are not allowed to adversely impact our rivers, lakes, groundwater and lands. Learn more about the Front 40 group: menomineeriver.com

Speaking Out on Behalf of Wetlands

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FRIENDS, THANKS TO ALL WHO SPOKE OUT ON BEHALF OF WETLANDS!

If you weren’t able to attend this week’s Public Hearing on the Aquila Back Forty Wetland Permit, you missed an evening of passionate, accurate testimony. As reported locally by the Eagle Herald: “People came from both sides of the river… they spoke on methylmercury, wetlands degradation, pollutants, preserving cultural sites, tourism, fishing and hunting industries, ecosystems, biodiversity, unborn children and future generations and local interest versus foreign gain. The common thread was their passion; and their pursuit was to voice their opposition to the Back Forty Mine project.”

Truly inspiring! Estimates put the crowd at 400-500 people. Roughly 100 signed up to speak, with folks still waiting for their names to be called when the hearing ended after four hours. Public comment was overwhelmingly opposed – nearly everyone asked the Michigan Department of Environmental Quality (DEQ) to deny this permit.

It’s not too late — submit your own comments on the Aquila Back Forty Wetland Permit  ➤

Meanwhile – on behalf of fishing groups and concerned citizens, the Mining Action Group of the Upper Peninsula Environmental Coalition and the Front 40 Environmental Group secured third party technical reviews of the Back Forty Wetland Permit. These technical reports have revealed errors and inconsistencies in Aquila’s claims: the hydrology review found that indirect impacts to wetlands caused by groundwater drawdown will be far greater than claimed by Aquila, and CSP2’s review found fundamental problems with the mine’s feasibility analysis, also known as the “Least Environmentally Damaging Practicable Alternatives” analysis. (“Red-Flag Review Finds Big Holes in Sulfide Mine’s Wetland Permit”). We’ve submitted these independent reports to the DEQ, and are making them available for your review:

  • Back Forty Wetland Permit – Technical Memorandum by Dr. Tom Myers
    http://bit.ly/Back40TMyers
  • Back Forty Wetland Permit – Red Flag Review by Center for Science in Public Participation, Dr. Kendra Zamzow and Dr. David Chambers
    http://bit.ly/Back40CSP2

As you know, the threat is real. More than 50% of Michigan’s historic wetlands have already been lost, according to a recent article by Michigan Department of Natural Resources. Wetlands are critical ecosystems, providing benefits such as water filtration, erosion and flood control, and essential habitat for a diverse array of species. Any damage to wetlands along the Menominee River would have a negative effect on downstream communities as well.

The deadline for written comment is February 2, 2018. Submit comments online, by email, or mail to: DEQ Upper Peninsula District Office WRD, 1507 W. Washington Street Marquette, MI 49855

Please join the Mining Action Group in urging the Michigan DEQ to deny this application  ➤

Review the Back Forty Wetland Permit and submit your comments today. 

Stay vigilant!

PS: Check out recent media coverage of the Wetland Permit hearing, and the Menominee Tribe’s Clean Water Act Lawsuit:

 

NOTE OF GRATITUDE

Independent technical reviews of the Aquila Back Forty Wetland permit were made possible by the generous support of numerous groups and individuals concerned about the future health of the Menominee River, including small grants and donations from Freshwater Future, Superior Watershed Partnership, the Western Mining Action Network, DuPage Rivers Fly Tyers (DRiFT), Northern Illinois Fly Tyers (NIFT), Badger Fly Fishers, M&M Great Lakes Sport Fisherman, Wisconsin Smallmouth Alliance, Fly Fishers International, Great Lakes Council of Fly Fishers International, the Emerick Family Fund, and individual fishing enthusiasts throughout the Great Lakes area.

 

Red-Flag Review Finds Big Holes in Sulfide Mine’s Wetland Permit

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STEPHENSON, MI  — The Front 40 Environmental Group and the Mining Action Group (MAG) of the Upper Peninsula Environmental Coalition (UPEC), working with regional environmental allies and fishing organizations, have secured an independent red flag review of Aquila Resources’ Back Forty Wetland permit application. The review was provided by the Center for Science in Public Participation (CSP2) which analyzes mining applications and provides objective research and technical advice to communities impacted by mining.

The Wetland application includes technical information regarding wetland hydrology, direct and indirect impacts to wetlands from the proposed sulfide mine and the on-site milling operation, a compensatory wetland and stream mitigation proposal, and more.  CSP2’s technical review was completed by Dr. Kendra Zamzow (Ph.D., Environmental Geochemistry) and Dr. David Chambers (Ph.D., Geophysics).

