(Tribune News Service) — Michigan environmental regulators did not correctly handle a mining company's wetlands permit application for a controversial, open-pit sulfide mine within 150 feet of the Menominee River in the western Upper Peninsula, an administrative law judge ruled Monday as he rejected the permit.
Aquila Resources Inc. proposes to mine for gold, zinc and copper within 150 feet of the river — in the western U.P. on the Michigan-Wisconsin border — via an open-pit sulfide mine on 83 acres, with its pit 2,000 feet by 2,500 feet, and 750 feet deep, according to the company. An on-site processing mill also would crush and refine minerals and ores through flotation, separation and the use of cyanide, according to the company's plans.
The Menominee River is a major tributary to northern Lake Michigan, draining more than 4,000 square miles of the U.P. and northern Wisconsin, and many local residents have expressed concern about the mine's potential degradation of the river, lake and nearby streams and wetlands.
The Michigan Department of Environment, Great Lakes and Energy (EGLE), then known as the Department of Environmental Quality, rejected multiple wetlands permit requests by Aquila as insufficient beginning in 2015. In April 2018, EGLE staff said the groundwater computer modeling the company was utilizing in its latest revised request was inadequate for assessing the project's wetlands impacts, adding there was an ongoing lack of needed information from Aquila. A March 2018 letter from the U.S. Environmental Protection Agency showed federal regulators had similar concerns.
But two months later, on May 3, 2018, following a meeting with Aquila officials and "supplemental information" being presented to the EPA, the federal agency changed its stance. Under pressure to approve the permit at the state level or have authority revert to the EPA, EGLE officials the following month approved the wetlands permit, leaving numerous provisions Aquila had to follow before work could proceed, including new groundwater level evaluations using methods approved by EGLE. The permit allowed for the filling of almost 6 acres of wetlands, with an indirect impact to more than 17 acres of wetlands from reductions in groundwater supply.
Critics, including nearby property owners, the Menominee Indian Tribe of Wisconsin and environmental groups, contended virtually nothing changed between when state and federal regulators had concerns about Aquila's wetlands permit and when they green-lighted it several weeks later. They also contended it was highly unusual for EGLE to approve Aquila's permit, then attach major conditions for the company to meet before beginning work. Typically, an applicant has to meet the conditions before such a permit is approved.
Nearby resident Tom Boerner and the Menominee Tribe contested the permit approval.
Administrative law judge Daniel L. Pulter, in his ruling Monday, cited EGLE's unusual permit approval with conditions, referencing Part 303 of the Michigan Natural Resources and Environmental Protection Act of 1994, which pertains to wetlands regulation.
"For a Part 303 application to be administratively complete, it must contain a reliable identification of wetlands impacts," Pulter stated in his ruling. "A conditional permit that requires an applicant to provide evidence — after the fact — to satisfy permitting criteria is not permissible."
Pulter added that Aquila "failed to demonstrate that there are no feasible and prudent alternatives" to the acres of wetlands it proposes to fill.
Menominee Tribe chairwoman Joan Delabreau, in a statement, said tribal members were pleased with the judge's ruling.
“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," she said.
Aquila officials, in a statement, said the company "strongly disagrees" with Pulter's decision, adding they believe it was based in significant part on the judge's "misunderstanding" of the company's information on potential indirect wetlands impacts from the mining project.
Aquila has worked with EGLE staff for 31 months to meet the conditions of the approved permit, including a revised groundwater model. "The company will continue to work with EGLE and believes it will successfully resolve the issues cited in the judge's decision," company officials stated.
"The company is evaluating its alternatives, which include the submission of an updated permit application or appealing the decision to the EGLE environmental review panel," Aquila President and CEO Barry Hildred said.
EGLE spokesman Scott Dean said the agency is still reviewing the decision, and had no comment.
(c)2021 the Detroit Free Press
Visit the Detroit Free Press at www.freep.com
Distributed by Tribune Content Agency, LLC.