Tuesday, December 13, 2011

Milwaukee Riverkeeper Weighs In Against Mining Bill

Here's a cogent explanation of the unprecedented problems embedded in the Assembly's fast-tracked bill to fast-track mining and cause widespread degradation of the state's publicly-managed waterways - - up to and including re-routing rivers or filling wetlands, without public hearings.

Related matters, here and here.

Comments on Wisconsin Assembly Mining Bill (LRB 3520/1) Wednesday, December 14, 2011 Tommy Thompson Youth Center, State Fair Park, Milwaukee

My name is Cheryl Nenn, and I’m speaking on behalf of Milwaukee Riverkeeper. Milwaukee Riverkeeper is a non-profit organization dedicated to protecting water quality and wildlife habitat in the Milwaukee, Menomonee, and Kinnickinnic River Watersheds.

We oppose Assembly Mining Bill (LRB 3520/1), which is the latest in a series of bills that weaken environmental and health protections and prevent the public from holding polluters accountable.

While seemingly written at the behest of an out-of-state mining company proposing a strip mine of unprecedented size up north, this bill will apply to iron mines throughout the state and could result in mining proposals in our watershed.

Perhaps of most concern is the way that this Assembly Mining Bill was written behind closed doors by mining companies and the process by which it is being rammed through the legislature.

At the same time, this bill takes away the voice of Wisconsin citizens to contest future projects that could affect the safety of their drinking water, and their ability to fish, swim, and enjoy their local waterways so a mining company can make a buck.

We are very concerned that LRB 3520/1 eliminates all opportunities for citizens and experts to question or contest the information submitted by a mining company, to request contested case hearings challenging DNR’s approval of their permits, or to challenge DNR’s enforcement of environmental laws.

LRB 3520/1curtails the ability of the communities impacted by a mine to enforce their own zoning requirements or to negotiate for conditions to protect themselves, which sets a very bad precedent not only for this legislation but for future bills.

The Assembly Mining Bill elevates mining above all other industries and businesses in the state, applying special rules that allow mines to bypass the environmental and public health requirements that apply to everyone else.

In fact, the bill mandates that if there is a conflict between the proposed mining law and other environmental laws, the mining law trumps environmental laws. This is all fine and good, until someone’s drinking water or right to use their lake or river is put at risk.

And this is likely, given that LRB 3520/1 allows mine wastes to be piled next to rivers and lakes, in floodplains and areas where groundwater contamination is likely and surface water contamination is probable.

LRB 3520/1 requires DNR to allow wetlands to be filled, even the most critically important wetlands, as long as the mining company provides “mitigation” anywhere else in the state.

Man can not create wetlands that nature has created over thousands if not hundreds of thousands of years.

Constructed wetlands do not function like natural wetlands to store, infiltrate, and clean runoff or absorb runoff to minimize downstream flooding.

Protection of wetlands is the most cost-effective flood management strategy that we have. To allow constructed wetlands to be placed outside of the affected watershed means the local community affected by a mining project will not be protected from the water quality or flooding impacts of such projects.

This is completely unacceptable.

The Army Corps of Engineers has also said that such provisions would likely result in the Federal Government leaving the current joint permitting process for wetland impacts.

This would require mining companies to obtain separate Federal and State 404/401 permits (under the Clean Water Act), which would increase permitting times and not decrease them per the intent of this bill.
LRB 3520/1 requires DNR to permit structures and fill in waterways, to allow rivers to be altered, straightened, widened and dredged as long as it won’t “significantly” impair public rights, flood capacity, rights of riparian owners or water quality.

“Significantly” is not defined and open to interpretation.

In addition, the proposed changes removing citizen’s ability to contest permits means it will be much more difficult to question agency interpretations of whether or not mine projects impair local waterways.

This could result in more lawsuits in State courts and significantly delay projects.

LRB 3529/1 also requires DNR to allow wells or direct water withdrawals from rivers or lakes even if it will severely draw down groundwater, rivers or lakes because it is assumed that the needs of the mine are in the best interest of the public.

This also conflicts with provisions in the Clean Water Act. Water quality and water quantity are inextricably linked, and reductions in base flows can affect a stream’s physical, biological, and chemical integrity.

Reducing river flows, especially in sensitive headwater streams, affects water quality parameters such as bacteria, temperature, and sediment, and can alter stream habitats and their ability to support aquatic life and other designated uses that depend on stream flow. This provision could result in backsliding of water quality and lead to litigation.

The Assembly Mining Bill takes science out of decision making—the bill requires environmental analysis documents to be crafted in less than year, which is not realistic to look at impacts of these types of projects on water resources.

The bill also creates unworkably short permit review timelines for DNR staff and then provides for presumptive permit approvals if DNR staff can’t review project materials fast enough. It also removes public hearing requirements under the NEPA/WEPA process, which is arguably illegal and subject to litigation.

The bill would also eliminate the ability of the DNR to monitor a mining operation for its compliance with the clean water act and other laws, and thus makes it impossible for DNR to exercise its enforcement authority if there is a substantial threat to public health and safety or the environment.

This could result in the US EPA coming in and de-delegating the DNR as the local authority for implementing the Clean Water Act. Earlier this year, the US EPA submitted a letter to DNR outlining existing deficiencies in 75 areas, which could lead them to lose their program.

Removing DNR’s authority to conduct enforcement action on mining projects could possibly force EPA’s hand and result in the Federal Government taking over enforcement of water regulations. This would be an embarrassment to Wisconsin, and could be a real threat to our $12 billion water based tourism economy.

For all these reasons, please vote no on LRB 3529/1. Thank you.

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