CSP2’s report flags significant omissions in Aquila’s permit application, especially concerns related to the Feasible and Prudent (Least Environmentally Damaging Practicable) Alternatives analysis, the fundamental test of any wetland permit:

  • “An environmental analysis needs to be conducted comparing the new proposed facility siting impacts on wetlands with the siting approved in the mining permit. The proposed single mine waste storage area is now two areas, and is much larger. The description of what is to be contained in each is inadequate and there is no description of the protections to be put in place.”
  • “The former site plan was discarded in part because waste would be ‘less dense’ than anticipated. There is no explanation for what is behind the anticipated change in waste material density that drove the need for the greater area required for waste disposal…”
  • “Given the terrain, direction of water flow, and proximity of valley wetlands and the River, this poses risks to wetlands – and aquatic resources in the River – that have not been analyzed.”
  • “Although there is no formal proposal for underground mining, it is reasonable and foreseeable. Therefore the full potential life of the mine should be considered when evaluating feasible and prudent alternatives that are the least damaging to wetlands.”
  • “An economic analysis needs to be conducted to determine the feasibility of moving the mill out of wetland areas.”
  • “It appears that most of the stream and wetland impacts might be avoided if the mine facilities could be moved further upland to a dryland site, possibly on other state lands.”

Under Michigan regulations, Aquila bears the burden of demonstrating that either (a) the proposed activity is primarily dependent upon being located in the wetland, or (b) there are no feasible and prudent alternative, and they must show they are using all practical means to minimize impacts to wetlands. 

According to CSP2’s review, “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.”

“This red flag review underscores our existing concerns. Aquila’s Wetland permit application is shoddy. It is mired in untested assumptions about wetland hydrology, and the whole scheme hinges on a facility design which nobody has reviewed, much less approved,” said Kathleen Heideman, a member of MAG.

Front 40 and the Mining Action Group will deliver CSP2’s review to the Michigan Department of Environmental Quality (DEQ) at the Public Hearing on January 23rd, and ask that key finding and recommendations be incorporated into the Wetland Permit review process.

“As soon as we saw the extent of the facility modifications, we asked the DEQ’s Office of Oil, Gas and Minerals to immediately require Aquila to apply for an amendment of the Back Forty Mine permit, or review the facility changes along with the Wetland permit – but they’ve refused to consider these questions until after the Wetland permit review is done,” said Heideman. [ See: “Significant Changes to Aquila Back Forty Mine” ]

“How many wetlands will be destroyed or impaired by the Back Forty? These wetlands are just in the way – Aquila will mine them out, or fill them in, or the surface water will be diverted, or they’ll be buried under mine waste tailings and waste rock storage areas. Are all of these wetland losses unavoidable? That’s the big question,” said Steve Garske, a member of MAG.

“Aquila Resources seeks to destroy wetlands in order to build a sulfide mine on the bank of the Menominee River. It is an alarming proposal, given the proximity of wetlands to the river, and concerns about the company’s plan to follow the orebody deeper underground. This site is complex, hydrologically, with wetlands on all sides, flowing in different directions. And the total wetland impacts may be significantly underestimated, since additional years of underground mining would greatly increase the groundwater drawdown,” said Heideman.

“Local residents are very frustrated, understandably. Aquila is using a bait-and-switch strategy. Since the facility’s impacts on wetlands are at the heart of the review, it would have made more sense to scrutinize all the proposed changes to the design first, before submitting the Wetland permit application. Aquila does everything backwards,” said Ron Henriksen, spokesman for the Front 40 group.

“Our goal is to identify errors and inconsistencies between data and Aquila’s predicted impacts to wetlands. We want to ensure that concerned citizens, stakeholders and environmental regulators are fully informed as to the true impacts of this permit,” said Nathan Frischkorn, a Fellow with the Mining Action Group.

A broad coalition of fishing groups, residents, tribal members and environmental groups are united in their opposition to the Aquila Back Forty project. Downstream communities are concerned about potential impacts to drinking water and tourism, and have passed resolutions against the project. Marinette County unanimously passed a resolution opposing the Back Forty; additional resolutions have been passed by the Menominee Indian Tribe of Wisconsin, the Oneida Nation, Keweenaw Bay Indian Community, Midwest Alliance of Sovereign Tribes, Amberg, Peshtigo, Porterfield, Sister Bay, Wagner, the City of Marinette, Door County, Oconto County, Outagamie County, Shawano County, Menominee County, and Brown County, which includes the city of Green Bay. After concerned citizens levied significant pressure on local officials, Menominee County became the first county in Michigan to pass a resolution opposed to the Back Forty mine.

