Huge U.P. mine opposed by Wisconsin tribe was approved despite major concerns from regulators, records show

Over and over, Michigan environmental regulators sounded alarms as they reviewed a proposed large, open-pit ore mine in the Upper Peninsula near the Menominee River, prized for walleye fishing and a major tributary to Lake Michigan. 

The mine on the Wisconsin border northwest of Marinette would send acidic mining wastes into the river and surrounding waterways, which would then spill into the Great Lake, staff said. More acres of wetlands would be harmed than the mining company was projecting, evaluators found.

Then the U.S. Environmental Protection Agency and the Michigan Department of Environmental Quality approved the mine anyway.

At stake in whether the Back Forty Mine proceeds is the potential endangerment of one of the most important rivers in Michigan, part of a system that drains more than 4,000 square miles of the U.P. and northern Wisconsin.

The river is culturally iconic to the Menominee Indians of Wisconsin, whose creation story includes that they come from the river’s mouth. Sacred burial grounds of the tribe are potentially threatened by the mine. The tribe is now among those appealing wetlands and surface water permit approvals for the mine. 

The level of Michigan regulators' concern, and at times frustration, with Canadian company Aquila Resources' plan to mine for gold, zinc and copper within 150 feet of the river has only now come to light, through agency documents presented as evidence in the appeal pending before an administrative law judge.

The open-pit sulfide mine would operate on 83 acres and its pit would be 2,000 feet by 2,500 feet, and 750 feet deep, according to the company. The life of the mine is planned at approximately seven years, and Aquila estimates it will produce:

• 512 million pounds of zinc.
• 468,000 ounces of gold.
• 51 million pounds of copper.
• 24 million pounds of lead.
• 4.5 million ounces of silver.

An on-site processing mill also will crush and refine minerals and ores through flotation, separation and the use of cyanide, according to the company's plans.

The Michigan Department of Environmental Quality emails, letters and memos show concern that Aquila Resources and its engineering firm, Green Bay-based Foth Infrastructure and Environment LLC, were understating the project's impact on the river and surrounding wetlands, according to regulators.

The methods Aquila was using to measure wetlands impacts were improper and the mining company wasn't changing them, Michigan DEQ staff said. The U.S. Environmental Protection Agency shared similar concerns, documents show.

Eric Chatterson, a geology specialist in DEQ's Water Resources Division, wrote there was a "high likelihood" that crushed minerals and ores from the mine "will be observed in the groundwater that discharges to the Menominee River and Shakey River," in an April 5, 2018, email to a department colleague.

He added that the problems would continue when the mine ultimately closed, stating, "Impacted groundwater from the backfilled pit is expected to migrate to local surface water sources."

That's a particular concern for many, as sulfide ores exposed to air and water undergo chemical reactions that create sulfuric acid that harms water quality and is toxic to fish and smaller aquatic organisms.

Aquila's permit request, according to DEQ staff, was also failing to capture the mine's full impact on surrounding wetlands, which are vital to natural habitat, erosion protection and water quality.

DEQ officials found that at some locations around the mine, operations would reduce the groundwater feeding wetlands "in excess of 6 inches to greater than 5 feet throughout the modeled life of the mine," wrote Kristi Wilson of the DEQ's Water Resources Division to Aquila Resources officials on Jan. 19, 2018.

The EPA was similarly concerned. Christopher Korleski, director of the Water Division at EPA's Region 5 that includes Michigan, wrote the DEQ's Coleen O'Keefe on March 8, 2018, stating the agency objected to the issuance of a permit for the mine for, among other reasons, that the company had not yet demonstrated that "the mine site plan is protective of water quality throughout the life of the mine and post-closure."

But two months later, on May 3, 2018, following a meeting with Aquila officials and "supplemental information" being presented to the EPA, Korleski changed his stance. 

"Based on the information EPA has received from Aquila, a number of objections identified in EPA's March 8 letter have been resolved," he stated. "In addition, 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."

But the information provided by Aquila provided little of new substance, said Janette Brimmer, an attorney with the environmental nonprofit Earthjustice who is representing the Menominee tribe in its permit appeal.

"That's the million-dollar question: What changed?" Brimmer said. "Nothing changed. Nothing changed on the ground. The data didn't change. Nothing changed other than, presumably, the politics. I would have liked to have been a fly on the wall in those EPA Region 5 meetings" with Aquila officials.

Tribe: This 'is our homeland'

For the Menominee Indian Tribe of Wisconsin, concerns about the Back Forty mine project go beyond potential environmental damage.

The tribe, with about 9,500 enrolled members, traces its creation story and history to the Menominee River, tribal Chairman Douglas Cox said.

"The story is that the first being associated with our tribe, the Great Bear, came out of the lake at the mouth of the Menominee River and walked onto the land," he said.

The area is known to the tribe as Sixty Islands, and further legends tell of an ancient Menominee woman who performed ceremonies in the area and was taken up by the spirits that live in the river, Cox said. 

"Our tribal members continue to visit that site and some say they can hear or see that ancient Menominee woman, who is still there today," he said.

The area near the mine "is our homeland," Cox said. "Our people still go there, they still fish there, they still gather there."

There are burial mounds with the remains of tribal ancestors "up and down the Menominee River," he said.

"If you tell Americans, 'We're going to go dig up your grandma and grandpa to build a mine, to build industry, to disturb the banks of a historic river that's in your blood,' how does that feel?" he said.

"It's protection of our cultural resources. There are cultural resources that are at risk from this development. We haven't gotten due attention under the law for our cultural resources."

EPA says its concerns were addressed

EPA Region 5 responded to Free Press requests for an interview with an emailed statement, stating Aquila's requirement to finalize plans with the State of Michigan and evaluate impacts prior to starting construction in wetlands addressed the agency's concerns. 

The EPA reversal put the DEQ on a clock: Approve or reject the mining company's wetlands, lakes and streams permit within a month, by June 6, 2018, or authority on the permit application would transfer from the state agency to the U.S. Army Corps of Engineers.

Scott Dean, a spokesman for the DEQ, which is now known as the Department of Environment, Great Lakes and Energy, or EGLE, touted the approved permit's provisions that Aquila Resources must meet, including "an enhanced groundwater modelling and monitoring plan consistent with industry best practices," annual monitoring data to guard nearby wetlands over the years of the mine's operation, and adaptive protections that ramp up "if adverse water impacts are detected during the life of the project."

Aquila Resources officials also responded to Free Press interview requests with an emailed statement.

"Aquila Resources, Inc. has obtained all the major permits for the Back Forty Project. ... Each of these permitting processes allowed for extensive public comment and participation, which we actively engaged in, listening to and learning from our stakeholders. Our permits contain stringent terms and conditions to ensure the project operates with minimal impact on the Menominee River, groundwater, wetlands, and other natural resources."

More hearings on the appeal ahead

There is no further opportunity for the public to comment on the Back Forty Mine's wetlands and surface waters permit. Hearings on the tribe's permit approval appeal are scheduled through Wednesday in Lansing, but may be extended to a later date, Brimmer said.

The tribe is also challenging the U.S. Army Corps of Engineers' failing to act as the primary permitting authority for the Back Forty mine. The tribe is slated to present oral arguments in the 7th Circuit Court of Appeals in Chicago on Sept. 5, Brimmer said.

"We're going to keep fighting," Cox said.

Contact Keith Matheny: 313-222-5021 or kmatheny@freepress.com. Follow on Twitter @keithmatheny.