Menominee Tribe Files Notice of Intent to Sue Over Back Forty Wetland Permit
On November 6th, Earthjustice filed a 60 Day Notice of Intent to Sue (NOI) the U.S. Army Corps of Engineers (USACE) and Environmental Protection Agency (EPA) over the jurisdiction of the wetland permit for the Back Forty Mine proposal on behalf of the Menominee Indian Tribe of Wisconsin.
The wetland permit is the last of four permits Aquila Resources needs to proceed with their proposed sulfide mining project on the shore of the Menominee River.
This summer, the Menominee Tribe asked USACE and EPA to use their authority under the Clean Water Act (Section 404 Permits) to take over the review of the wetlands permit application. Neither agency has taken back their authority, which has lead the Menominee Tribe to pursue this action. For most states the USACE has a role in reviewing wetland permit applications. This is not the case in Michigan. The state of Michigan has been given sole authority to review wetland permits. The Menominee Tribe believes the state of Michigan should not have been delegated this authority for this proposal.
The Notice of Intent states:
“The Menominee River for its entire length is an interstate river, forming the border between the States of Wisconsin and Michigan and is a water which is presently used, or is susceptible to use, in its natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to its ordinary high water mark including wetlands adjacent thereto. The Corps’ own study in 1979 and subsequent recommendation by its counsel finds this to be true, beginning with extensive use of the Menominee River and its tributaries for commerce associated with logging and power generation through present day use for recreation, tourism and fishing.
The entirety of Menominee River and its adjacent wetlands are not delegable, nor could they have been delegated, to the State of Michigan for Section 404 permitting and therefore the State of Michigan cannot exercise Section 404 jurisdiction for the Back Forty Project permitting.”
In the NOI the Menominee Tribe has asked for the USACE to assume its full authority for the Back Forty permit application. If this does not happen within 60 days, “the Menominee Tribe reserves the right to take appropriate legal action to compel the Corps and EPA to comply with the Clean Water Act and applicable regulation to protect the Menominee Tribe, the Menominee River, and wetlands adjacent to the river.”
Aquila Resources has submitted their wetland permit application several times this year, but all applications to date have been returned to the company by Michigan Department of Environmental Quality for further work.
National environmental firm to represent Wisconsin tribe in mine suit (2017, Nov. 7) Wisconsin State Journal