“The Menominee River is my friend. It gives me and my fishing friends a lot of excitement when those bass, especially the big ones, are seen and when they strike at our flies. The Menominee is a valuable resource that shouldn’t be damaged or destroyed, which is why I’m working to protect it from the problems the proposed Back Forty mine would cause. I don’t want to lose the river to a polluting metallic sulfide mine,” said Dick Dragiewicz, an avid fisherman.

If fully permitted, the Back Forty will be a large open-pit sulfide mine on the bank of the Menominee River, the largest watershed in the wild Upper Peninsula of Michigan, only 100 feet from the water. Milling, using cyanide and other chemicals, and mine waste will be stored at the mine site, with some tailings waste remaining permanently. Most of the rock will be “reactive” or capable of producing acid mine drainage (AMD) when exposed to air and water. AMD devastates watersheds: it is difficult and expensive to remediate, and may continue leaching from the tailings for hundreds or thousands of years. American Rivers named the Menominee River to their list of “America’s Most Endangered Rivers” in 2017.

Suggested caption: “Sixty Islands section of the Menominee River, riparian wetlands located approximately 200 feet from the proposed Project Boundary of the Aquila Back Forty Mine site, January 9, 2018. Photo by Kathleen Heideman, Mining Action Group.”

Fundamental objections to the Aquila Back Forty project remain unresolved, and two contested case petitions have been filed over the Mining permit: one by an adjacent landowner, and another by the Menominee Indian Tribe of Wisconsin. The Back Forty Wetland application is now under review by the public, tribal stakeholders, environmental groups, Michigan DEQ, the Environmental Protection Agency, the U.S. Army Corps of Engineers, and the U.S. Fish and Wildlife Service.

“Wetlands are strictly protected under both state and federal law. Before wetlands can be destroyed, the company must demonstrate that wetland impacts are unavoidable. They’ve failed that test. I don’t see how this permit will pass muster with environmental regulators,” said Heideman.

“This mine threatens cultural and natural resources of the Menominee people, and the Shakey Lakes Savanna, a globally unique habitat. The Menominee River is the worst possible place for an open-pit sulfide mine. Aquila’s plan for on-site milling is especially dangerous, and needlessly destroys wetlands,” said Horst Schmidt, president of the Upper Peninsula Environmental Coalition.

Independent review of the Aquila Back Forty Wetland permit is made possible by the generous support of groups and individuals concerned about the future health of the Menominee River. Working collaboratively, the Mining Action Group of the Upper Peninsula Environmental Coalition and the Front 40 secured small grants and donations from Freshwater Future, Superior Watershed Partnership, the Western Mining Action Network, DuPage Rivers Fly Tyers (DRiFT), Northern Illinois Fly Tyers (NIFT), Badger Fly Fishers, M&M Great Lakes Sport Fisherman, Wisconsin Smallmouth Alliance, Fly Fishers International, Great Lakes Council of Fly Fishers International, the Emerick Family Fund, and individual fishing enthusiasts throughout the Great Lakes area.

PUBLIC PARTICIPATION

A Public Hearing for the Back Forty’s Wetlands, Lakes and Streams permit application will be held at 6 p.m. Central on January 23, 2018 at Stephenson High School, located at W526 Division Street, Stephenson, MI 49887. Note: due to public interest, the hearing has been moved to the school’s large gym. The deadline for submitting written comment is February 2, 2018.

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Mission of the Upper Peninsula Environmental Coalition
Founded in 1976, the Upper Peninsula Environmental Coalition’s purpose remains unchanged: to protect and maintain the unique environmental qualities of the Upper Peninsula of Michigan by educating the public and acting as a watchdog to industry and government. UPEC is a nonprofit, registered 501(c)(3) organization. For more information, call 906-201-1949, see UPenvironment.org, or contact: upec@upenvironment.org.

Mission of the Mining Action Group
The UPEC Mining Action Group (MAG), formerly known as Save the Wild U.P.,  is a grassroots effort to defend the clean water and wild places of Michigan’s Upper Peninsula from the dangers of sulfide mining. Contact the Mining Action Group at info@savethewildup.org or call (906) 662-9987. Learn more about the Mining Action Group at miningactiongroup.org.

Mission of the Front 40 Environmental Group
The Front 40 is a grassroots organization that was formed in early 2003 in response to the threat of a metallic mineral mine potentially being developed on the shores of the Menominee River in Lake Township, Michigan. It is the principal objective of the Front 40 Environmental Group to ensure that metallic sulfide mining operations are not allowed to adversely impact our rivers, lakes, groundwater and lands. Learn more about the work of the Front 40 group: menomineeriver.com

Wall Street Journal Prints ‘Alternative Facts’ By Lawyers Appealing CR-595

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Marquette County Road Commission v. Environmental Protection Agency

Regional environmentalists are dismissing as “wildly inaccurate” an article published in the Wall Street Journal (*1) on March 3rd, entitled “How a Michigan County Road Got Stuck in Regulatory Purgatory”. The piece, co-written by two lawyers working on the Marquette County Road Commission (MCRC) lawsuit against the Environmental Protection Agency (EPA) “relied on ‘alternative facts’ and amounted to little more than a highly-placed publicity stunt,” according to Kathleen Heideman, a Board member of the Upper Peninsula Environmental Coalition’s (UPEC) Mining Action Group.

The Wall Street Journal story plays fast and loose with the facts, according to Heideman, suggesting that the road proposal is a “shovel-ready” jobs initiative caught in “regulatory purgatory” and that the EPA was “vague” in their wetland objections, which ultimately “vetoed” a critical road building project.

In fact, the mine’s original (permitted) transportation plan matches the mine’s current haul route, and the “short cut” was only concocted after the mining company purchased the Humboldt Mill property for processing and refining their ore. The so-called “shovel ready” plan failed to clear the review of multiple federal agencies, including EPA, the U. S. Army Corps of Engineers, and the U. S. Fish and Wildlife Service. Previously, the mining company told regulators that they would use “existing infrastructure” and develop a rail depot north of the city of Marquette. “Groggy college students” would not have been endangered by Eagle Mine’s original plan.

“REGULATORY PURGATORY”?  A FACTUAL HISTORY OF CR-595

From the beginning, environmentalists have contended that the Road Commission was trying to build an industrial road – a mining haul road for the benefit of a single company – rather than a County Road designed to benefit the public. “The Pacific Legal Foundation is attempting to recast this issue as an anti-EPA “states rights” issue, and revising history as they go. The facts of the case simply do not support their claims,” said Steve Garske, UPEC Board member and member of the Mining Action Group.

The CR-595 proposal was controversial from its first incarnation as the privately-funded “Woodland Road” proposal, which the owners of Eagle Mine (then Rio Tinto) offered to fund. Promoters of the “Woodland Road” claimed its main purpose was to provide local citizens with easier access to the roadless interior of Marquette County for hunting, fishing, berry-picking, and other recreational activities, while dodging massive ore trucks. Federal agencies objected to the “Woodland Road” plan on the grounds that impacts to wetlands and streams were poorly quantified, and because the road’s stated purpose was highly inaccurate.

Contrary to the Wall Street Journal article, the objections raised by federal agencies were always quite specific, as seen in early March 2010: “The application must quantify aquatic impacts, especially the following: the loss of headwaters and wetlands associated with headwaters, in each watershed; the loss of rare wetland plant communities, including bogs, fens and wet meadows; and water quality degradation due to runoff containing pollutants, and clearly indicate how the loss of each of these features would be compensated. This is necessary to allow (Michigan environmental regulators) to fully evaluate whether compensation is possible for the unique functions lost within each of the four watersheds… Woodland Road application is deficient in several areas, including reasonable comparison of alternative routes, an adequate 404(b)(1) analysis, and an adequate compensatory mitigation proposal.” (*2)

Remote Mulligan Creek wetlands complex, at the site of the proposed CR-595 crossing, photograph by Amy Cherrette (2016).

Woodland Road was later renamed “County Road 595”; the proposed route would have cut through 22 rivers and streams, including the Dead River and Yellow Dog River Watersheds, Mulligan Creek headwaters, Voelker Creek, and Wildcat Canyon Creek, destroying approximately 25 acres of wetlands, directly impacting 122 wetland complexes, and bisecting a major wildlife corridor, fragmenting both habitat and hydrology.

“The EPA’s decisions were not ‘arbitrary and capricious’ as the Road Commission has contended. Instead, they were in alignment with the concerns of the other state and federal agencies charged with protecting our natural resources,” said concerned citizen Catherine Parker.

Narrow leaved gentian growing at the Mulligan Creek wetlands complex, in the path of the CR-595 project. According to the Michigan Natural Features Inventory, this rare native plant is a threatened species, ranked “S2, meaning imperiled in state because of rarity (6 to 20 occurrences or few remaining individuals or acres) or because of some factor(s) making it very vulnerable to extirpation from the state.” Photograph provided by Jeremiah Eagle Eye.

 

In 2012, when the EPA objected to the project’s failure to avoid or minimize impacts to wetlands and streams, it gave the MCRC and the Michigan Department of Environmental Quality (DEQ) 30 days to modify their plans. On January 3, 2013, the DEQ announced that it would not be issuing a permit for the project. The implication was that the state regulators simply ran out of time, and the mining company, impatient for a secured haul road, decided to invest in improving the existing route specified in its mining permit.

So Eagle Mine paid for a different seasonal road to be widened and paved as far as the mine’s gate, and plans for CR-595 were abandoned – but not forgotten.

After abandoning the CR-595 proposal, the Marquette County Road Commission “improved” an unpaved, seasonal road to serve as a Haul Route for Eagle Mine. The pavement ends at the gate of the mine. Photograph by Kathleen Heideman (May 2014).

 

In July 2015, the MCRC filed a lawsuit claiming the EPA had unfairly “blocked” the road’s construction. To be clear, the CR-595 project still could have been built, but wetland permits would need to be secured from the U.S. Army Corps of Engineers. Yet MCRC never applied to the U.S. Army Corps of Engineers for permits to build CR-595. “It seems that Eagle Mine and the Marquette County Road Commission are allergic to federal permits. Certainly they’ve avoided federal oversight at every turn,” said Loman.

MCRC’s lawsuit against the EPA was heard by Federal Judge Robert Holmes Bell in 2016. Judge Bell dismissed the lawsuit, stating that the MCRC “doesn’t have a viable claim against the EPA.” The MCRC appealed, and Judge Bell denied the motion for reconsideration. According to the Pacific Legal Foundation, attorneys and a mediator appointed by the appellate court were to have discussed a possible settlement by phone on March 6. If no resolution was reached, the case will proceed to the 6th U.S. Circuit of Appeals.

According to a federal attorney familiar with the case, such mediation will “address only the pertinent questions of law.” The facts of the case were previously addressed by the lower circuit court, which dismissed the Road Commission’s lawsuit against the EPA as baseless.

JUST THE FACTS

While the Wall Street Journal pairs the story with a photograph of scenic downtown Marquette, Eagle Mine’s trucks do not actually run through downtown Marquette. Those most affected by the mining trucks are local residents along the route which runs along the outskirts of Marquette and other small towns, and the so-called “groggy college students” at Northern Michigan University, where ore trucks and logging trucks pass the north edge of campus.

Save the Wild U.P.’s Summer Fellows at the site of the proposed CR-595 crossing of the Dead River wetlands complex (2015).

“College students are the ones who will inherit this mining mess in a few years — along with the financial responsibility for a thousand other contaminated mine sites, milling sites, and haul routes that haven’t been properly cleaned up. If the Marquette County Road Commission gets its way, these young taxpayers will also be saddled with the cost of constructing and repairing another haul road for Eagle Mine, on top of their college debts,” said Jeffery Loman, Keweenaw Bay Indian Community tribal member and former federal oil regulator.

According to Parker, “MCRC never had a case. Period. The evidence is right there in the files I received through Freedom of Information Act requests.”

“The road proposal was not an environmentally responsible option, and doesn’t fix any of the problems created for our community by the sulfide mining industry. The MCRC’s proposed dredge-and-fill, slash-and-burn method of road construction would produce exponentially more greenhouse gas than would be saved by shortening Eagle Mine’s haul route,” noted Alexandra Maxwell, a UPEC Board member.

The proposed CR-595 road would have destroyed dozens of heavily forested wetlands along the route. According to new research (*3), forested wetlands provide extremely high carbon sequestration benefits, trapping anywhere from 2,750 to 4,100 pounds of carbon per acre per year.

“It is important to remember that any potential benefit to air quality from the shortened trip will be offset by the fact that road construction effectively converts forests into pavement. Construction permanently cuts and burns the surrounding forest, releasing stored carbon dioxide into the atmosphere. Considering CR-595 would be approximately 66 feet wide for 22 miles (applicants stated that habitat removal would be at least 66 feet in width, totaling approx. 180 acres), this is a substantial loss for the climate,” said Emily Whittaker, Special Projects Manager for the Yellow Dog Watershed Preserve, another organization which has vigorously opposed the CR-595 project.

After the CR-595 road proposal was abandoned, the Marquette County Road Commission used slash and burn land-clearing methods to dramatically widen and pave the “Triple A” (a season unpaved road) as far as the gates of Eagle Mine. This photograph shows stumps and roots set on fire, using fuel accelerant, along the route. Photograph provided by Jeremiah Eagle Eye.

“More important than the question of carbon released or sequestered by the construction of a new haul road from mine to mill is the impact of the road itself to an undeveloped region of the Upper Peninsula. This road would be nothing like the ‘Woodland Road’ touted by its proponents. It would be an all-season ribbon of concrete within a wide corridor, a permanent swath fragmenting a sensitive and wild landscape,” remarked Jon Saari, historian and UPEC Board member.

“We should be thankful to the EPA for setting high standards for any big new highway. Our region is still recovering from the wounds of the last mining and logging era a hundred years ago. The Lonely Planet’s Best in Travel 2017 guide (*4) just cited the Upper Peninsula of Michigan as a national treasure for its beaches, waterfalls, small towns, and old forests — in other words its natural setting. The EPA recognized that, too, and showed some backbone in this political and legal fight,” said Saari.

Back in 2012, when the road proposal became mired in wetlands concerns, Michigan lawmakers were quick to make statements of support for the road, which touted short-term jobs to be created by road construction. Michigan’s unemployment rate has fallen sharply since then. But unemployment rates and robust economic development may not be the ultimate value in many residents’ minds. According to the results of a newly published survey by Michigan State University researchers (*5), most Michigan residents — 59% — “favor protecting the environment, even when there could be economic risks of doing so, such as job loss” and they “prioritize the environment over economic growth.”

The environmental threats are real. According to the 2014 report “Status and Trends of Michigan’s Wetlands” (*6), Michigan has lost 40% of its original wetlands since the start of European settlement. While the rate has slowed, wetland losses continue, with 41,000 acres of wetlands lost since 1978. The pressure to sacrifice Michigan wetlands for the sake of poorly-conceived roads or short-lived industrial developments – like CR-595 and Eagle Mine – continues. In requiring the MCRC to prove that a road through the wild heart of Marquette County was needed and would be designed to minimize impacts on the environment, especially wetlands, headwaters and aquatic resources, the EPA was doing its job: protecting our natural resources.

Aerial view of remote Wildcat Canyon Creek wetlands complex and logging trail, site of proposed CR-595 crossing, photograph by Kathleen Heideman (2015).

NOTES

  1. https://www.wsj.com/articles/how-a-michigan-county-road-got-stuck-in-regulation-purgatory-1488585470
  2. Letter dated March 12, 2010 from the U.S. Army Corps of Engineers to EPA Region 5, concerning the Woodland Road proposal.
  3. See: http://researchnews.osu.edu/archive/freshwetlands.htm, authored by Dr. William Mitsch at Ohio State University’s School of Environment and Natural Resources, with support from the U.S. Environmental Protection Agency and the National Science Foundation.
  4. See: Lonely Planet’s Best in Travel 2017 (2016), p. 169.
  5. http://msutoday.msu.edu/news/2017/a-trump-twist-environment-over-economy-in-michigan/
  6. http://www.michigan.gov/documents/deq/DEQ-Water-Wetlands_-Status_and_trends_498644_7.pdf

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Founded in 1976, the Upper Peninsula Environmental Coalition’s purpose remains unchanged: to protect and maintain the unique environmental qualities of the Upper Peninsula of Michigan by educating the public and acting as a watchdog to industry and government. UPEC is a nonprofit, registered 501(c)(3) organization. For more information, call 906-201-1949, see UPenvironment.org, visit our Facebook page, or contact: upec@upenvironment.org.

The UPEC Mining Action Group (MAG) is a grassroots effort to defend the clean water and wild places of Michigan’s Upper Peninsula from the dangers of sulfide mining – previously known as Save the Wild U.P. (SWUP). Contact the UPEC Mining Action Group at info@savethewildup.org or call (906) 662-9987. Learn more about the Mining Action Group at miningactiongroup.org or follow MAG’s work on Facebook or Twitter.